COURT FILE NO.: CV 21-656613
MOTION HEARD: 2022-04-29
DATE of DECISION: 2022-06-28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: TORONTO STANDARD CONDOMINIUM CORPORATION No. 2519, Plaintiff
- and -
EMERALD PG HOLDINGS LTD., MEHMET FATIH EROLTU aka FATIH EROLTU, CAMERON THOMSON and SALVATORE CAMPIONE, Defendant
BEFORE: Associate Justice Josefo
COUNSEL: B. Sachdeva and R. MacGregor, for the plaintiff, responding party.
A. Niksich and J. Drees, for the defendants, moving parties.
HEARD: April 29, 2022 (by videoconference)
DATE of DECISION: June 28, 2022
ENDORSEMENT
The Motion:
[1] Defendants, pursuant to their December 15, 2021Notice of Motion, seek to remove lawyer Richard MacGregor (“MacGregor”) and his law firm, Miller Thomson LLP, as counsel for plaintiff in this action. Defendants assert that this is necessary because they “must call MacGregor as a witness at trial”. Plaintiff resists the motion, asserting that it is “purely tactical”.
[2] Mr. Niksich argued the motion for the moving defendants. Mr. Sachdeva argued the motion for the responding plaintiffs.
Underpinning Facts of/Parties to this Litigation:
[3] These parties are involved in very acrimonious litigation. Justice Vella, in TSCC 2519 v. Emerald PG Holdings et al., 2021 ONSC 7222, released November 1, 2021, addressed the plaintiff’s then request for an interlocutory compliance order and for interlocutory restraining orders, pursuant to sections 134 and 135 of the Condominium Act, 1998. Justice Vella described the parties, their relationship, and the relevant facts, as follows:
[2] Emerald owns units 308 and 309 in the subject condominium building located at 4750 Yonge Street, Toronto (collectively, the "Units"). Emerald will sometimes be referred to as the Unit Owner.
[3] TSCC 2519 is comprised of the office and retail unit owners with units located on the third and first floors respectively of this multi floor building (the "Building"). The residential units are under a separate condominium corporation. In addition, there are two other corporations that own the other areas of this building. One corporation manages the second floor, which is a freehold space, while Metro owns and manages the parking units in this Building. These corporations, excluding TSCC 2519, will collectively be referred to as the "Adjacent Corporations."
[4] Eroltu and Campione are the owners, officers, and directors of Emerald.
[5] Thomson is an independent contractor of Utility Advocates Inc. ("Utility Advocates"), which is a company that is also owned by Eroltu and Campione. Utility Advocates is Emerald's tenant and occupies the Units.
[6] The alleged misconduct of the responding parties to this motion is for the period from 2017 to April 2021.
[12] TSCC 2519 seeks various orders against Emerald, Eroltu, Thomson, and Campione, including an order enforcing compliance with various provisions of the Act and s. 33 of TSCC 2519's Declaration, as well as orders restraining the alleged injurious and/or oppressive conduct under s. 134 and 135 of the Act.
[13] TSCC 2519 also claims that the alleged misconduct as against its property manager violates the Occupational Health and Safety Act, R.S.O. 1990, c O.1 ("OHSA").
[4] In a decision replete with detail describing what was found to be the then ongoing misconduct of these defendants, Justice Vella granted the Plaintiff’s request for interlocutory orders, as follows:
[159] I find that in the circumstances of this matter, the fair and equitable relief is to grant the following orders:
(a) An interlocutory order continuing the interim order of Sharma J. restraining the responding parties, Emerald, Eroltu and Thomson, from any further acts of harassment, intimidation, threats, bullying or other similar conduct as against the Board members, Unit Owners, and the staff, independent contractors, agents, and employees of TSCC 2519 including, but not limited to, Dianne Ferraro, contrary to s. 117 of the Act and s. 33 of the Declaration;
(b) An interlocutory compliance order as against Emerald, Eroltu and Thomson requiring them to comply with the Condominium Corporation Act, TSCC 2519's Declaration, by-laws, and rules, and in particular, s. 117 of the Act, pursuant to s. 134 of the Act;
(c) An interlocutory order restraining the Emerald, and restraining Eroltu and Thomson, acting as agents for Emerald, from soliciting proxies of unit owners for owner's meetings.
(d) Costs of this motion are payable by Emerald on a full indemnity basis pursuant to s. 58 of the Declaration. These costs may be added to Emerald's common expenses.
[5] In coming to her findings and conclusions on the record before her, Justice Vella observed as follows:
[38] In making my findings, I am restricting them to the evidentiary record before me on this motion for purposes only of this motion. In no way should these findings be seen to be binding on the trial judge who will have the benefit of observing the witnesses, and may hear from other witnesses and additional evidence, at the pending trial.
[6] Accordingly, I also must come to my own conclusions, as I independently consider the merits of this within motion. Still, as I weigh the discrete issue before me, the following findings of fact made by Justice Vella are informative and provide context:
[60] There is substantial documentary evidence to support the claims of the witnesses who were also threatened with lawsuits by Eroltu and/or Thomson on behalf of Emerald.
[61] In fact, one such lawsuit was commenced by Eroltu alleging defamation against Liu, Papageorge, and Kang, another unit owner. The defamation lawsuit is ongoing.
