Court File and Parties

COURT FILE NO.: CV-16-2685-00 DATE: 2024 06 12 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Correct Group Inc. and Correct Building Corporation (Plaintiffs) AND: George Cameron and HGR Graham Partners LLP (Defendants)

BEFORE: M.T. Doi J.

COUNSEL: Anita Landry, for the Moving Party Colautti Landry Partners Professional Corporation Alan Furbacher, agent for the Plaintiffs

HEARD: June 7, 2024

Endorsement

Overview

[1] On this motion, the law firm, Colautti Landry Partners Professional Corporation (“CLP”), sought an order for its removal as solicitors of record for the Plaintiffs due to a breakdown in the solicitor-client relationship and a failure to pay for legal services rendered. The Defendants took no position on the motion. The corporate Plaintiffs, by their principal, Alan Furbacher, vigorously opposed the motion. Ricchetti RSJ set down the motion to be heard on June 7, 2024 and marked it peremptory on all participants.

[2] For the reasons that follow, the motion is granted.

The Plaintiffs’ Request to Adjourn the Motion

[3] When CLP’s removal motion returned on June 7, 2024, I denied the Plaintiffs’ request to adjourn the motion for reasons to follow. These are my reasons for not adjourning the motion.

[4] At the June 7, 2024 return, Mr. Furbacher on behalf of the Plaintiffs sought an adjournment of the motion by citing his poor health and a desire to consult legal counsel. However, he produced no medical evidence of any health issues, had raised no issues when the motion was scheduled and marked peremptory on all parties, and did not advise CLP of any intention to seek an adjournment, or otherwise raise any concerns, before making the adjournment request in court.

[5] The Plaintiffs knew since at least October 19, 2022 (i.e., when CLP served a draft consent for its removal as counsel of record) of the firm’s desire to be removed, and were served with draft materials for the removal motion on February 29, 2024. In my view, the Plaintiffs had more than ample time and opportunity to obtain legal advice and develop a complete understanding of the matters in dispute on the motion before it returned on June 7, 2024.

[6] CLP did not respond after the Plaintiffs inquired on May 9, 2024 about scheduling cross-examinations, that were directed to be completed by May 24, 2024. As a result, the Plaintiffs served a notice of examination returnable May 23, 2024 when Mr. Colautti was on vacation and unavailable. But following communications through their limited retainer counsel, the Plaintiffs agreed to cross-examine Mr. Colautti on May 31, 2024 and CLP advised that it was not examining Mr. Furbacher, the Plaintiffs’ affiant. Taking this all into account, I found that each side had adequate time and opportunity to conduct examinations and prepare for the motion. Both sides made clear and fulsome submissions to address the facts and issues in dispute on the motion.

[7] Accordingly, after balancing the interests of the parties and the goal of adjudicating the motion with fairness and appropriate judicial economy, I found that it would not be in the interests of justice to grant the adjournment request: Toronto-Dominion Bank v. Hylton, 2010 ONCA 752 at para 36; Malek v. Soliman, 2024 ONCA 330 at para 6.

Legal Principles for a Removal Motion

[8] In Brown v. Williams, 2023 ONCA 730 at paras 2-3, Roberts J.A. set out the principles to consider in deciding whether a lawyer should be allowed to withdraw from representing a client for good cause on reasonable notice to the client:

[2] The removal of a solicitor of record under Rule 15.04 of the Rules of Civil Procedure is within the court’s discretion. Although a client may terminate the relationship at will, Rule 3.7-1 of the Law Society of Ontario’s Rules of Professional Conduct provides that “[a] lawyer shall not withdraw from representation of a client except for good cause and on reasonable notice to the client”. Rule 3.7-2 allows that “…where there has been a serious loss of confidence between the lawyer and the client, the lawyer may withdraw.” The commentary gives examples of a serious loss of confidence justifying the solicitor’s withdrawal, including when “the client refuses to accept and act upon the lawyer’s advice on a significant point”. As the Supreme Court instructed in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, at para. 16, the rules of professional conduct of the profession’s governing body “should be taken as expressing the collective views of the profession as to the appropriate standards to which the profession should adhere” and “an expression of a professional standard in a code of ethics relating to a matter before the court should be considered an important statement of public policy.

