Court File and Parties

COURT FILE NO.: CV-12-00451341 RELEASE DATE: 20230209 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: RATNASINGAM, Plaintiffs AND: BALASUBRAMANIAM, Defendants

BEFORE: Associate Justice Josefo

COUNSEL: R. Plate, for the Plaintiffs/Moving Party S. Dewart, for the Defendants/Responding Party

HEARD: February 2, 2023 DECISION RELEASED: February 9, 2023

ENDORSEMENT

The Within Motion—Plaintiffs Seek Removal of Counsel Opposite:

[1] Lawyer Peter Yaniszewski (“Yaniszewski”) and the McCague, Borlack law firm (“McCague”) represent defendants in plaintiffs’ pending motion, returnable June 22, 2023 (“pending motion”). The plaintiffs’ pending motion seeks, inter alia, to set aside the January 13, 2014 Registrar’s Dismissal Order of this action and the full and final release dated January 30, 2014, signed by plaintiffs. In this within motion, in advance of the pending motion, plaintiffs seek the removal of Yaniszewski and McCague as counsel for defendants on the pending motion.

[2] Pursuant to the within Notice of Motion dated December 19, 2022, plaintiffs also sought the removal of the Dewart, Gleason law firm on the pending motion. Yet that position of plaintiffs subsequently changed. Only the McCague firm and Yaniszewski are, it was submitted when the within motion was argued, sought to be removed.

[3] Yaniszewski and McCague oppose the relief sought. They deny any justification for being removed from the record pursuant to the Rules or at law.

Underpinning Facts (& Allegations) Leading to the Within Motion:

[4] This action arose out of an April 17, 2010 motor vehicle accident (“MVA”). Plaintiff Anojan Ratnasingam (“plaintiff”) allegedly sustained “catastrophic injuries resulting in serious and permanent impairment of physical, mental and psychological functions” (from paragraph nine, Statement of Claim) in that MVA. Plaintiff hired a lawyer named Brad Duby (“Duby”), who practiced personal injury law, to pursue his tort claim against defendants, and to obtain his Accident Benefits (“AB”) through plaintiff’s no-fault insurer, TD Home & auto Insurance (“TD”). TD was also the casualty insurer for the named defendants.

[5] Duby issued the Statement of Claim on April 16, 2012. TD retained McCague to defend the tort action. A Statement of Defence was delivered on or about July 9, 2012. Originally, McCague partner Alan Drimer (“Drimer”) represented the defendants at the behest of the indemnifying insurer, TD. In November 2013 McCague partner Catherine Korte (“Korte”) assumed carriage of the tort defence.

[6] Duby provided McCague a signed authorization dated December 31, 2012 which allowed McCague to obtain the plaintiff’s AB file. The file ostensibly contained medical information which revealed the extent of the plaintiff’s severe brain injury sustained in the MVA. Plaintiff asserts that this information was thus known to Drimer and Korte who, nevertheless, it is alleged in essence took advantage of the inexperienced Duby, leading to an unjust and improvident settlement of the action and AB claim.

[7] Plaintiffs more specifically allege that a settlement meeting occurred on November 19, 2013. The plaintiffs were not present at this meeting. It is asserted by their current counsel that they were not even aware that the meeting was taking place; nor had they instructed Duby regarding settlement of either the tort or the AB claim. Present at the meeting was Duby, Korte, Jono Schneider, counsel for a different plaintiff passenger injured in the MVA, and Betty Levinson, the AB representative for TD. As recorded by Ms. Levinson in her November 19, 2013 log-notes, leaving out the sequence of negotiations, the settlement was ostensibly as follows:

“Accepted AB offer of 1,200,000 on the following conditions, that a medical notes is provided to TDI stating that he has capacity to understand that he is settling his AB file, that TDI will hold a 20 year reviewsion(sp) in TDI favor and pay for it, that TDI will approve the stream of income from the structure and that a min of 70% must be structured. All agreed. Tort settled at 1,022,500.00 all in (both claimants tort files)”

[8] In June 2014, the plaintiff’s brother, Aravind Ratnasingam (“Aravind”), who seeks at the pending motion to be added as a plaintiff and also as litigation guardian of the plaintiff, consulted lawyer David Wilson (“Wilson”), who has sworn affidavits in the within motion and for the pending motion. Wilson communicated with and he also met Duby to discuss this matter. Pursuant to Wilson’s December 13, 2021 affidavit, he ultimately concluded that:

• the information provided to him by Duby regarding the AB settlement was “false” (paragraph 66),
• the tort settlement was seemingly not received by the plaintiff, or that it was at least “unclear” if the bulk of it ever was received (paragraph 70),
• after reviewing Duby’s file, “it became apparent that Duby had not always been forthright with either myself or the plaintiff” (paragraph 72),
• some statements by Duby were “inaccurate” (paragraph 74).

