COURT FILE NO.: CV-19-624340
RELEASED: 2020/10/28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Natasha Gangoo and Vincent Giuntoli v. Toronto Standard Condominium Corporation No. 1737
BEFORE: Master Graham HEARD: October 27, 2020
COUNSEL: Shawn Pulver and Daniel Litsos for the applicants (moving parties)
Blaine Fedson for the respondent
ENDORSEMENT
(Re: applicants’ motion to compel a rule 39.03 examination of respondent’s counsel and to remove respondent’s counsel as lawyers of record)
[1] The first issue on this motion is whether the respondents’ counsel Michael Spears should be compelled to attend an examination under rule 39.03 to give evidence with respect to the application.
[2] In their application, the applicants seek, inter alia, the following relief:
a. An Order invalidating the election results of Toronto Standard Condominium Corporation No. 1737’s Board of Directors’ election held on May 13, 2019;
b. An Order disqualifying or requiring the resignation of all current Directors of Toronto Standard Condominium Corporation No. 1737 and an Order that a new election be held for the five (5) Director positions.
[3] Essentially, the applicants’ position is that when the election was held, they tried to file proxies consisting of votes for themselves and the proxies were improperly rejected. The applicants seek to conduct the rule 39.03 examination of Mr. Spears based on the evidence in para. 16 of the affidavit of Naseer Abbasi, a district manager with the respondent’s property management company, filed in response to the application:
- On reviewing the 65 Invalid Proxies after they were deposited with TS 1737 I photographed one such example on my 'smart phone' and sent it to the lawyer for TS 1737, Mr. Michael Spears of DSFM, who confirmed that, provided that all of the 65 Invalid Proxies were lacking the date of the meeting and the name(s) of the proxy holders with related initials of Owners missing in the blanks provided in the prescribed form of proxy, then all of the 65 Invalid Proxies should not be accepted/exchanged for a voting ballot on the basis that they were all invalid. I advised the Chair of the Meeting, the President of TS 1737 Mr. Robert Macleod, as to the incomplete 65 Invalid Proxies and my discussion with Michael Spears, and he agreed with my view on that basis that all of the 65 Invalid Proxies would not be accepted/exchanged for voting ballots at the 2019 AGM. Accordingly, and considering that I had been asked to Chair the election portion of the Meeting, I advised the Applicant(s) of the Chairman's ruling that all of the 65 Invalid Proxies would not be accepted/exchanged for voting ballots. [emphasis added]
[4] The law applicable to a motion to conduct an examination of the opposing party’s lawyer is found in Marton v. Wood Gundy Inc., [2013] O.J. No. 1115, at para. 24, where Master Dash stated:
24 Finally I must take into account that even when being examined as to non privileged facts or on communications over which privilege has been waived, “there is a general policy against the practice of calling counsel for the opposing party to testify against his or her client. This should be avoided wherever possible. It should only be permitted in extraordinary circumstances which require a showing of high materiality and necessity. One of the factors is whether there is availability of other witnesses to give evidence or there are other means by which the fact can be proven.”[13] [emphasis added]
[5] The issue is therefore whether the moving parties have demonstrated the “high materiality and necessity” required to justify an order compelling an opposing lawyer to be examined in the proceeding in which they are acting.
[6] The applicants submit that they wish to examine Mr. Spears about the opinion that he provided to Mr. Abbasi regarding the validity of the proxies submitted by the applicants at the time of the respondent’s May 13, 2019 condominium board elections. However, Mr. Spears simply provided a legal opinion with respect to those proxies based on a photograph of one of the proxies and facts communicated to him by Mr. Abbasi. The respondent apparently chose a particular course of action based on what Mr. Spears told Mr. Abbasi, but Mr. Spears’ communication remains nothing more than an opinion. Counsel at the application may well advance the same opinion by way of argument, but it will ultimately fall to the judge hearing the application to decide whether or not the opinion was correct in law.
[7] My view in this regard is similar to that of Ricchetti J. in Milicevic v. T. Smith Engineering Inc., [2016] O.J. No. 1719. In that case, opposing counsel sought to remove a lawyer named McLean who provided a conflict opinion letter. In dismissing the motion, Ricchetti J. stated (at paras 100-101):
100 [A] determination whether there existed a conflict of interest will be dependent on all the facts (not necessarily just those set out in the Conflict Opinion letter) and the legal determination whether there was a conflict of interest by the trial judge.