[62] Individuals are entitled to issue a lawsuit for wrongs they have alleged to have suffered. However, it is an abuse of process to issue a lawsuit for an ulterior purpose, like an intimidation tactic to prevent others from exercising their own rights, such as seeking election to a board of directors.
[63] Based on the evidence, it appears that Eroltu used the threat of bringing legal proceedings with the intent of intimidating others. This includes his threat to sue the board members, including Chen and Liu, for "civil conspiracy" if they did not comply with his (and by extension, Emerald's and Utility Advocates') demands.
[110] The various proceedings brought by various of the responding parties have not been dismissed as vexatious or an abuse of process. In fact, some of the record requests have been validated by CAT-one resulted in a penalty of $1000 and costs of $200 by TSCC in favour of Emerald.
[112] The problem is the hurtful and unrelenting manner in which the responding parties have made and pursued their various requests and demands, and the apparent use of the threat of litigation to intimidate board members and unit owners.
[125] The evidence proves, on a balance of probabilities, that Thomson and Eroltu, on behalf of Emerald, have engaged in a pattern of conduct that is intimidating, bullying, and ultimately abusive, which has thwarted the ability of the board of directors to govern as they were elected to do. Again, the substance of their persistent complaints, demands, and requests for records may all be legitimate but the manner in which they are advocating for Emerald's rights as a unit owner is not acceptable and contrary to Emerald's obligations under s. 117 of the Act and s. 33 of the Declaration.
[126] The constant threats of litigation against former, current, and prospective board members constituted an unreasonable interference with the use and enjoyment of the units and common elements of the Building which includes the right to participate in the governance of TSCC 2519 without fear of reprisal.
[127] Furthermore, I accept the evidence of Chen, Kang, and Liu that they reasonably experienced fear and intimidation in the Building beyond a trifling nature as a result of Eroltu and Thomson's activities, and that this fear and intimidation also constitutes an unreasonable interference with their use and enjoyment of their units and common elements.
[128] In addition, the persistent pattern of hostile and aggressive email communications by Eroltu and Thomson, together with the various incidents of physical intimidation in the form of Eroltu and Thomson's raised voices, and their sometimes close physical proximity with Chen and Ferraro in closed environments (Eroltu's unit and the elevator), which reasonably gave rise to an apprehension of fear, is conduct that causes injury with a psychological harm that is beyond a trifling nature, such that an interlocutory compliance order is warranted.
[129] Eroltu and Thomson, acting as agents for Emerald have acted in a manner that is in violation of s. 117 of the Act and s. 33 of the Declaration.
[130] I am also satisfied that the injury constitutes irreparable harm…
[131] In addition, I find that the balance of convenience favours TSCC 2519…
[141] The conduct of Emerald, through its agents Eroltu and Thomson, unfairly disregarded the interests of TSCC 2519 and, in particular, its board of directors by interfering in the board's governance role. Furthermore, Emerald has unreasonably interfered with TSCC 2519's ability to seek and retain board members. Emerald has also unreasonably interfered with TSCC 2519's ability to provide a safe workplace for its property managers, and with its employment relationship with those property managers, and in particular with Ferraro.
[7] In her subsequent unreported Endorsement dated January 24, 2022 addressing costs following the above decision, Justice Vella addressed and dismissed the defendants’ allegations that counsel for plaintiff deliberately misrepresented their fees. In that regard, Justice Vella found as follows:
[10] In its supplementary cost submissions, Emerald then suggested that TSCC 2519's lawyers have intentionally misrepresented what their true fees in this matter are. Emerald attached a redacted invoice dated June 30, 2021 (the day of the hearing before me) issued by the lawyers to TSCC 2519 and obtained by Emerald (on consent) from the Condominium Authority Tribunal, which it had recently received. Emerald submitted that, based on the redacted invoice, TSCC 2519's lawyer's actual costs were $20,000 all-inclusive of fees, HST and disbursements and reflected lower fees than claimed in the Cost Outline submitted in this proceeding.
[11] TSCC 2519's denies this allegation and advised that the subject invoice was only one of the invoices it submitted to TSCC 2519 in relation to this proceeding.
[12] An allegation of intentional misconduct against a lawyer is serious.
[13] Emerald has not satisfied me that TSCC 2519's lawyers have misrepresented their costs to the court. While they have submitted an isolated redacted invoice, they have adduced no evidence and there is no indication that this invoice is the only invoice submitted in relation to these proceedings or the scope of work reflected by this invoice.
[14] I accept TSCC 2519's lawyer's explanation.
Why the Moving Defendants Assert that MacGregor Must be a Witness in this Action:
[8] Defendants assert that the issue arises out of one of a series of allegations made by plaintiff against defendants in the Statement of Claim. In addition to other allegations asserted by plaintiff, paragraphs 21-39 of the Claim allege “interference with economic relations” by defendants. The alleged interference stems from a dispute and then litigation which TSCC 2519 has had with the Declarant (referred to also at times as the “developer”) over the condo corporation’s first year financial deficit. The allegations in the Claim are as follows:
TSCC 2519 has since commenced litigation against the Declarant, its prior property managers, and other parties involved in the construction of the building.
TSCC 2519 has commenced arbitration against the other entities residing in Emerald Park.
In or about June 2019 the Plaintiff and the Declarant, Emerald Park Galleria Inc. were scheduled to attend a mediation with respect to a dispute on the first year financial deficit of TSCC 2519.