[9] Wilson also swore that Korte told him that she had “nothing to do” with the AB file (paragraph 40). Yet despite hearing that from Korte, Wilson, at paragraph 41 of his affidavit attempts to cast doubt about Korte’s lack of knowledge (and her purportedly “unusual” lack of memory of the settlement) when juxtaposed with Duby’s recollection, upon which Wilson chose to rely (paragraph 42 of his affidavit), that Korte was TD’s counsel on both the tort and AB claims. This acceptance of what Duby told him is notwithstanding Wilson’s own examples, several shown above, of Duby being a poor if not dubious and unreliable historian.

[10] In or about April 2014, Wilson’s initial involvement in this matter ended. Yet, subsequently, Aravind retained him again, claiming that “any purported tort settlement had been rescinded according to Mr. Duby and that both the tort and accident benefits claims continued”, as stated at paragraph 22 of the plaintiff’s factum. At paragraph 26 of plaintiff’s factum, it is asserted that, “at no time have the plaintiffs ever received any of the settlement funds negotiated between Korte and Duby.”

[11] Duby was unfortunately deceased as of January 28, 2021.

[12] Beyond the allegation that the plaintiffs never received the settlement funds, plaintiffs assert that, in any event, for various reasons the settlement was “unconscionable”. As referenced above, the pending motion seeks to amend the proceedings to add Aravind as litigation guardian, and to set aside the release and the Registrar’s dismissal Order. Defendants, responding to the pending motion, rely on affidavits from Drimer and Korte. TD, again, the insurer of and thus indemnifier for the defendants, so it chooses counsel for defendants, wishes to continue using the McCague firm, including using McCaque to respond to the pending motion.

[13] Neither Drimer nor Korte will be counsel on the pending motion. Rather, Yaniszewski of the McCague firm will be counsel for TD/defendants. Moreover, to avoid any potential appearance of impropriety which may arise, Mr. Dewart, who was counsel on this within motion, will also appear on the pending motion to address allegations which may be raised concerning the actions or conduct of members of the McCague firm.

[14] The plaintiffs assert that this is insufficient. In essence, Mr. Plate submits that the administration of justice in this case requires that the McCague firm be removed as counsel for the defendants in advance of the pending motion.

Discussion—the law applied to these facts:

[15] There is much case-law which addresses when and if counsel opposite should be removed, which provides me with helpful guidance. Yet, trite though it may be, each case is unique, albeit with at times similarities with and thus useful for comparison purposes to prior decisions. Generally, as Master Glustein (now Justice Glustein) concluded in Mazinani v. Bindoo, 2013 ONSC 4744, what is called for in these matters is a “flexible approach” which considers “each case on its own merits”.

[16] In Mazinani, the Court considered a motion to remove a lawyer of record who could be a witness at trial. All the principles helpfully reviewed therein (at paragraphs 60-61 of that decision) thus apply mainly to that scenario—a lawyer who becomes a witness at trial—albeit these are still useful in all such cases where a motion to remove counsel opposite is made, including in this within matter. As I summarized the principles recently in TSCC No. 2519 v. Emerald PG Holdings Ltd., 2022 ONSC 3916, I will not repeat all these herein.

[17] The factual situations in Mazinani and in TSCC No. 2519 are different from the facts of this within matter. Indeed, this matter involves a pending motion, not a pending trial, although I agree that the pending motion is very important for both sides. I also agree that the motion will determine, inter alia, whether the case is or is not re-opened. It is thus equally consequential for the plaintiffs and for the insurer acting in the stead of the defendants (as is, most of the time, what insurers do in MVA claims in Ontario). If this action is re-opened, depending on the reasoning of the motions Judge in that regard and any findings made regarding the McCaque firm, it may at that time be appropriate for this issue of representation which is currently before me to be re-visited. Yet, for now, whether the case is to be re-opened is an uncertain, contingent future event.

[18] As the pending motion is a motion before a Judge, with no jury, and is not a trial, many of the concerns raised in Urquhart v. Allen Estate, [1999] O.J. No. 4816 (S.C.J.), particularly in paragraphs 26-28 with the discussion of jury, evidentiary, and other court-room dynamics, do not herein arise. At the pending motion, there will be no jury which could possibly be confused or inflamed. Rather, the parties will make submissions to a dispassionate Judge who will no doubt carefully consider all the circumstances and weigh all arguments made on the merits of the pending motion. Moreover, it is a given that the motions Judge will be alert to and so will control the court-room process to ensure that no harm arises to the parties or to administration of justice due to the representation of the defendants.

