Court File and Parties

Court File No.: CV-21-156-0000 Date: 2023-07-19

Superior Court of Justice – Ontario 491 Steeles Avenue East, Milton ON L9T 1Y6

Re: Helen Smoljan, Gordana Smoljan and Nicholas Kopczynsky, Plaintiffs -and- Emma Branion and Jannine Branion, Defendants

Before: C. Chang J.

Counsel: C. Genova, for the Moving Parties No one else appearing

Heard: July 19, 2023 (via videoconference)

Endorsement

[1] The moving parties are the lawyers for the plaintiffs. They bring this motion for an order removing them as lawyers of record and for a charging order.

[2] Although duly served, no party responded to the motion or appeared in court today. The motion is, therefore, unopposed.

[3] The moving parties have complied with the requirements of rule 15.04(1), (1.1), (1.2) and (2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and, as outlined above, the motion is unopposed. In addition, I am satisfied that there has been a breakdown in the lawyer-client relationship and that the moving parties should be removed from the record accordingly.

[4] The moving party’s motion for a charging order, on the other hand, is a different story.

[5] The moving parties seek a charging order despite the complete lack of any reference to it whatsoever in the notice of motion. This strikes at the heart of procedural fairness and should not be tolerated. In our court, parties “should not have to guess, speculate, or intuitively understand what the issues to be decided are on a motion” (see: Ontario v. Adamson Barbecue Limited and Skelly, 2021 ONSC 4660, at para. 33).

[6] Furthermore, the moving parties utterly fail to meet the applicable three-part Weenen test (see: Foulidis v Foulidis, 2022 ONCA 362, at para. 21). The charging order sought is over “the property preserved or recovered in this action”, of which there is none, so the “existence of the property component” of the Weenen test cannot be satisfied. There is also no evidence to satisfy the “risk of non-payment component” part of the test.

[7] If that weren’t enough, the moving parties seek an order that the charging order “shall bind all subsequent lawyers, if any”, thereby seeking relief against parties who not only have not been served, but who have not even been identified.

[8] I do not accept counsel’s explanation that the problems with their motion were merely inadvertent slips and omissions that should be excused and swiftly passed over.

[9] Based on the above, I am left with the inevitable conclusion that the moving parties have attempted to “pull a fast one” in order to protect their unpaid accounts.

[10] Every breakdown in the lawyer-client relationship occasions – to one degree or other – stress and anxiety for both the client and the lawyer. The client is faced with, among other things, having to retain new counsel or be self-represented. The lawyer is faced with, among other things, possibly unrecoverable accounts. On the lawyer’s end of things, there is an inherent conflict between its interests and its obligation as fiduciary. Despite that conflict, however, counsel are subject to continuing obligations to their clients both during and after their retainers (see: TSX Trust Company v Fiorentino, 2023 ONSC 2560, at para. 5).

[11] In the case-at-bar, not only did the moving parties fail to properly resolve that conflict of interest, they also acted in a manner that, as referenced above, strikes at the heart of procedural fairness. This can be neither accepted nor tolerated.

[12] The motion for removal of the moving parties as lawyers of record is granted. The motion for a charging order is dismissed with prejudice.

[13] Order to go in accordance with the attached draft signed by me.

C. Chang J. Date: July 19, 2023.