Shortly prior to the mediation, the Declarant advised TSCC 2519 that the Defendants had produced a lengthy and detailed report summarizing the Defendant's theory of negligence as against the TSCC 2519's previous property managers (the "Emerald PG Report").
Within the Emerald PG Report, the Defendants alleged, inter alia, that the cause of the financial deficit of TSCC 2519 was largely caused by the negligence of the prior property managers of TSCC 2519.
Within the Emerald PG Report was extensive summary of the finances of TSCC 2519, which were proprietary and confidential to TSCC 2519, and there was at all times a reasonable expectation of privacy that a unit owner would not disseminate such information publicly.
Within the Emerald PG Report was also a detailed summary of hydro and utility expenses, all of which were a subject of the pending mediation with the Declarant scheduled for June, 2019.
The Declarant, therefore, was provided detailed and sensitive financial information of TSCC 2519 by the Defendants, which the Declarant was not otherwise privy to, and not otherwise entitled to. As a result the Defendants caused harm which cannot be quantified, prejudicing TSCC 2519.
As a result the Declarant relied upon the information produced in the Emerald PG Report in its defence of TSCC 2519's claim for the first year deficit.
TSCC 2519 states that as a result of the Defendants disclosing the sensitive and proprietary financial information to the Declarant on the eve of the mediation, TSCC 2519's position was compromised and it suffered corresponding damages of which cannot be easily quantified.
Furthermore, and in addition, given the Defendants have produced sensitive and proprietary financial information to the Declarants, TSCC 2519 is further prejudiced in its litigation as against the Declarant and its prior property managers in Court File No. CV- 19-00630547 [emphasis added].
[9] Defendants assert that the allegation at paragraph 33 of the Claim, that they provided “sensitive financial information” to the Declarant, is untrue. They have pleaded accordingly. Moreover, they state that, based on the cross-examination of condo board member Mr. Liu, the assertion in paragraph 33 emanates entirely from MacGregor. In his Reply submissions on the motion, counsel for defendants asserted that this motion indeed stems from Liu’s cross-examination testimony, as MacGregor was clearly identified by Liu to be the source of the alleged fact that the Report (and the “sensitive financial information”) was provided to the Declarant by defendants. Accordingly, it was further submitted that the question defendants will pose to MacGregor when he is a witness at trial is, “how (or, on what basis) do you base the allegation that the defendants gave the Report to the Declarant?”
[10] At Mr. Liu’s testimony beginning at question # 629, he asserts that he knew, based on what MacGregor ostensibly told him (and the Board), that defendants delivered a report to the developer which “potentially prejudiced us”. At question # 637, after MacGregor tried to clarify the matter based on his then uncertain memory of what the developer’s lawyer stated in an April 25, 2019 email to him, Mr. Liu confirmed that the source of his information on the topic was TSCC 2519’s lawyer, MacGregor.
[11] The April 25, 2019 email of the developer’s lawyer to MacGregor reads as follows:
Hi Richard,
My client has authorized me to make an offer to settle the first year financial matters for $100,000. If the offer is accepted, we will have to prepare minutes of settlement specifying what has been resolved and what has not. My client understands that deficiency/technical audit and similar claims would remain outstanding. It is seeking to completely resolve all claims related to condo finances. At the present those claims seem to be just the budget deficit claim and the claim for contribution from the parking units. If there are other financial claims, we should discuss them. The rationale for the offer is that my client remains convinced that the primary problem is not an excess of common expense costs above budgeted common expenses, but rather a failure to recover cost sharing expenses (which are not common expenses) from other parties to the cost sharing agreement. This conviction is supported by the amount claimed for cost sharing from the parking units and from the attached complaint outlining how First Service failed to properly administer the condo. While my client would bear liability for mis-estimating first year common expenses, that is the full extent of its liability. My client is not liable for any default by First Service in failing to properly collect reimbursement from other parties for payments made by the condo that were not payments for common area/expense services (eg. payments by the condo to hydro for power delivered to portions of the building not part of TSCC 2519, which payments need to be recovered from the consumers of that power). By the way, I expect that you assisted Mr. Eroltu in preparing his complaint and assembling the supporting documents. I would very much like to receive copies of the appendices to that complaint, if you would be so good as to provide them. I am available to discuss this offer, should you wish [emphasis added].
[12] For context, “First Service”, the entity identified in the above email, was at the relevant time the property manager of the plaintiff. As discussed above, in essence, defendants assert that MacGregor must testify to address how or why he concluded that it was defendants who provided the Emerald PG Report (“Report” yet referred in the above email as a “complaint”) to the developer, defendants intending by so doing to cause harm to plaintiff. Defendants elaborated that MacGregor must be a witness to show if he is or is not “the architect of this claim”, as moving counsel submitted.
[13] It was also submitted by defendants that the Claim in this respect, that the defendants provided the Report (complaint) to the developer is inaccurate; with the only person who can shed light on how the report got to the developer being MacGregor. MacGregor, if a witness, would also be asked, according to defendants, if he provided this report to the developer, or if he knows who did.
Discussion and Conclusion:
[14] Removal of a lawyer, depriving a client of their choice of counsel, is not something to be done lightly. There must be compelling evidence to lead to that result. That is especially so when, as in this matter, the case is at an early stage of the proceedings, before examinations for discovery. To succeed, in my view it must be shown that the lawyer chosen by one of the litigants will be a necessary witness, on a material issue, which is actually in dispute, and one which is relevant to the disposition of the case.