[19] A concern might possibly arise in a trial if a partner in a law firm is required to cross-examine her or his partner. A question might be, given dual loyalties, will the examining partner “go easy” on his partner being cross-examined? This is the scenario which counsel for plaintiffs submitted to me could arise at the pending motion, when Yaniszewski must cross-examine Drimer and Korte. Yet, as I discuss further ahead in these reasons, the hypothetical circumstance of this type of situation arising at a trial, so being raised in advance on a motion to disqualify long before trial, often leads to the result that such potential issues (which may never materialize in reality) are deferred to the prudent management of the trial judge.

[20] Again, and more apt to the circumstances in this case, not only is there no trial at this stage (and, depending on the outcome of the motion, there may never be one), most importantly, Yaniszewski will not be cross-examining his partners Drimer or Korte at all, let alone not in open court before the motions Judge, nor in front of a jury. Rather, the task of cross-examining Drimer and Korte on their respective affidavits sworn in response for the pending motion falls to counsel for the plaintiffs, Mr. Plate. Mr. Plate is clearly opposite in interest to Korte and Drimer. Thus, the purported worry that the cross-examining lawyer might be conflicted by dual loyalties, so will “go easy” on his partners, does not at all arise in this case, at least not for the pending motion.

[21] Additionally, given that this is a motion, there is no examination or testimony in open court (subject to the discretion of the Motions Judge). Rather, the cross-examinations, and any reply examinations, will take place in an examiner’s office either by zoom or in person, in advance of the pending motion, with only the transcript of such being used at the pending motion.

[22] Fears, therefore, of Yaniszewski feeling compelled to tread lightly with his partners or being conflicted so failing when questioning them to bring something forward which could hypothetically cast his partners in a negative light, simply do not arise in the context of this pending motion. Moreover, if negative allegations against the McCague firm arise at the pending motion, Mr. Dewart has been pro-actively retained to respond to and address these. This is, in my view, an important safeguard built into this case.

[23] A key decision in these situations remains relevant despite the passage of nearly 30 years. It is the Divisional Court decision in Essa (Township) v. Guergis; Membery v. Hill, 1993 CanLII 8756, 15 O.R. (3d) 573. There are two different decisions and fact situations in Essa: In Essa, counsel was appearing on an affidavit sworn by his partner. In Membury, counsel at trial was possibly to be a potential witness at trial. In both situations, the Divisional Court overturned the decision below, allowing those counsel to continue their respective representation of their clients.

[24] In these reasons I need not reiterate the distinction discussed in Essa between the Rules of Professional Conduct of the Law Society of Ontario, which do not preclude counsel from appearing on an affidavit sworn by another member of her or his firm, and the Rules of the Canadian Bar Association, which did then prohibit this. Near the end of the first part of the Divisional Court decision addressing Essa, the Divisional Court concluded as follows (paragraphs were then not numbered):

In Planned Insurance Portfolios Co. v. Crown Life Insurance Co. (1989), 1989 CanLII 4228 (ON SC), 68 O.R. (2d) 271, 58 D.L.R. (4th) 106 (H.C.J.), there are statements conflicting with those in the Bilson decision. Rosenberg J., at p. 273, noted the differences between the LSUC rules and the CBA Code and suggested LSUC rules appeared to deliberately delete the reference to the lawyer's partners.

Counsel for the LSUC on this appeal produced material indicating this was in fact so. He produced an extract from a report from the committee established by the LSUC to consider the matter which expressed concerns about the CBA Code on that point. The CBA Code was adopted in 1974. The LSUC adopted but amended the code in 1976.

In Planned Insurance Rosenberg J. noted at p. 274:

All counsel acknowledge that the local practice in Ontario is that lawyers frequently appear on motions where their partners have filed affidavits even when the matters are extremely controversial and where there have been long and contentious cross-examinations on the affidavits [emphasis added].