101 In this scenario, it is difficult to understand why McLean’s opinion is relevant to the judge’s determination of whether a conflict existed in law. The fact McLean gave such an opinion doesn’t mean it was correct. It doesn’t mean it was wrong. In many cases, litigation counsel gives counsel an opinion on the merits of the litigation. That opinion is not relevant or admissible at trial. The court makes that legal determination from the evidence adduced at trial and the application of the law.
[8] Paraphrasing para. 101 of Milicevic, it is similarly difficult to understand how Mr. Spears’ opinion could be relevant to the application judge’s determination of whether the applicants’ proxies were properly rejected at the respondent’s May 13, 2019 Board of Directors election. Mr. Spears’ opinion may ultimately be found to be correct or not, but it should have no impact on the judge ultimately deciding the application. Any evidence that Mr. Spears might give in the event that he is examined under rule 39.03 would therefore be of minimal value, if any. The applicants have therefore not demonstrated the “high materiality and necessity” required to warrant an order compelling Mr. Spears to give evidence in the application.
[9] The motion to compel Mr. Spears to be examined under rule 39.03 is therefore dismissed.
[10] The second issue is whether Mr. Spears and his firm should be removed as the respondent’s lawyers of record. The applicants’ motion in this regard is based in part on their motion to compel Mr. Spears to be examined as a witness in the application and in part on the fact that another lawyer at the same firm, Michael Campbell, swore an affidavit in response to the applicants’ motion.
[11] The applicants rely on Rice v. Smith, 2013 ONSC 1200, [2013] O.J. No. 784 (S.C.J.) at paras. 14-17, in which the court stated that, while litigants should not be deprived of their counsel of choice without good cause, the courts may still exercise their inherent jurisdiction to remove from the record lawyers who have a conflict of interest. The court then stated (at para. 18):
18 One specific conflict of interest concern, (identified by almost identical provisions and commentaries in the codes of professional conduct adopted by the Canadian Bar Association and the Law Society of Upper Canada), is addressed by the long-established prohibition on a lawyer simultaneously acting as counsel and witness. In particular, a "lawyer must not in effect become an unsworn witness or put the lawyer's credibility in issue", and the "lawyer who is a necessary witness should testify and entrust the conduct of the case to someone else".
[12] With respect to Mr. Spears’ involvement, my dismissal of the motion to compel him to attend a rule 39.03 examination in the application means that there is no possible impropriety in him continuing to act for the respondent because he will not be both a witness and counsel in the same proceeding.
[13] Mr. Campbell, in his affidavit, reviews in detail the correspondence between counsel for the applicants and for the respondents in the period following the May 13, 2019 condominium board election, and then provides what is essentially a detailed legal opinion supporting the opinion of Mr. Spears that the applicants’ proxies were invalid. He then asserts that Mr. Nabbasi, whose affidavit refers to the advice received from Mr. Spears, would be in the best position to give evidence about the factual information communicated to Mr. Spears.
[14] By providing a review of correspondence between counsel, which speaks for itself, and a legal opinion with respect to the applicants’ proxies, Mr. Campbell has not put his credibility in issue, which is the concern raised in Rice, supra. There is no evidence in this affidavit that is contentious and my comments above with respect to the value of any examination of Mr. Spears on his legal opinion apply equally to the opinion of Mr. Campbell. The validity of the applicants’ proxies is ultimately a decision for the judge hearing the application and Ricchetti J.’s comments in para. 101 of Milicevic also apply to Mr. Campbell’s opinion.
[15] Accordingly, neither the opinion of Mr. Spears provided to Mr. Nabbasi, nor the opinion of Mr. Campbell in his responding affidavit on the motion, warrant the removal of their law firm as the respondent’s lawyers of record.
[16] For these reasons, the applicants’ motion to remove the respondent’s lawyers of record is also dismissed.
[17] Costs: At the conclusion of the hearing, counsel filed costs outlines and I told them that they could make written submissions after receiving my decision. If the parties cannot agree on the disposition of costs, they may make written submissions, the respondent within 20 days and the applicants within 20 days following delivery of the respondent’s submission. Submissions shall not exceed three pages.
[18] For the assistance of counsel in resolving the issue of costs, my comment based solely on their costs outlines is that the figure of $20,593.23 for partial indemnity costs in the respondent’s outline appears significantly excessive for a half day motion with no cross-examinations.
MASTER GRAHAM
October 28, 2020