[15] The seminal decision of the Supreme Court of Canada on removing a lawyer is MacDonald Estate v. Martin 1990 32 (SCC), 3 S.C.R 1235 (“MacDonald”). Applying MacDonald, it must be observed that it involved an actual conflict of interest, given that, pursuant to paragraph 52 of MacDonald, it was found that the lawyer to be removed “actively worked on the very case in respect of which her new firm is acting against her former client. She is therefore in possession of relevant confidential information.” Those facts of MacDonald, of course, are entirely different from this current matter. MacGregor is not alleged to have worked for defendants’ law firm or for defendants before switching sides. Moreover, there was no suggestion made that he has any confidential information pertaining to defendants. Nor could such a suggestion have been credibly asserted, given the evidence before me.
[16] In my view, the analysis of what then Master (now Justice) Glustein held in Mazinani v. Bindoo, 2013 ONSC 4744, at paragraphs 60-61 is applicable to this matter. While the excerpt is quite lengthy, as it well reviews and synthesizes the case-law, it is informative and helpful to my analysis of the issue. I have bolded what I find are key considerations to the within matter:
[60] I adopt the following principles as the applicable law on a motion to remove a lawyer of record who may be a witness at trial:
(i) The court has inherent jurisdiction to remove a lawyer from the record who has a conflict of interest. The inherent jurisdiction “stems from the fact that lawyers are officers of the court and their conduct in legal proceedings which may affect the administration of justice is subject to this supervisory jurisdiction” (MacDonald Estate v. Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235 (“MacDonald Estate”), at para. 18);
(ii) The inherent jurisdiction extends to removing a lawyer who may be a witness in a case in which the lawyer acts as counsel (Ontario Realty Corp v. P. Gabriele & Sons Limited et al, 2006 37844 (Ont. S.C.J.) (“Ontario Realty”), at para. 16);
(iii) The court on a motion to remove a lawyer of record who may be a witness at trial must consider “(a) the maintenance of high standards of the legal profession and the integrity of our system of justice and (b) the right of a litigant to its choice of counsel, which he or she should not be deprived of without good cause” (Ontario Realty, at para. 17, citing MacDonald Estate, at para. 13);
(iv) The test to be applied on a motion to remove a lawyer from the record who may be a witness is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires the removal of the lawyer. This determination is objective, fact-specific and based on an examination of all factors in the case (Karas v. Ontario, 2011 ONSC 5181 (S.C.J. - Mast.) (“Karas”) at para. 26; Ontario Realty, at para. 20);
(v) The court’s concern of a lawyer appearing as a witness is that (i) there may be a conflict of interest between the lawyer and client and (ii) the administration of justice can be impaired by a conflict between the lawyer’s obligations of objectivity and detachment which are owed to the court and the lawyer’s obligation to his or her client to present evidence in as favourable a light as possible. In Urquhart v. Allen Estate, [1999] O.J. No. 4816 (S.C.J.) (“Urquhart”), Gillese J. (as she then was) held (Urquhart, at paras. 27-28):
When counsel appears as a witness on a contentious matter, it causes two problems. First, it may result in a conflict of interest between counsel and his client. That conflict may be waived by the client, as indeed, was done in this case. The second problem relates to the administration of justice. The dual roles serve to create a conflict between counsel's obligations of objectivity and detachment, which are owed to the court, and his obligations to his client to present evidence in as favourable a light as possible. This is a conflict that cannot be waived by the client as the conflict is between counsel and the court/justice system.
Counsel are independent officers of the court. The trial judge must be able to rely upon plaintiffs' counsel for a high degree of objectivity. The overriding value, in these circumstances, is concern for the proper administration of justice. A distinction must be drawn between the role of counsel as an independent officer of the court and the role of a witness whose objectivity and credibility are subject to challenge.
(See also Karas, at para. 27);
(vi) The integrity of a lawyer`s role as an advocate is also undermined if the lawyer was a witness to a critical meeting. In Young-Tangjerd v. Official Board of Cavalry United Church, 2006 17946 (Ont. S.C.J.) (“Young-Tangjerd”), Hockin J. held (Young-Tangjerd, at paras. 6-7):
The material fact on the motion and the fact which raised the possibility that the solicitor might be called as a witness at trial is this. The solicitor was present at a meeting at which the plaintiff was present with members of the defendant church. He was there as a member of the church not as solicitor. The plaintiff alleges that she was dismissed from her employment constructively during the course of the meeting or because of the meeting. The reasons of the motion judge posit that in this circumstance, the solicitor's disqualification is not automatic and that it could be left to another judge by motion (presumably on the eve of trial) to quash his subpoena or to the trial judge to determine whether he could act as trial counsel if he was to be called as a witness.
In my view, the issue is not the lawyer's position as a witness but his position as advocate. I doubt whether any party or a witness may be cross-examined by a lawyer who could cross-examine not on the basis of his brief but on the basis of his participation in the event or transaction cross-examined on. Any question, leading or not, once posed by the lawyer is unfair to the witness and carries with it the appearance of an unsworn offer of the advocate's version of the facts. In addition, questions put in cross-examination by the lawyer witness would create the uneasy feeling in the mind of the plaintiff in this case that the measure of his credibility could be based not on the basis of the evidence but the unsworn declaration of a judicial participant in the proceeding, the defendant's lawyer. It goes without saying that the lawyer cannot compartmentalize his or her mind to exclude actual knowledge of the event. As well, the court should ensure no conflict in the lawyer's duty as advocate and as an officer of the court. For example, what is the lawyer to do if his memory of the event differs from the evidence in-chief he hears from his witnesses. [Italics in original.]
