Court File and Parties

COURT FILE NO.: CV-19-00000154-0000

DATE: February 7, 2022

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Elfriede Stumpacher, Plaintiff

AND:

Diane Dyer, Estate Trustee for the Estate of Stephen John Stumpacher, and the Estate of Stephen John Stumpacher, Defendant

BEFORE: Muszynski J.

COUNSEL: S. Baldwin, for the Plaintiff

G. Fournie, for de Vries Litigation LLP

D. Dyer, the Defendant personally

P. Chopra, on behalf of Donovan Kochman LLP

HEARD: February 1, 2022

ENDORSEMENT (motion to be removed as solicitor of record / trial adjournment)

[1] This estate litigation matter is on the February 14, 2022 running list for a 5-day, judge alone trial. On February 1, 2022 a motion by the defendants’ solicitor of record, de Vries Litigation LLP, was heard seeking to have them removed as solicitor of record.

Procedural History

[2] This matter was originally commenced by application on June 18, 2018. A statement of claim was subsequently issued on April 15, 2019 and a statement of defence was filed on May 6, 2019.

[3] Examinations for discovery were conducted in December 2020.

[4] A trial record was served and filed on January 7, 2021.

[5] On February 18, 2021 the defendants retained their current counsel, de Vries Ligation LLP.

[6] A pre-trial was conducted on September 2, 2021. On that date, the matter was scheduled to proceed to a 5-day, judge alone trial on the February 14, 2022 running list.

[7] On January 21, 2022, de Vries Litigation LLP served its notice of motion to be removed as solicitor of record.

[8] On February 1, 2022, during a regular motions list, this motion was heard.

Factual Background

[9] The plaintiff, Elfriede Stumpacher, was born on December 31, 1931 and is 90 years old.

[10] Mrs. Stumpacher was married to Stephen John Stumpacher on October 20, 2007. They remained a couple until Mr. Stumpacher died on June 1, 2018.

[11] Diane Dyer is the daughter of Mr. Stumpacher. Ms. Dyer is the estate trustee during litigation. She resides in Florida full-time.

[12] In this litigation, Ms. Stumpacher seeks various relief from the estate, including dependant’s support; payments from the estate; to set aside an invalid will; distribution of the estate by intestacy; or, equalization of net family property.

Position of the Parties

[13] Ms. Fournie, appearing on behalf of de Vries Litigation LLP, requests that their motion be granted citing a breakdown in solicitor-client relationship. Ms. Fournie acknowledged that her firm did not bring a motion to adjourn the upcoming trial but conceded that, if the motion is successful, an adjournment of the February trial would likely be required. Ms. Fournie’s position was that it was inappropriate for her firm to bring an adjournment motion as this would be the responsibility of Ms. Dyer’s new counsel or Ms. Dyer.

[14] Ms. Dyer attended at the motion personally. She agrees that there has been a breakdown in the solicitor-client relationship with de Vries Litigation and no longer has confidence in the firm. Ms. Dyer does not wish to be self-represented and has found a new lawyer that is willing to take on her case, but only if an adjournment of the February trial is granted. Accordingly, Ms. Dyer requests an adjournment of trial.

[15] Ms. Chopra attended as a friend of the court. Ms. Chopra is a lawyer at Donovan Kochman LLP and appeared on behalf of one of the firm’s partners, Noah Kochman. Ms. Chopra confirmed that Mr. Kochman is prepared to go on the record as counsel for the defendants if the February trial is adjourned.

[16] On behalf of Mrs. Stumpacher, Mr. Baldwin submits that this motion should not be granted if it results in an adjournment of the February trial and states that the subject motion is simply a delay tactic by Ms. Dyer. Further, it is noted that due to Mrs. Stumpacher’s age, there a need to proceed expeditiously and without further delay.

Analysis

[17] Rule 15.04 provides:

(1) A lawyer may move, on notice to his or her client, for an order removing him or her as lawyer of record.

(1.1) A motion under subrule (1) shall also be on notice to every other party, but a motion record need not be served on a party who is not the client.

(1.2) The lawyer making the motion shall ensure that any information contained in the notice of motion or in the motion record that is subject to solicitor-client privilege or that could, if it were disclosed to another person, be prejudicial to the client, including the grounds for the motion, is redacted or omitted from the notie of motion and from the motion record before,

(a) Serving the notion of motion or, if applicable, motion record on a party other than the client; or

(b) Filing the notice of motion or motion record.

(1.3) The lawyer shall provide to the presiding judge or officer at the hearing the complete and unredacted version s of the notice of motion and motion record, which shall be returned by the judge or officer to the lawyer after the hearing and shall not form part of the court file.

[18] As is appropriate, counsel for Mrs. Stumpacher was only served with a copy of de Vries Litigation LLP’s notice of motion. Further, de Vries Litigation filed with the court both redacted and unredacted copies of an affidavit of Justin de Vries in support of the motion. Mr. de Vries had primary carriage of Ms. Dyer’s file.

[19] During the hearing of the motion, Ms. Fournie requested that we go in camera to hear submissions on behalf of de Vries Litigation and Ms. Dyer in confidence to avoid the risk of compromising Ms. Dyer’s case by making submission in the presence of Mr. Baldwin. I agreed with this process and heard very brief in camera submissions of Ms. Fournie and Ms. Dyer before returning to the public hearing.

[20] During the public portion of the hearing, Ms. Dyer confirmed that she had lost all confidence in de Vries Litigation. Ms. Fournie echoed this concern and confirmed that there has been a complete breakdowns in the solicitor-client relationship. I agree. I accept the submissions of both Ms. Dyer and Ms. Fournie that there has been a breakdown in the solicitor-client relationship that makes a continuation of that relationship untenable.

