Court File and Parties

COURT FILE NO.: CV-17-580948 MOTION HEARD: 03292022 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Corey Libfeld, Plaintiff AND: Hariri Pontarini Architects, Defendant

BEFORE: Associate Justice Jolley

COUNSEL: Matthew Sokolsky, counsel for the moving party plaintiff’s counsel Teplitsky Colson Allan Dick and Daniel Hamson, counsel for the responding party plaintiff

HEARD: 29 March 2022

Reasons for Decision

[1] Teplitsky Colson (the “firm”) brings this motion for an order removing it and Stephen Brunswick as lawyers of record for the plaintiff. It argues that there has been an irreparable breakdown in the relationship between the plaintiff and the firm.

[2] The plaintiff raised a preliminary objection at the last attendance before me, arguing that McEwen, J. was required to hear this motion as he had made an order in the context of his management of the ongoing family action involving the Libfeld brothers that restrained persons with oral or written agreements with the family group of companies from altering or terminating the supply of their services. McEwen, J. has since confirmed that this motion is appropriately before me.

[3] The plaintiff opposes the motion. He argues that there is in fact no breakdown, and certainly not an irreparable one, as evidenced by the fact that the firm continues to act for him on other family related matters.

[4] The firm argues that it could not obtain instructions from the plaintiff, despite advising him as early as February 2020 of the five year deadline of August 2022 to set the action down and stating that “you need to decide what you want to do and are so advised”. The records support that the plaintiff indicated he would retain new counsel and never did. He was then occupied by a lengthy and difficult commercial trial with his brothers, which was heard on various dates between November 2020 and February 2021.

[5] While the plaintiff did provide instructions to proceed after he was served with this motion record, in the firm’s view, it was too little too late. In any event, the relationship had badly deteriorated by that point.

[6] The crux of the firm’s complaint is the breakdown in the relationship. In May 2021 the firm wrote to Mr. Hull who acts for the plaintiff in the commercial family dispute, advising that the plaintiff had not provided them with instructions to move the matter forward or complete the discovery requirement and that he had not responded to the February 2020 email advising him of the five year deadline. Mr. Brunswick, the firm lawyer in charge of this matter, indicated in that email that he would not speak to the plaintiff, that the plaintiff could communicate through Mr. Hull or other counsel and that if there was no response the firm would move to get off the record. While they have exchanged a few emails, Mr. Brunswick and the plaintiff have not spoken in two years and generally communicate through Mr. Hull as intermediary.

[7] In the communications the parties did have, the plaintiff was accusing the firm and Mr. Brunswick in particular of scheming with his brothers against him, of delaying matters to his detriment and to the benefit of his brothers and of violating his fiduciary duty to him.

[8] The plaintiff threatened to sue Mr. Brunswick if he moved to get off the record in the timeframe the firm had proposed, to report him to the Law Society and to the officer appointed by McEwen, J. in the commercial trial. Ultimately Mr. Brunswick took the extraordinary step of retaining his own counsel to “address the abusive email correspondence received from Corey Libfeld” (as set out in the letter from Mr. Lisus on behalf of Mr. Brunswick to counsel acting for various family members). Mr. Lisus concluded his letter of 10 June 2021 to the plaintiff by directing that all further communication involving the plaintiff and Mr. Brunswick was to be sent through Mr. Hull to Mr. Lisus.

[9] The plaintiff argues that any words exchanged were in the heat of the moment, were justified, were consistent with the tone of the long time relationship between him and Mr. Brunswick and were in the context of a different file.

[10] In all likelihood, these relationship issues would overwhelm the lawsuit issues, with the firm and the client at odds as much as the client and the defendant. Mr. Brunswick has deposed that “I cannot see myself having any productive conversation with Mr. Libfeld or meeting him to review and prepare for this case, including examinations for discovery among other things.”

[11] Whether these accusations were made in the course of this action or another action, I find that it would be imprudent, and inappropriate, to require a lawyer to act for a client who did not believe that the lawyer was acting in his best interests or worse, acting against his interests.

[12] The plaintiff argues that he will be prejudiced if the firm is removed as his counsel on this matter and not other matters on which the firm continues to act, as he will be at the whim of his brothers on those other matters. It is inferred that by keeping Mr. Brunswick as his lawyer on this file, he will have some leverage on the other family matters or that Mr. Brunswick will be reminded of his duties to the plaintiff when acting on the other family files. There is no logic or support for this and, in any event, it is a poor reason to keep warring counsel and client yoked on this file.

[13] I am satisfied that the firm has demonstrated good and justifiable cause for their removal as counsel. The plaintiff has had reasonable notice of this motion and will suffer no prejudice. While the five year limit is approaching, there is sufficient time to find counsel and proceed. The firm should not be prejudiced by any shortness of time as it has advised the plaintiff since May 2020 or thereabouts of its intention to bring this motion and the plaintiff has asked for more time to deal with it.

[14] While the firm provided a draft order, the draft does not contain any details as to the plaintiff’s address, phone number and email for future service. Plaintiff’s counsel is to provide this information to the firm and the firm will email Ms. Meditskos with a revised order for my signature.

[15] The parties have uploaded their costs outlines. If they cannot agree on costs, they may file upload costs submissions to caselines, no more than three pages in length, by April 30.

Associate Justice Jolley Date: 31 March 2022