(vii) Rule 4.02(2) of the Rules of Professional Conduct of the Law Society of Upper Canada provides that “Subject to any contrary provisions of the law or the discretion of the tribunal before which a lawyer is appearing, a lawyer who appears as advocate shall not testify before the tribunal unless permitted to do so by the rules of court or the rules of procedure of the tribunal, or unless the matter is purely formal or uncontroverted”;
(viii) The commentary to Rule 4.02(2) sets out the concern that a lawyer who puts personal beliefs into issue acts contrary to the lawyer’s role as an objective advocate and puts the lawyer’s credibility at issue. The commentary provides:
“A lawyer should not express personal opinions or beliefs or assert as a fact anything that is properly subject to legal proof, cross-examination or challenge. The lawyer should not in effect appear as an unsworn witness or put the lawyer’s own credibility in issue. The lawyer who is a necessary witness should testify and entrust the conduct of the case to another lawyer”.
(ix) Rules of Professional Conduct are not binding on a court, but are persuasive as an important statement of public policy (MacDonald Estate, at paras. 16 and 18; Karas, at para. 29);
(x) Courts should be reluctant to make what may be premature orders preventing lawyers from continuing to act. If the evidence does not necessarily have to come from the lawyer and may be obtained through admissions or documentary productions, a removal order will be premature (Essa (Township) v. Guergis; Membery v. Hill, [2003] O.J. No. 2581 (Div. Ct.) (“Essa”), at para. 43; Lesniowski v. H.B. Group Insurance Management Ltd., [2002] O.J. No. 3194 (S.C.J. - Mast.) (“Lesniowski”), at para. 15);
(xi) If there is some doubt or “merely a potential” that a lawyer will be called as a witness at trial, the courts should be more generous in allowing the lawyer to remain on the record and deferring the matter until after discoveries or leaving the matter to the trial judge (George S. Szeto Investments Ltd. et al v. Ott, 2006 9307 (Ont. S.C.J. - Mast.) (“George S. Szeto”), at para. 13);
(xii) “In view of the expense of litigation and the enormous waste of time and money and the substantial delay which can result from an order removing solicitors, courts should only do so in clear cases” (Essa, at para. 43);
(xiii) “[A] court should be slow to interfere with the litigant’s right to choose his or her counsel. … When a litigant is deprived of the services of a lawyer whom she has chosen, there will be some hardship imposed on her. The imposition of such hardship can only be justified if it is done to prevent the imposition of a more serious injustice. It follows that the removal of counsel should be only to relieve the risk of real mischief and not a mere perception of mischief” (Urquhart, at para. 19);
(xiv) Certainty that a lawyer will be called as a witness is not required. Rather, the court must consider the likelihood of the lawyer being called as a witness (Ontario Realty, at para. 33);
(xv) “It is not sufficient for a moving party to suggest opposing counsel is a potential witness or allege only that he or she might provide material evidence. Rather, it must be established that there is a real basis to believe counsel can likely, or probably, provide material evidence” (Graham v. Ontario, [2006] O.J. No. 763 (S.C.J.) (“Graham”), at para. 35; Ontario Realty, at paras. 34-35);
(xvi) “While courts have acknowledged that the freedom to choose counsel is an important interest to protect, it is not an absolute right. The right to be represented by counsel of choice can be outweighed when the administration of justice would be detrimentally affected” (Karas, at para. 45; George S. Szeto, at para. 21; Urquhart, at paras. 21 and 28); and
(xvii) The court should approach a motion to remove a lawyer of record who may be a witness at trial by following a flexible approach and consider each case on its own merits (Essa, at para. 48)
(b) The factors to consider under Essa
[61] Given the above law, the Divisional Court in Essa set out “a variety of factors” to be considered on a motion to remove a lawyer of record who may be a witness at trial. Those factors are (Essa, at para. 48) (quoted verbatim):
(i) the stage of the proceedings,
(ii) the likelihood that the witness will be called,
(iii) the good faith (or otherwise) of the party making the application,
(iv) the significance of the evidence to be led,
(v) the impact of removing counsel on the party’s right to be represented by counsel of choice,
(vi) whether trial is by judge or jury,
(vii) who will call the witness if, for example, there is a probability counsel will be in a position to cross-examine a favourable witness, a trial judge may rule to prevent that unfair advantage arising, and
(viii) the connection or relationship between counsel, the prospective witness and the parties involved in the litigation
[bolding added]
[17] In the Essa (Township) v. Guergis decision referenced above by Justice Glustein (1993 8756), the Court therein noted at paragraph 45 that, even if a lawyer must be called to testify, the law firm to which that lawyer belongs may still remain on the record, depending upon the view of the trial Judge and how the evidence and proceedings unfold during the trial. At that same paragraph, the Court also cautioned as follows:
It should also be borne in mind that all applications to remove solicitors from the record are not brought with the purest of motives. The expense and delay involved in retaining new counsel may work to the substantial benefit of an opposing party in some cases. Courts should also carefully consider the right of a client to be represented by counsel of choice.
