Court File and Parties

COURT FILE NO.: CV-14-117817

DATE: 2020-12-21

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Robert Crosbie Plaintiff

– and –

Brishna Aryan and Munir Hakim Defendants

COUNSEL:

P. Michael Rotondo, for the Plaintiff

Jeremy Shaw, for the Defendants

HEARD: Via Zoom – December 15, 2020

REASONS FOR DECISION

EDWARDS J.:

Overview

[1] The Defendants seek an order removing the Plaintiff’s counsel Michael Rotondo (“Rotondo”) as counsel of record arguing that Rotondo cannot be counsel and a witness in the same proceeding. For the reasons that follow this motion is dismissed with leave to bring a further motion in the event further evidence establishes that Rotondo will in fact be a witness at trial.

The Facts

[2] This matter arises out of a motor vehicle accident which occurred on March 9, 2012. This matter has proceeded through the court system in a leisurely fashion. Examinations for discovery were completed in August 2015. The matter has yet to be pre-tried. The Defendants have not even scheduled defence medical examinations. It is precisely this type of delay which brings the administration of justice into disrepute.

[3] The Plaintiff is presently 71 years of age. He used to work in the towing industry and began working as a paralegal in 2000 through his company REC Paralegal (REC). In 2008 he applied to the Law Society of Upper Canada (now the Law Society of Ontario). In December 2011 he was granted a license to practice as a paralegal.

[4] On January 1, 2012, the Plaintiff commenced working as an employee of KLC law firm (KLC) where he held the position of accident benefits consultant. Crosbie, along with a number of other individuals were named as defendants in an action that ultimately resulted in a substantial judgment in 2016 arising out of allegations that the Plaintiff, together with other named individuals removed files from a law firm where the Plaintiff had been employed.

[5] As a result of injuries which are alleged to have occurred in the motor vehicle accident, the Plaintiff was unable to work at KLC.

The Plaintiff incorporated CMR Personal Injury Litigation Professional Corporation (CMR) in 2013. CMR was a marketing and referral network which included Rotondo. CMR operated until the spring of 2015.

[6] Since 2007, Rotondo acknowledges that he has been in a business relationship with the Plaintiff pursuant to which files are referred and fees are split. This relationship continues to date as confirmed by Rotondo during the course of the hearing of this motion.

[7] No subpoena has been served on Rotondo by the Defendants.

Position of the Moving Party

[8] The Defendants argue that because of the ongoing business relationship and the fact that Rotondo was a director of CMR that there is an obvious conflict between Rotondo’s role as counsel for the Plaintiff and his role as a person who has direct knowledge of the Plaintiff’s sources of income. The defence argues that Rotondo will inevitably be a witness at the trial.

Position of the Plaintiff

[9] While the Plaintiff does not dispute Rotondo’s ongoing business relationship nor his role as a director of CMR, the Plaintiff argues that his loss of income claim will be based solely on his income tax returns, copies of which have been provided to the Defendants. As such, it is argued that Rotondo will not be an “essential witness” as suggested by the Defendants.

The Law and Analysis

[10] It is well recognized that on a motion to remove a lawyer as the solicitor of record, the court must balance three competing values: a) the maintenance of the high standards of the legal profession and the integrity of our system of justice; b) the right of a litigant to one’s choice of counsel which he or she should not be deprived of without just cause; and c) the desirability to permit mobility in the legal profession. See MacDonald Estate v. Martin, 1990 23 (SCC).

[11] Since the Supreme Court’s decision in MacDonald Estate, there have been numerous decisions of this and other courts dealing with similar motions to remove lawyers from their role as solicitor of record. The Divisional Court in Essa (Township) v. Guergis, 1993 8756 (ON SCDC), 1993 O.J. No. 2581, set forth a number of factors which the court should consider on such a motion. These factors include the following:

a) the stage of the proceedings;

b) the likelihood that the witness will be called;

c) the good faith (or otherwise) of the party making the application;

d) the significance of the evidence to be led;

e) the impact removing counsel on the party’s right to be represented by counsel of choice;

f) whether the trial is by judge or jury;

g) the likelihood of a real conflict arising or that the evidence will be “tainted”;

h) who will call a witness if, for example, there is a probability counsel will be in a position to cross examine a favorable witness, a trial judge may rule to prevent that unfair advantage arising; and

i) the connection or relationship between counsel, the prospective witness and the parties involved in the litigation.

[12] In adopting the aforementioned factors, the Divisional Court made it clear that the court when dealing with a motion to remove a party’s chosen lawyer of record “should be reluctant to make what may be premature orders preventing solicitors from continuing to act”. In making the aforesaid admonition, the Divisional Court expressly took into account the expense of litigation and the potential waste of time and money and delay which could result from an order removing a solicitor and as such, such orders should only be made in the clearest of cases.

