Court File and Parties

COURT FILE NO.: CV-21-543-0000 DATE: 2023-08-10

SUPERIOR COURT OF JUSTICE – ONTARIO 491 Steeles Avenue East, Milton ON L9T 1Y7

RE: Hitachi Capital Canada Corp., Plaintiff -and- 7109903 Canada Inc. and Varinder Singh, Defendants

BEFORE: C. Chang J.

COUNSEL: G. Lamba, for the Moving Party S. Raza, for the Defendants (as Agent) No one else appearing

HEARD: August 10, 2023 (via videoconference)

ENDORSEMENT

[1] This is yet another so-called “off-record” motion where counsel feels that compliance with rules 15.04(1.2) and (1.3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and the proper discharge of a lawyer’s fiduciary obligations to his or her client are optional.

[2] The lawyer for the defendants (the “moving party”) brings this motion for an order removing him as their lawyer of record.

[3] As with too many of these motions that are brought, the moving party has completely failed to comply with the requirements of rules 15.04(1.2) and (1.3) of the Rules of Civil Procedure and included in his completely unredacted motion materials information that is protected by lawyer-client privilege and that could prejudice the defendants if disclosed to another person. Indeed, that information, now that it has been disclosed, is prejudicial to the defendants.

[4] Should I strain my eyes hard enough, I am just able to make out the faintest of silver linings: the fact that the moving party served on the plaintiff only the notice of motion, which contains less privileged and prejudicial information than the moving affidavit. That said, I have no assurance that neither the plaintiff nor its counsel has not viewed, received or otherwise obtained a copy of that affidavit.

[5] As set out in TSX Trust Company v Fiorentino, 2023 ONSC 2560, counsel’s alarming disregard of the requirements of rule 15.04 and of their legal obligations to their clients must stop. However, the admonishment at para. 8 of that decision, wherein I raise the possibility of sanctions against counsel, is clearly falling on deaf ears. Perhaps the actual imposition of a sanction will procure the necessary attention of counsel. Hopefully, an adverse costs order is all that will be necessary. Perhaps I am being overly optimistic.

[6] The moving party’s breach of rules 15.04(1.2) and (1.3), his clear violation of his fiduciary obligations to the defendants and the need for both specific and general deterrence, in my view, mandate appropriate sanction by way of a costs order in the all-inclusive amount of $750.00.

[7] I therefore make the following orders:

a. this motion is dismissed without prejudice to the moving party’s ability to properly bring it again, but in full compliance with rule 15.04; b. on the consent of Mr. Raza, the moving party may effect service on the defendants of his materials for that to-be-properly-brought motion by serving same on Mr. Raza; c. the plaintiff and its counsel shall forthwith completely destroy any and all copies of the moving party’s materials that either of them has received or obtained in respect of this motion; d. the motion record filed on this motion shall be removed from the court file and destroyed such that it does not form part of the court file; e. the moving party shall pay costs to the defendants, which are fixed in the all-inclusive amount of $750.00 and payable forthwith – these costs may be setoff as against any amounts owing by the defendants to the moving party on account of legal fees and/or disbursements; f. the moving party shall forthwith serve a copy of this endorsement on plaintiff’s counsel.

C. Chang J. Date: August 10, 2023