[25] In my view, what Justice Rosenberg observed, and what the Divisional Court cited with approval, presciently describes the pending motion in this matter. That pending motion will be “extremely controversial”, given what is alleged and at stake for both sides. There will be, I have little doubt, “contentious cross-examinations” of Korte and Drimer (and possibly of other parties). Yet none of that ought to, at this stage, cause me to preclude Yaniszewski from appearing on the pending motion, along with Mr. Dewart. In my view, a lawyer from the same firm making submissions on a contentious affidavit sworn by one of her partners or associates, or relying on other such controversial evidence, such as I expect will be relied on at the pending motion, happens routinely in Ontario, as a matter of course. See, in that regard, the decision of Services Financiers Element v. 1851424 Ontario Incorporated, 2017 ONSC 5224:

[13] I believe the current state of practice in civil litigation in Ontario supports a conclusion that the fact that a partner or associate of a firm has filed an affidavit on a motion (which is not an unusual practice) and has thereby become a witness on that motion, does not, in and of itself, lead to the automatic conclusion that the partner’s law firm must cease to act as lawyers on the matter. When considering the issue, a distinction is drawn between the partner or associate appearing as a witness at trial, versus the partner or associate appearing as a witness on a motion: a stricter approach will be had in the trial context, as compared to the motion context. (see Zesta Engineering Ltd. Cloutier, [2000] O.J. No. 1060 (SCJ) at para. 8.)

[14] Our courts have recognized that the practice in Ontario is that lawyers frequently appear on motions where their colleagues have filed affidavits, even when the matters are controversial and where there has been long and contentious cross-examination on the affidavits.

[15] One of the guiding principles in civil litigation today, is proportionality. If Chen’s position were to be accepted, a significant number of law firms would be subject to the same challenge every time a controversial issue was argued on a motion – something that would become prohibitively expensive, as separate counsel would always need to be retained on such motions. Convenience, cost effectiveness and efficiency are important considerations.

[26] Master Short in Services Financiers Element drew a distinction between trials and motions, with which distinction I agree is worthy of careful consideration, and which distinction I discuss further, below. He also observed that, in matters such as this, proportionality is important. Again, I agree. Overall, arising out of Essa and the other decisions which have addressed this matter, there is I conclude, no present basis to disqualify McCaque or Yaniszewski from the pending motion.

[27] Yet, what Mr. Plate in essence submitted was that the Membury discussion in Essa is more relevant to the pending motion in this matter. Again, Membury involved one of his (Membury’s) lawyers at trial, Mr. Green, potentially being called as a witness at the trial. As Mr. Green would potentially be a witness at trial, counsel opposite sought to have the law firm acting for Membury removed from the record as it would be “an appearance of impropriety” otherwise.

[28] The Divisional Court disagreed. It found the application to remove premature, and not involving key factors addressed in MacDonald Estate v. Martin 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235. The Divisional Court concluded as follows:

I believe courts should be reluctant to make what may be premature orders preventing solicitors from continuing to act. 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 do so only in clear cases. I adopt the approach taken on this point in Carlson v. Loraas Disposal Services Ltd. (1988), 1988 CanLII 5377 (SK KB), 30 C.P.C. (2d) 181 at p. 188, 70 Sask. R. 161 (Q.B.).

As discussed in the Carlson decision, an application to remove counsel can be made to the trial judge when it is certain there is a problem. In this case Mr. Green may, or may not be, subpoenaed to testify. Concessions or admissions may be made which will obviate the need to call him as a witness. The evidence he could give may be readily obtainable from other witnesses. As issues are developed, or resolved during trial, his evidence may not be required at all. A trial judge will be in a much better position to determine if his firm should be disqualified.

I do not accept the argument that when a lawyer is compelled to testify against the "other" side in a lawsuit the lawyer's firm must always be prevented from acting in the lawsuit. There are a variety of scenarios which might develop at, or during, trial. The possible conflict as discussed in the Kitzerman decision, supra, should not automatically result in a law firm's removal. In the course of litigation an honest witness is often compelled to give evidence which will assist a party that witness feels is "opposite". I do not agree that such a possible conflict requires removal in all cases. There may be some where it does. I am not persuaded that decision should be made at this pre-trial stage of the proceedings in this case.

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. [emphasis added].

[29] In this within matter, Mr. Plate submitted that, unlike in Membury, where it was uncertain that lawyer Mr. Green would have to testify at trial, in this matter there is no doubt that Korte and Drimer will, for the pending motion, testify. It is not a potential issue that could arise; rather, it is a certainty that their evidence will be before the motions Judge. I agree. Yet, as I referenced above in these reasons, per Membury, even such circumstances in fact arising at trial (as contrasted with at a motion) does still not automatically lead to the removal of counsel opposite. Steps short of removal must first be considered. As that is the process for such a conflict which arises at trial, then, for a pending motion a stricter standard should surely not apply. Indeed, for reasons discussed, the risks are far more muted at the pending motion in this matter, including any conceivable risk to the administration of justice, generally (and I can think of no such risk arising on the facts of this matter which could justify pro-active, early removal).