[3] Considerations informing the exercise of the court’s discretion to remove a solicitor of record include the impact of the removal on the client’s interests, on the other parties, and on the administration of justice, and whether the solicitor and client relationship has broken down because of, for example, a loss of confidence in the solicitor’s abilities or the client’s failure to communicate or follow instructions and to make a reasonable payment on the solicitor’s reasonable accounts: R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 50; KingSett Mortgage Corporation v. 30 Roe Investments Corp., 2023 ONCA 196, at paras. 13 and 18; 1621730 Ontario Inc. v. Queen (Ontario), 2012 ONSC 604; Kovinich v. Kovinich (2008), 58 C.P.C. (6th) 78 (Ont. S.C.), at paras. 40-42; Nicolardi v. Daley (2003), 34 C.P.C. (5th) 394 (Ont. S.C.), at paras. 8-10 and 15-16; Johnson v. Toronto, [1963] 1 O.R. 627 (H.C.J.). While the impact of the removal on the client’s interests and the client’s views are important, the question is not simply whether the client wishes the solicitor to continue but whether all the circumstances, including, for example, the client’s loss of confidence, justify the solicitor’s withdrawal: Kovinich, at para. 41; Nicolardi, at para. 15.

[9] Among other things, counsel may seek a withdrawal where there has been a serious loss of confidence between the lawyer and the client, or where the solicitor and client relationship has broken down because of the client’s failure to make a reasonable payment on the solicitor’s reasonable accounts: Ibid. In deciding whether to grant a withdrawal, the court should consider the following non-exhaustive factors: a) whether it is feasible for the client to represent themself; b) other means of obtaining representation; c) the conduct of counsel, such as whether counsel gave reasonable notice to the client to allow them to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time; d) the impact on the client from delay in the proceedings; e) the impact on others in the proceedings, including the expected length and complexity of the proceeding; and f) the history of the proceeding, including whether the client changed lawyers repeatedly: R. v. Cunningham, 2010 SCC 10 at para 50; Todd Family Holdings Inc. v. Gardiner, 2015 ONSC 6590 at para 12; Baradaran v. Alexanian, 2020 ONSC 4759 at paras 5-6.

Discussion

[10] As set out below, I am satisfied that CLP’s motion should be granted.

[11] Although Mr. Furbacher argued that the Plaintiffs continue to have full confidence in their counsel at CLP, the written record suggests otherwise and clearly supports CLP’s submission that its relationship with the Plaintiffs has irreparably broken down. [1] Without disclosing details of their materials and submissions that referred to confidential information that is covered by solicitor and client privilege, I would note that the Plaintiffs are asserting that CLP has overbilled beyond the terms of its retainer agreements and repeatedly asked for more funds in exchange for continuing to provide legal services in various matters. [2] For its part, CLP claims that the Plaintiffs have significant unpaid accounts for legal services in related litigation, have not adequately paid their outstanding accounts, and are refusing to sign a retainer agreement and pay adequate retainer funds for legal services in this case as requested. [3] Given the significant billing dispute and the Plaintiffs’ refusal to enter into a retainer agreement and pay retainer funds (i.e., due to their claim that CLP has been overpaid), I am satisfied that CLP’s removal motion should be granted due to a serious loss of confidence and breakdown in the solicitor and client relationship that justifies CLP’s withdrawal: Brown at paras 2-3.