[13] Adopting the principles of the Supreme Court in MacDonald Estate as well as the various factors referenced by the Divisional Court in Essa, it is important to consider the context in which Rotondo could potentially be called as a witness in this case. The evidence that is relied upon by the Defendants largely revolves around Rotondo’s prior and ongoing relationship with the Plaintiff in referring files amongst themselves as well as his prior involvement with CMR. The evidence that Rotondo might be called upon to provide relates almost exclusively to the Plaintiff’s claim for past and future loss of income.

[14] Filed as part of the motion materials before this court are the Plaintiff’s tax returns which cover the years 2009 through 2016. It is noteworthy that the Plaintiff’s tax returns for 2011 through 2016 were not filed until well after the 2012 accident and in fact were not filed until after the commencement of this litigation. There is no explanation for that late filing.

[15] A review of these tax returns confirms that the Plaintiff only had employment income in 2012 when he declared T4 income to the Canada Revenue Agency (“the CRA”) of approximately $30,000. The Plaintiff in his affidavit confirms that he began working as an employee at KLC on January 1, 2012 and that because of the injuries sustained in the accident on March 9, 2012, he was off work until April 2012 when he resumed his relationship with KLC “working on a few client matters on a subcontractor basis until he underwent surgery to his right shoulder in March 2013”.

[16] Prior to 2012, his tax returns that cover the time period 2009 through 2011 reveal that the Plaintiff had no employment income and that apart from rental income, his sole source of income was business income which, net of expenses, either left him with a negative income or minimal income at all. His tax returns for 2013 through 2016, apart from rental income, demonstrates that the Plaintiff’s sole source of income comes from his business which net of expenses either left him with no income or an income that ranges from approximately $10,000 to $37,000.

[17] What is significant from the Plaintiff’s tax returns apart from the amounts declared to CRA is the fact that the Plaintiff has filed tax returns which were prepared by an accountant. Included in the tax returns is a statement of business affairs listing the Plaintiff’s gross business income and the expenses incurred resulting in the net income declared to CRA. The backup documentation for the statement of business affairs has not been produced. The defendant argues that Rotondo will be in a position to provide evidence with respect to the Plaintiff’s business income. In my view, the best evidence with respect to the Plaintiff’s claim for past and future wage loss can be found in the Plaintiff’s declared income to CRA. If the Plaintiff intends to advance any claim that differs from the income which he has declared to CRA, then Rotondo’s evidence could potentially become relevant. At this stage of the proceedings, I am of the view that the motion is premature.

[18] The Plaintiff has not filed any expert’s report that would suggest the basis upon which his income loss will be determined other than in accordance with the information supplied to CRA as revealed in his tax returns filed on this motion.

[19] As the Divisional Court in Essa makes clear, an application to remove counsel can be made to the trial judge when it is certain there is a problem. At this stage of the proceedings I am not satisfied that in fact a problem has arisen or for that matter, will arise. In part, this can be demonstrated by the fact that the Defendants have not served a subpoena on Rotondo.

[20] Should it materialize that the Plaintiff intends to advance a loss of income claim that is inconsistent with the income that he has declared to CRA, it may very well transpire that Rotondo could become a witness in these proceedings, particularly given his past and ongoing relationship in which the Plaintiff and Rotondo appear to be working together in a file referral system that results in fees being exchanged between them.

[21] While the matter of production of the supporting documents for the Plaintiff’s income and expenses is not before me as I indicated during the course of argument, there should be no issue that the Plaintiff’s business records should be produced to the Defendants forthwith and that if such documentation is not available the Plaintiff should make inquiries of his accountant to produce the books of original entry from which the information was derived that is reflected in his tax returns.

[22] The Defendants’ motion for the reasons set forth above is therefore dismissed without prejudice to the Defendants renewing such motion in the event the Plaintiff pursues a past and future wage loss claim that is inconsistent with the evidence reflected in his income tax returns.

[23] The Plaintiff is entitled to his costs of this motion on a partial indemnity basis. Counsel provided to me during the course of argument their estimates with respect to their expectations had they won or lost the motion. In my view, the Plaintiff should be entitled to the costs which the Defendant would otherwise have expected had they won this motion and as such, I am fixing costs in the amount of $5,000 inclusive of HST and disbursements.

Justice M.L. Edwards

Released: December 21, 2020

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Robert Crosbie Plaintiff

– and –

Brishna Aryan and Munir Hakim Defendants

REASONS FOR DECISION

Justice M.L. Edwards

Released: December 21, 2020