[30] As discussed above, these lawyers will not be testifying viva voce at trial (at least, not at this stage). Rather, their evidence for the pending motion will be by affidavit and, following cross-examination, all relevant evidence will be presented to the motions Judge and will be addressed by counsel making their respective submissions as to the significance, or lack thereof, of such evidence. In my view, that is an important difference in this within case as contrasted with a pending trial in Membury where Mr. Green might have had to testify in open court, even though he was trial counsel. Yet, even so, Mr. Green still was not removed as counsel by way of motion brought before the trial.

[31] From the Divisional Court analysis in Membury, moreover, even if a lawyer at trial must be a witness on some point during the trial, such is still not grounds for an automatic disqualification of that lawyer or her/his law firm. Depending upon the circumstances, the lawyer may or may not be able to carry on as counsel. Such issues will again be, except in clear cases, usually not decided at a prior motion. Rather, applying the common-sense analysis in Membury, it will be for the trial Judge to assess those circumstances of trial counsel who may be called to testify, as these unique circumstances exist at the time of the trial, and to then make the appropriate determination to protect the administration of justice as well as to appropriately balance all the competing rights and interests.

[32] Applying the analysis in Membury, therefore, that Korte and Drimer will testify by way of affidavit on the pending motion is, I find, no basis for me to disqualify them now, even if the pending motion was the equivalent of a trial (which, I again emphasize, it is not). If legitimate concerns arise when the pending motion is argued (leaving aside that I presently foresee none), these can be addressed by the motions Judge, to weigh such at the time, and to make the appropriate determination to protect the administration of justice whilst balancing the competing rights and interests of the litigants.

[33] The Divisional Court in Essa also emphasized that clients ordinarily may choose their own lawyer. Of course, that is a well understood principle. In my view, this principle answers Mr. Plate’s submissions that, in essence, TD, a large corporate conglomerate, has many outside and in-house counsel from which it may select. That is likely true. Yet when this case arose, TD chose the McCague firm for its representation of its insured, the alleged tortfeasors. TD maintains that choice. Whether a client is big or small, an individual or a corporation, the client has the right to select a lawyer or law firm of its choosing—the firm or lawyer whom the client believes is best suited for its representation in a particular case. While not itself a determinative factor in all circumstances, nor a veto, because ultimately the decision when such choice is challenged is made by the Court, that choice of the client should not lightly be cast aside.

[34] In my view, for all these reasons, the plaintiffs’ motion seeking the removal of lawyer Yaniszewski and McCague is premature, at best. In this case, at this juncture, I see no genuine likelihood of a real conflict, nor the risk of tainted evidence, referring to one of the “Essa factors” referenced in that decision. I thus dismiss the motion.

[35] Defendants asked me to do so “with prejudice”. After consideration, I decline to do so. This is because while I presently foresee no basis for this motion being renewed before the motions Judge, I cannot predict what might arise in any action. I thus leave it to the plaintiffs to decide if circumstances change or if new evidence surfaces, such as to justify a fresh motion to the motions Judge or, ultimately, should the plaintiffs prevail at the pending motion, bringing a fresh motion generally or to the trial Judge.

Costs and an Order:

[36] To recap, the Motion is dismissed, with plaintiffs able to bring a fresh motion upon a change of circumstances or with new evidence to the motions Judge hearing the pending motion or, ultimately, should the plaintiffs prevail at the pending motion, to making a fresh motion generally or to the trial Judge.

[37] A draft Order may be sent to me through ATC Ms. Sharma.

[38] Addressing costs, the process agreed upon when the motion was argued was that counsel would hopefully agree on an amount for costs, no matter which side prevailed. I would thus award that agreed upon quantum of costs to the party successful on this motion. Mr. Dewart on behalf of Mr. Plate and himself sent the following message to me on February 7th:

The parties have agreed to fix costs at $11,580 all in, to follow the event. The plaintiff submits that the costs fall within the just criteria of Rule 57.03 and should be payable in any event of the cause. The defendants submit they should be payable within 30 days as provided for in Rule 57.03(1)(a).

[39] As the defendants prevailed, the defendants are entitled to their costs. The agreed-upon figure of costs for this motion is $11,580. Thus, I will insert that quantum into the Order, when I receive a draft, granting costs to the defendants.

[40] Addressing when such are payable, I see no basis to depart from the standard in Rule 57.03(1)a. The usual “user pay” principles ought to apply. Moreover, while the plaintiff asserted that it made the motion without ulterior motive and in “good faith”, referring to another of the factors noted in Essa, I am not certain that I agree. In my view, it was not good faith to initially seek the removal of Mr. Dewart along with the McCague firm, for one example. That was at least over-reach. Thus, in all the circumstances costs are payable 30 days from the date of this decision.

Associate Justice J. Josefo

Date: February 9, 2023