[21] I do not accept the submission of Ms. Fournie that it was inappropriate for de Vries Litigation to bring a motion for an adjournment of the February trial at the same time as the motion to be removed as solicitor of record. In fact, I find that in the circumstances it was incumbent about them to do so. The approach of de Vries Litigation in this regard was short-sighted and had the potential to expose their client to having to proceed to trial in a matter of weeks as an unrepresented litigant when this was not Ms. Dyer’s intention.

[22] Given the tight time frame, I heard submissions from counsel on the issue adjourning the February trial in the absence of a written motion regarding the same due to Ms. Dyer’s insistence that she required an adjournment to permit her to retain counsel of her choice. In doing so, I rely upon Rule 1.04 which emphasizes the importance of approaching civil disputes expeditiously and in the least expensive manner.

[23] The main, and patently reasonable, concern of Mrs. Stumpacher is the prejudice associated with any delay in proceeding to trial. Mrs. Stumpacher swore an affidavit in response to this motion. While no specific health concerns were cited, Mrs. Stumpacher expressed a desire to move matters forward due to her age.

[24] The Belleville Superior Court of Justice can offer the parties an expedited, re-scheduled trial date as early as mid-March 2022. Unfortunately, the earliest date that counsel for Mrs. Stumpacher is available is October 2022. Ms. Chopra confirmed that if trial is rescheduled to October 2022, her firm will accept the retainer and go on the record for the defendants.

[25] Rule 52.02 provides that a judge may adjourn a trial on such terms as are just. At the hearing, I canvased what terms could be put into place that would reduce any prejudice to Mrs. Stumpacher.

[26] There was discussion previously about providing Mrs. Stumpacher and Ms. Dyer each with an interim distribution from the estate. An agreement on precise terms could not be reached so this never happened. The specific discussion between the parties had been that each would be provided with an interim distribution of $75,000.00. Apparently, Mrs. Stumpacher then requested an additional $15,000.00 to hire a handyman for a total of $90,000.00.

[27] In discussing whether an interim distribution of the estate to Mrs. Stupmacher could alleviate some of the prejudice associated with the delay in getting to trial, Mr. Baldwin noted that on his client’s worst day at trial she would be entitled to $600,000.00 and suggested that an interim distribution in this amount of $600,000.00 would be therefore appropriate. Ms. Dyer, speaking for herself, said that she would be willing to agree to an interim distribution to Mrs. Stumpacher in the amount of $90,000.00 as a term of the adjournment.

[28] I questioned counsel about what position would be taken with respect to costs of the motion, or trial costs thrown away, if the February trial adjourned. Mr. Baldwin took the position that any such costs would be a “drop in the bucket” versus the prejudice that an 8-month delay would cause.

[29] Following the hearing of the motion, Mr. Kochman unilaterally wrote to the trial coordinator requesting an opportunity to speak to terms of an adjournment of trial and the issue of costs. Mr. Baldwin responded to Mr. Kochman’s email and, quite properly, noted that Mr. Kochman was not counsel of record and that these issues were addressed in the February 1, 2022 motion. I agree with Mr. Baldwin. Furthermore, it is inappropriate to communicate with a judge following a hearing except in the rarest of cases. This is not one of them.

Summary

[30] To call this situation regrettable is an understatement. The current lawyers for Ms. Dyer want to be removed as solicitor of record due to a breakdown in the solicitor-client relationship with Ms. Dyer. Ms. Dyer wants to hire a new lawyer weeks before trial because she has lost confidence in her current counsel. Her desire to retain a new lawyer will require an 8-month adjournment of trial. Mrs. Stumpacher is 90 years old and simply wants to proceed to trial as soon as possible.

[31] I am not prepared to require the defendants and de Vries Litigation to proceed to trial when there has been a breakdown in the relationship and, specifically, when Ms. Dyer no longer has confidence her lawyer. Further, I begrudgingly accept that a natural consequence of my decision to allow de Vries Litigation to be removed as solicitor of record, in the circumstances of this case, is that the February trial dates must be adjourned on just terms.

[32] The motion by de Vries Litigation to be removed as solicitor of record is granted.

[33] The trial of this matter currently scheduled on the February 14, 2022 running list is adjourned to the October 11, 2022 running list.

[34] The February 14, 2022 trial dates are hereby vacated.

[35] The October 11, 2022 trial dates are peremptory on the defendants.

[36] The plaintiff shall be provided with an interim distribution from the estate in the amount of $90,000.00 forthwith without prejudice to either party’s ability to consent to, or bring a motion for, a further interim distribution. Mrs. Stumpacher may use the 8-month adjournment of trial as a factor the court may consider in any future motion for an additional interim distribution.

[37] The issue of costs of this motion, including Ms. Dyer’s oral motion for an adjournment of trial and trial costs thrown away because of the adjournment, are reserved. If the parties are unable to agree on the costs, written submissions (a maximum of 3 pages) shall be filed in accordance with the following schedule: the plaintiff shall serve and file cost submissions on or before February 25, 2022; the defendants shall serve and file responding cost submissions on or before March 7, 2022. If no materials are filed by that date, I will assume the parties have reached an agreement on the issue of costs.

[38] The parties, including a representative from Donovan Kochman LLP, shall attend in court via Zoom on February 15, 2022 at 2:00 p.m. for the purposes of scheduling a timetable for the remainder of litigation up to the trial date. Such timetable may include any process that the plaintiff suggests is appropriate to preserve the evidence of Mrs. Stumpacher in advance of trial.

Muszynski J.

Date: February 7, 2022