[18] The Court in Essa also observed that if the evidence can be obtained in a different way, without the lawyer, then the lawyer need not be a witness.
[19] In this case, the best witness to answer how the developer obtained the Report (complaint) would, in my view, likely not be MacGregor. Rather, it would be the developer, or possibly his lawyer, the one who authored the April 29, 2019 email. The question, if it were truly found to be relevant to the action overall (which I do not believe it ultimately will be found to be), thus could be put to the developer or to the developer’s lawyer. After all, it was that lawyer who sent that email, which presumed that it was MacGregor who helped defendant Mr. Eroltu to prepare the Report. Given that MacGregor and Eroltu are very much at odds, that presumption seems quite unlikely, thus misplaced. Accordingly, asserting that MacGregor must be a witness given an incorrect assumption, made by someone else not directly involved in the within matter, seems far-fetched.
[20] Additionally, as defendant Eroltu ostensibly wrote or contributed to the writing of the Report, he can be asked to whom it was disseminated. After all, he ought to know to whom he sent the report, and the method used for sending it (such as email or hand-delivery) to the intended recipients.
[21] Overall, it seems to me to be quite premature in this case to state that only MacGregor can testify about why he concluded, if he in fact did, given all there is to ground this supposition is the hesitant memory of Mr. Liu, that it was defendants who provided the Report to the developer. There seems to be other witnesses much less peripheral than MacGregor is to that question.
[22] I also struggle with the notion of why it is necessary that MacGregor be a witness to show if he is or is not somehow “the architect of this claim”, as asserted by moving parties. Of course, as the plaintiff’s lawyer, he would have prepared the Statement of Claim. Yet to assert that MacGregor somehow egged on the plaintiff to sue defendants and to, in a lengthy Claim, make, amongst other allegations, false allegations of Interference with Economic Relations, absent compelling evidence of this, seems very far-fetched. Moreover, even if MacGregor is “the architect of this claim”, in essence, so what? That he was, in my view would not make him a necessary witness on a material fact in dispute. To ask MacGregor to testify about his thought processes and any advice given to his client regarding what allegations to include in preparing the Claim, possibly enquiring about who informed or instructed him, also seems to me to come very close to if not actually treading upon privileged matters.
[23] Additionally, can it be stated that whether MacGregor believed that defendants provided the Report to the developer (in other words, that MacGregor is the “architect of this claim”) is itself truly relevant, a material fact in dispute in the overall litigation between these parties? In my view, it is not material, nor relevant as to what this lawyer may or may not believe or have assumed. After all, lawyers advise their clients and are the ones who craft a pleading based on the evidence as they then understand and believe to exist. In this case, plaintiff, perhaps based on what their lawyer believed could be established by the evidence, alleged in its pleading that defendant provided the Report to the developer. Defendants deny this to be true. Thus, it will be for the plaintiff to prove its various allegations in its Claim, including this allegation. If, after it examines for discovery a representative of the corporate defendant and the other defendants, and possibly any third parties for whom leave may (or may not) be given, it realizes that it lacks the evidence to substantiate this allegation, or if it obtains new evidence from defendants, or perhaps also from third parties, of how the Report was obtained by the developer, it can seek to amend its pleading. So, also, can defendants amend their pleading.
[24] It was alleged by counsel for plaintiff that this motion was brought for “tactical” reasons. Such motivation is not unknown, again referring to the above excerpt from Essa “that all applications to remove solicitors from the record are not brought with the purest of motives”. Again, as Justice Glustein wrote in Mazinani, “[t]he test to be applied on a motion to remove a lawyer from the record who may be a witness is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires the removal of the lawyer”.
[25] In this matter, considering this question in the requisite objective and fact-specific way, I am not persuaded that, based on, in the main, one email with erroneous assumptions therein, and the hesitant (and hear-say) testimony of a seemingly unsophisticated witness, on an issue at least somewhat peripheral to the key issues in dispute between these parties, MacGregor or his firm should at this time be removed. After all, the court cautioned in Bank of Montreal v. Combra Furniture Ltd [2008] O.J. No. 1842, at paragraphs 37:
Courts should remove a solicitor of a party’s choice at an early pre-trial stage only ‘in the clearest of cases’”.
[26] In my view, the facts and circumstances of this matter do not bring it within the clearest of cases. Rather, this is quite the opposite of a clear case which would justify early removal. This matter is not equivalent or similar to the facts in Kitchen v. McMaster, 2018 ONSC 3717. In that solicitor’s negligence case, Kitchen, after unsuccessfully suing a developer, ultimately purported to use the same litigation counsel from the action against the developer to sue his real estate solicitor. The real estate solicitor sought removal of plaintiff’s litigation counsel as that litigation counsel would likely have to testify about the actions taken by the real estate solicitor.
[27] Given the facts of that case, Master Graham (as he then was, now Associate Justice Graham) concluded that “given the apparent inevitability” of litigation counsel having to testify at trial, it was best to remove him, even at an early stage in the case. In this within matter, however, it is not hardly “inevitable” that MacGregor will be a necessary witness, on a material issue, one which is actually in dispute, and one which is relevant to the disposition of the case. In my view, I find it far more likely that, once the evidence is explored at discovery, other witnesses will be identified who are far less peripheral than is MacGregor. For reasons which I will expand upon below, I also find that the underlying motive of defendant Eroltu was “tactical” in bringing this motion at this time.