[12] I am not persuaded that the Plaintiffs would be seriously prejudiced by CLP’s removal at this stage of the proceeding. This action has stood in abeyance for a considerable period while related proceedings were addressed, and remains largely at the pleadings stage after a defence motion for summary judgment was dismissed and the COVID-19 pandemic disrupted discoveries. Although the Defendants are now proposing to bring a motion to strike the action, no such motion has yet been served. [4] In the circumstances, I am satisfied that the Plaintiffs have sufficient time to retain new counsel should they wish to be represented. Given the nature of the case and the matters in dispute, I am satisfied that the Plaintiffs are able to engage capable alternate counsel and I reject their submission that no other capable counsel can or would take on the retainer at a fair price and reasonable cost: Konstan v. Berkovits, 2019 ONSC 3063 at para 15; Baradaran v. Alexanian, 2020 ONSC 4759 at para 11-12; Hordo v. State Farm Mutual Automobile Insurance Company, 2021 ONSC 6193 at para 29. As CLP had served a draft consent for its removal on October 19, 2022 and later served draft materials for its removal motion on February 29, 2024, I accept that the Plaintiffs had fair and reasonable notice of CLP’s desire to be removed that allowed them to seek alternate legal representation: Brown at para 2. Although a removal may cause the parties to incur some delay or cost, I am not persuaded on the facts of this case that any such impact should strongly militate against granting the removal being requested.

[13] Taking everything into account, I find that it would be just and appropriate to remove CLP as counsel of record for the Plaintiffs due to the breakdown in their solicitor-client relationship. In exercising my discretion to grant the removal motion, I do not accept the Plaintiffs’ submission that a removal would be unfair or contrary to the administration of justice.

Outcome

[14] Accordingly, CLP’s motion to be removed as the Plaintiffs’ counsel of record is granted.

[15] Should the parties be unable resolve costs for the motion, CLP may deliver written costs submissions of up to 2 pages (excluding any costs outline or offer to settle) within 15 days, and the Plaintiffs may deliver responding submissions on the same terms within a further 15 days. Reply submissions shall not be delivered without leave.

Date: June 12, 2024 M.T. Doi J.

Footnotes

[1] Pursuant to Rule 15.04(1.3), CLP and the Plaintiffs filed unredacted materials for the motion that disclose solicitor-client privileged information about their relationship and dealings.

[2] In addition to the within action, Mr. Furbacher on behalf of Correct Group Inc. and Correct Building Corporation, respectively, retained or engaged CLP to act for the companies in the following matters: a) Correct Group Inc. v. Corporation of the City of Barrie (Court File No. CV-11-0384); b) Correct Building Corporation et al. v. Lehman et al. (Court File No. CV-13-5678); c) Correct Group Inc. et al v. Coon and YMCA of Simcoe/Muskoka (Court File No. CV-19-0459); d) Correct Group Inc. et al. v. Wirth et al. (Court File No. CV-16-2686); e) Correct Group Inc. et al. v. Cameron et al. (Court File No. CV-16-2685); f) Furbacher et al. v. Nichlson (Court File No. CV-20-0531); and g) Correct Group Inc. v. Bryson (Court File No. CV-19-0290).

[3] During the motion, CLP advised of its intention to seek further recourse from an assessment officer’s findings (i.e., that was not supportive of CLP’s position) after the Plaintiffs refused to pay the firm’s claimed unpaid account for legal services. In light of this, and the solicitor-client privilege over the disputed accounts, I shall refrain from commenting further on the alleged unpaid accounts and the positions that CLP and the Plaintiffs argued on the motion. Moreover, I concur with Myers J.’s comments in Konstan v. Berkovits, 2019 ONSC 3063 at para 13 that whether a removal is granted “ has no bearing or effect on any claim for breach of contract or for compensation that the clients may choose to bring [and] it would be a mistake to turn routine motions under Rule 15.04 into a form of assessment of breach of contract or breach of fiduciary duty. Whatever remedies, if any, the Plaintiffs may seek to pursue as a result of CLP’s conduct may be fully addressed in another proceeding that they may be advised to bring.

[4] On June 18, 2024, the court is conferencing the Defendants’ proposed Rule 21 motion to strike.