Court File and Parties
Newmarket Court File No.: FC-16-51535-00 Date: 2021-10-14 Superior Court of Justice – Ontario – Family Court
Re: Terezia Gyurko, Applicant And: Attila Gyurko, Respondent
Before: The Honourable Mr. Justice R. Kaufman
Counsel: J. Persaud, Counsel for the Applicant I. Apter, Counsel for the Respondent Attila Gyurko
Heard: October 13, 2021
Ruling on Motion
[1] Mr. Apter brings this motion for an order removing him as solicitor of Record for the Respondent Attila Gyurko. The motion was brought on an urgent basis. It need not have been brought in this manner. In these Pandemic times, the Courts are being inundated with urgent matters or supposedly urgent matters that are placed on already overcrowded dockets. The ensuing workload is, at times, becoming overwhelming for the Judiciary, the Judicial Assistants, and the court staff.
[2] Requests for a solicitor to be removed as counsel of Record are routinely brought by way of 14B Motion. Almost always, motions such as these are procedural and uncomplicated and usually unopposed. That is the procedure that should have been followed and it is for that reason that I rejected Mr. Apter’s request to file a responding affidavit in response to the Applicant’s responding affidavit. The fact that his office has ascertained that the next available motion dates are not until April 2022 is irrelevant if the correct process had been followed.
[3] Although Mr. Apter’s motion requests that he be removed as solicitor of Record for the Respondent, the retainer Agreement that has been presented as an exhibit, authorizes Ashley Krol, Henry Krol, and the solicitors at Krol & Krol to act on behalf of the Respondent. There are problems yet again. The affidavit of Alana Smith, a law clerk with the law firm of Krol & Krol, indicates that the signed retainer Agreement was attached as an exhibit. The exhibit placed before me is not signed.
[4] The affidavit of Ms. Smith also surmises that the Settlement Conference scheduled for October 29, 2021 is likely to be converted into a second Case conference due to outstanding disclosure attributed to both parties. The Family Law Rules presume there will be one Case Conference and one Settlement Conference. Due to the prevailing workload, the Court does not have available time to grant a repeat of an event. I note as well that the Case Conference was heard on October 2, 2020. Some 13 months have lapsed between these scheduled events. It is difficult for this judicial officer to comprehend why disclosure remains outstanding and why a motion was not scheduled to remedy any alleged disclosure defects.
[5] In addition, whereas the motion specifically requests an order removing Mr. Apter as counsel of Record, it does not ask for the law firm of Krol & Krol to be removed. As noted in the ensuing paragraphs, this has caused confusion for the Respondent.
[6] Ms. Smith’s affidavit alleges a breakdown in the solicitor and client relationship. The Retainer Agreement stipulates that there are limited circumstances wherein the law firm may terminate the retainer. In general terms, failure to provide reasonable instructions or failure to pay for services rendered or the existence of a breakdown in the solicitor and client relationship will suffice to terminate the Retainer Agreement. It would have been helpful if the supporting affidavit would have provided the basis for the motion rather than relying on a bald assertion that grounds exist. The Court should not have to guess as to the nature of the problem between the firm and counsel.
[7] Mr. Persaud, counsel for the Applicant has notified the Court that his client will not partake in the motion nor file a responding affidavit.
[8] The Respondent has filed his own affidavit alleging numerous factual inaccuracies and misleading “evidences”. Amongst his submissions, he states the following:
His mailing address is incorrect on all of the documents;
Whereas he acknowledges signing the Retainer Agreement, he seemingly refutes Ms. Smith’s affidavit alleging that the respondent had retained Mr. Apter and states that he only retained Ashley Krol and Henry Krol and the firm of Krol & Krol but, implicitly, not Mr. Apter;
He blames the deterioration of the solicitor/client relationship on Mr. Apter’s refusal to follow his legal and just requests to the extent that Mr. Apter wanted to extricate himself from the solicitor/client relationship by having the client sign a Notice of Intent to Act in Person;
The Respondent does not wish to be self-represented or represented by Mr. Apter and wanted his file assigned to either Ashley Krol or Henry Krol but Mr. Apter refused to do so;
If this motion is granted, the Respondent is requesting an adjournment of the pending Settlement Conference in addition to monetary damages from the firm of Krol & Krol;
He notes that his Brief is due by October 25, 2021. I note that Mr. Apter has indicated a willingness to facilitate an orderly exchange of the file free of charge;
The Respondent provides some substance that may have resulted in a perceived breakdown of the solicitor and client relationship. I will not repeat his assertions so as to avoid prejudicing the Respondent in the ongoing proceedings. From my perspective, I would think that there must have been more than the two examples provided to me by the Respondent to have justified the law firm to request that it be removed as counsel of Record;
The Respondent concedes that he does not want Mr. Apter’s representation but that he does want to be represented by either Ashley Krol or Henry Krol. He wishes the firm to mange this dispute internally and submits that this motion should also be managed internally;
In the event the firm denies his request to provide legal services by another member of the firm, then the Respondent seeks a refund of all funds paid to the firm within five business days.
[9] I note that the motion and affidavit were served upon the Respondent by Ashley Krol. Ms. Krol also served Mr. Persaud with the motion. I assume that she is aware of the contents of the motion and the affidavits.
[10] I have also reviewed the draft Order submitted by Krol & Krol which purports to remove Mr. Apter as counsel of Record for the Respondent. It is silent on removing the law firm of Krol & Krol.
[11] Finally, according to the Respondent, the law firm is using his incorrect mailing address, the correct one being 5546 Fawn Bay Road, Ramara, Ontario. L3V 0N2.
Analysis
[12] I am unable to ascertain if Mr. Apter is relying upon ethical reasons for requesting that he be removed as counsel of Record. For my purpose, I am content that he references the Rules of Professional Conduct.
[13] It is evident that the Respondent does not want Mr. Apter as his counsel. I am unable to order another member of the firm to assume carriage of the file. I must presume that Mr. Apter represents the firm’s position notwithstanding the motion does not request that the firm also be removed as counsel of Record.
[14] I am unable to order that the firm refund the retainer funds received from the Respondent. If the Respondent has concerns in that regard, he may arrange to assess the firm’s accounts. If required, the Law Society of Ontario may be able to direct him as to the process.
[15] There is, of course, nothing to prevent the Respondent from approaching Ashley Krol or Henry Krol to ascertain if they will assist him. He should do so immediately. If they are not so inclined, then Mr. Apter will provide the Respondent with the material that he indicated he would provide. In addition, he shall provide the Respondent with a blank Settlement Conference Brief to enable the Respondent to complete the form and serve it upon Mr. Persaud within the required timeframe.
[16] A revised Order is required as the Respondent’s correct mailing address and email address should be inserted and the body of the order should indicate with some precision who is being removed as counsel of Record.
Justice R. Kaufman
Date: October 14, 2021