A Tactical Motion:
[28] Given the history of this litigation, at least for costs purposes it is appropriate that I briefly address the allegation advanced by plaintiff’s counsel that the motion was brought in bad faith, and for tactical purposes. The excerpts from the reasons of Justice Vella found above are a starting point for my consideration of this allegation. Yet such are not an ending point.
[29] Overall, it appears to me that while Mr. Eroltu may:
• have reason to, for some issues of condo board administration or property management operational short-comings, be aggrieved, and seek improvement,
• be entitled to some of the documents which he has aggressively sought,
• even believe that he could “run the show” better than everyone else,
[30] None of that justifies what has been found to be rude and aggressive behaviour which is simply over the top. See, in that regard, these observations by Vice Chair Clifton of the Condominium Authority Tribunal in Emerald PG Holdings Ltd. v. Toronto Standard Condominium Corporation No. 2519, 2022 ONCAT 15:
[1] The parties in this case have a lengthy, antagonistic history. They have been before this Tribunal several times in the past few years, and I am aware that there are other court proceedings, as some of these were referenced in the parties’ submissions in this case. All of this is most unfortunate, because it seems entirely avoidable if the parties would govern themselves in a manner that is more appropriate for the purpose of maintaining an effective and enjoyable condominium community.
[2] The Applicant (or “Emerald”) is a corporation that owns a unit of the Respondent. However, it is Fatih Eroltu, the principal of Emerald, who seems to be the primary instigator of these proceedings; his attitude toward the Respondent’s management and legal representatives appears aggressive and extreme. During the witness evidence, given by videoconference, Mr. Eroltu was unable to restrain himself from harsh and insulting outbursts against the Respondent’s legal counsel and condominium manager, despite my warnings to him to cease such outbursts. When he was no longer present in the meeting, the parties were able to engage more amicably, and it even appeared that a settlement between these parties could be possible, though it so far has not been.
[54] Regarding Mr. Eroltu’s conduct, it is plausible that there are some genuine causes for Mr. Eroltu’s frustration with the Respondent and its representatives, but these do not justify his persistent rudeness, aggression, and disruptive behaviour during witness testimony which both complicated and extended the time taken in that part of these proceedings unnecessarily. In the colloquial sense, such behaviour was clearly exceptional. However, I note that in other Tribunal decisions, exceptional reasons giving rise to an award of costs relating to legal fees have been defined as circumstances that are “grossly unreasonable” or have “unduly complicated” the proceedings, where a party has acted “in bad faith or with malice”. Merely being unreasonable, rude, impolite, or irascible, and causing some delay or irritation during the proceedings, will not rise to this level. I therefore find that there is no basis for the award of costs sought by the Respondent.
[55] As noted above, Rule 45.1 offered the possibility of reimbursement for expenses directly related to the proceedings, including a party’s unreasonable behaviour or delays. While I have found that Mr. Eroltu’s behaviour during the witness testimony portion of these proceedings was not exceptional for the purposes of Rule 46.1, it was unreasonable, and it did create delays and difficulties during that part of the hearing which justify a costs award under Rule 45.1. I note that Mr. Barkin, the Respondent’s condominium manager, was the lead representative throughout the hearings. He is neither a lawyer nor a paralegal, and so reimbursement of costs incurred on account of his participation properly fall within the ambit of that rule.
[56] Although the Respondent provided no specific details or bill of costs, it submits that it did incur additional management fees with respect to these proceedings, and I have no reason to doubt that this is true. Lacking precise details, I cannot order the significant costs award requested by the Respondent; however, given that the basis for the award is the conduct of the Applicant’s principal, Mr. Eroltu, I award the Respondent costs in the same amount as I determined above should be awarded to Emerald, with the result that each award exactly sets off the other and, as a result, each party shall bear entirely its own costs of these proceedings [emphasis added].
[31] While Mr. Eroltu obtained some of what he wanted in that CAT matter, it appears to me that his victory was, to say the least, pyrrhic. Due to his misconduct as determined by the Vice Chair, he was ordered to pay costs, setting off the award of costs he otherwise would have received given the condominium corporation was ordered to provide him documents. I also agree with the first paragraph of what the Vice Chair wrote, which I highlighted in bold: both parties should seriously consider finding a way to live with one another, as is required for successful condominium co-existence.
[32] If there is any chance of, if not a successful but at least a tolerable co-existence amongst these parties, Mr. Eroltu must, to begin with, “let go” of his enmity for MacGregor. For some reason, this lawyer has become, in the eyes of Mr. Eroltu, personified as the villain who is pulling all the strings of the Condominium Board, who instigated this within action, and is thus deemed justifiably subject to vilification, the likes of which I have not previously seen against counsel in a civil action, either as a long-time lawyer or jurist. Despite whatever Mr. Eroltu may subjectively believe, there is no probative or compelling evidence in the record before me which demonstrates that his subjective beliefs pertaining to MacGregor are grounded in reality.
[33] Mr. Eroltu has, from the evidence I have reviewed, a focus for his enmity being MacGregor (not exclusively but still to a disturbingly significant extent). This has manifested itself in complaints to MacGregor’s former law firm employer, to his current law firm employer where he is an associate lawyer, and to the Law Society, more than once. That enmity is what I conclude has in part, along with the obvious tactics of delaying the plaintiff’s action through bringing this motion, seemingly motivated this unnecessary step in the overall proceeding. Mr. Erolutu’s cross-examination testimony taken on March 17, 2022 underpins my conclusions. This is a representative sample from his cross-examination testimony:
- Q. Let's -- let's go over what you've alleged or done to Mr. MacGregor and Miller Thomson. Do you recall writing letters to Enzo Di Iorio in February of 2021, complaining that Miller Thomson had a conflict of interest when the claim in this proceeding was issued?
A. It was because, you know, that was a conflict of interest, because I was -- I don't know if you know, but if your partner of yours told you because I think, you know, you should verify and double check, triple check everything that he tells you, could be a lie, okay? So you need to double check.
62 Q. Sorry, are you accusing Mr. MacGregor of lying to me?
A. Well, he lies to everybody, so he might as well lie to you, right? So, my guess is this, this gentleman on average, on a daily basis, he lies between 50 to 75 dates -- 50 to 75 times per day. Who lies to, and you're included, okay. He lies to the judges.
THE DEPONENT: He lies to the clients, to the Board. He lies to everybody, okay. So, he's a licensed lawyer who practices law, okay, who practices law in Canada in sophistry, in order to mislead and deceive the others. And the others, I tell you who the others are.
MR. SACHDEVA: Sure.
THE DEPONENT: That includes Justice Vella, includes you, colleagues, his superiors, Board members, clients, families, relatives, everybody, okay. He lies to everybody. All right? So, you've got my answer.
- Q. So, you personally know he lies to relatives?
A. He lies everybody. That's all I know.
- Q. So, nothing personal?
A. He fabricate -- he fabricate and orchestrated a claim, bogus claim against me, my company, my employee, my business partner; all false, baseless claims. He put five testimonies together and induced the Board, current Board with lies and to improve the lawsuit against me. That's him, okay? So ---
- Q. So, let's see. I left off, we've covered your complaint to Agro Zaffiro. You've complained to Miller Thomson. You've complained to the Law Society. You've threatened litigation against Mr. MacGregor. You've threatened costs against Mr. MacGregor personally. We see you accused him of misrepresenting his fees before Justice Vella. Do I have all of that accurately?
A. Well, his fees
- Q. No, no, no. Is my description accurate?
MR. NIKSICH: If it's no, then explain. If it's yes ---
THE DEPONENT: Yes.
[34] At question # 215-216, Mr. Eroltu makes clear that he intends to complain further to the Law Society against MacGregor, if he succeeded in having him removed through this motion. Of course, anyone can, and should, complain to the Law Society if they legitimately are aggrieved by a counsel not honouring his or her professional obligations. Yet, considering the entirety of the transcript and this overall record, in my view making yet another complaint about him seems both punitive, unjustified, and tactical, as a way to distract MacGregor from his duties to his clients.
[35] This final excerpt from this transcript, in my view, makes clear the position of Mr. Eroltu and his enmity toward MacGregor:
- Q. You have a big problem with Mr. MacGregor.
A. I have a big problem with the liars and especially when you are dealing with a liar lawyer, licensed lying machine. I have a big problem, okay. So, look, I rely on the legal system in Canada, okay. I have two businesses. I pay my taxes, okay. We pay our taxes on time. I employ six people, okay. We create jobs. We save our clients a lot of money, and then they benefit from our services and programs. I deal with a lawyer like this, ethical, good professional lawyer like him, because we use them almost eight, ten years.
You know, he's my -- he's my lawyer and then we stay with him for a long time. I appreciate their work. He's a good lawyer. He's professional. He's truthful. He's ethical. But I have a goddamn problem with the goddamn liar like your partner, okay. He's a liar, lying machine. He lies to everybody. I'm telling you, this person is an embarrassment to the Law Society, okay. Embarrassment to -- because of him, this profession is going to get worse and worse because of lawyers like him, okay. So, he induced the Board, based on lies. He tells the Board he shared the report with the developer. You know, because of they share the report, the report with the developer, they jeopardize our settlement. So, whatever the settlement was and we jeopardizes settlement efforts. And as a result, TSCC 25 2519 suffered damages. I mean, come on, man, you cannot be so big liar like you and lie to everybody and then the judges, okay. And then he claims a million dollar, you know. It is -- it is ridiculous, okay. This liar, all right -- look, Bobby, you better check everything he tells you. Look, double check.
Conclusion – Costs and an Order:
[36] For all these above reasons, I dismiss the motion. I find that it is highly doubtful that MacGregor will ever be a necessary witness in this action. The motion, in my view, was at least premature and was brought mainly for tactical reasons, including the strong antipathy of Mr. Eroltu toward MacGregor. Yet the dismissal is without prejudice for defendants to, if they so desire, raise this issue preliminarily before the trial Judge. Whether such should occur will be determined on what new information, or changed circumstances, arise between now and the case being called to trial.
[37] Having been entirely successful in resisting this motion, plaintiffs are entitled to their costs. I urge the parties to resolve the issue of costs. Yet if such proves impossible, a telephone-case-conference may be scheduled with me, through my ATC.
[38] Assuming the parties can agree on the terms of an Order, a draft may be sent to me through my ATC.
ASSOCIATE JUSTICE J. JOSEFO
DATE: June 28, 2022