Court File and Parties

COURT FILE NO.: CV-21-3306-00 DATE: 2024 01 03

SUPERIOR COURT OF JUSTICE – ONTARIO 7755 Hurontario Street, Brampton ON L6W 4T6

RE: HORVAT, Adalbert, Plaintiff AND: ALAM, Muhammad M, Defendant 1 ALAM LAW FIRM, Defendant 2

BEFORE: Justice Wilkinson

COUNSEL: LAFRAMBOISE, Doug, for the Plaintiff MARTIN, Bronwyn, for the Defendant 1

HEARD: December 21, 2023, by video conference

RULING ON MOTION

[1] The Defendants move for an Order removing Douglas LaFramboise as counsel of record for the Plaintiff, and from participating as counsel of record with respect to this action. They submit that he has a conflict of interest, and should not be permitted to continue to represent the Plaintiff.

[2] Mr. LaFramboise does not believe that he has a conflict of interest in this matter, and asks that this motion be dismissed.

[3] For the reasons that follow, I find that Mr. LaFramboise is in a conflict of interest, and shall be removed as counsel of record for the Plaintiff.

Background – Undisputed Facts

[4] This action arises out of a workplace injury on May 18, 2017, in which the Plaintiff, Adalbert Horvat, was struck by a forklift operated by a co-worker. The Plaintiff retained the Defendants in the present action, Muhammad Alam and Alam Law Firm, to pursue a claim for compensation as a result of this injury.

[5] The Defendant, Muhammad Alam, provides affidavit evidence that he cautioned the Plaintiff that the action was likely statute barred pursuant to the Workplace Safety and Insurance Act, but the Plaintiff instructed him to commence a claim anyway. There is ongoing litigation between these two parties. I make no findings as to the advice given by Mr. Alam to the Plaintiff.

[6] A Statement of Claim was filed on December 6, 2017 against CJR Wholesale Grocers Ltd. a.k.a. Rabba Fine Foods (“Rabba Foods”), and RML 5876 Coopers Limited, which was the owner of the property where the forklift injury took place. These Defendants jointly retained Mr. LaFramboise to defend them in the forklift action.

[7] The Plaintiff eventually became aware that his injury occurred on the part of the premises that was controlled by Central Ontario Dairy, and that they were a Schedule 1 employer. Further, the Plaintiff was employed by a company that was under contract to Central Ontario Dairy. Mr. Alam provides evidence that he was concerned that the Plaintiff would likely be unsuccessful in his action against the Defendants for his injury from the forklift, as a result of the impact of the Workplace Safety and Insurance Act.

[8] Mr. Alam provides evidence that he advised the Plaintiff against bringing a motion to amend the title of proceedings in the Statement of Claim to include Ontario Central Dairy as a Defendant.

[9] Mr. Alam communicated to Mr. LaFramboise that he intended to bring a motion to add Central Ontario Dairy as a Defendant in the litigation. Mr. LaFramboise indicated to Mr. Alam that he intended to bring a motion seeking to have the action dismissed as against the forklift Defendants. Mr. Alam and Mr. LaFramboise engaged in numerous email communications attempting to set a schedule for these motions.

[10] The Plaintiff’s motion to add Central Ontario Dairy as a Defendant in the forklift litigation was served on Mr. LaFramboise and Central Ontario Dairy on December 12, 2019. This motion was adjourned sine die on August 31, 2020.

[11] The retainer between the Plaintiff and Mr. Alam was terminated on September 20, 2020.

[12] On October 26, 2020, Mr. Alam’s office served Mr. LaFramboise with the Plaintiff’s Notice of Intent to Act in Person. The parties agree that once Mr. Alam was no longer representing him, the Plaintiff began negotiating directly with Mr. LaFramboise regarding the costs that he was potentially exposed to pay resulting from commencing the lawsuit for the forklift injury.

[13] The Alam Defendants provide a copy of an email from Mr. LaFramboise to the Plaintiff, in which Mr. LaFramboise suggests to the Plaintiff that he liquidate some of the equity in his home to pay costs to Mr. LaFramboise’s clients arising from the forklift injury litigation.

[14] Mr. Alam provides affidavit evidence that when the Plaintiff was negotiating with Mr. LaFramboise regarding the costs he was being asked to pay, the Plaintiff reached out to Mr. Alam seeking advice regarding his ongoing negotiation with Mr. LaFramboise.

[15] The Plaintiff provides a copy of the transcript from his examination for discovery in the present action, wherein he confirms that he paid $9,000 in costs to the Rabba Foods Defendants in the forklift action, who were being represented by Mr. LaFramboise.

[16] The Plaintiff provides a copy of a Notice of Discontinuance of his action regarding the forklift injury that was filed on June 11, 2021.

[17] On July 22, 2021, the Plaintiff commenced the present litigation against the Alam Defendants, alleging negligent representation. Mr. LaFramboise is counsel of record for the Plaintiff in this litigation.

The Issue

Is Mr. Laframboise in a conflict of interest representing the Plaintiff in the current action?

[18] The Statement of Claim against the Alam Defendants refers specifically to communications between Mr. LaFramboise and Mr. Alam that took place when Mr. Alam was still representing the Plaintiff.

[19] One of the allegations in the Plaintiff’s Statement of Claim against Mr. Alam for negligent representation is that he was required to re-mortgage his home because of the litigation costs.

Position of the Moving Party, the Alam Defendants

[20] The Defendants submit that Mr. LaFramboise is a material witness in the ongoing litigation between the Plaintiff and the Alam Law Defendants. They point out that the quantum of costs the Plaintiff paid to the Rabba Food Defendants for the forklift injury litigation were a direct result of the Plaintiff’s negotiations with Mr. LaFramboise on behalf of his client, Rabba Foods.

[21] The Defendants also note that in the Statement of Claim against the Alam Defendants, the Plaintiff pleads that he had re-mortgage his home to survive, resulting from the alleged negligence of the Defendants. In particular, the claim makes reference to the actions of Mr. LaFramboise at paragraph 22, which states: "The lawyer for the Rabba defendants wrote numerous times to counsel for the Plaintiff advising that the parties to the action were incorrect and Alam ignored all advice."

[22] The Defendants therefore argue that Mr. LaFramboise was directly involved in the events that led to the present litigation, and is a witness to the conversations between himself and the Alam Defendants that form a basis of the negligence claim against the Alam Defendants.

[23] The Defendants further indicate that the damages that the Plaintiff is alleging he suffered all occurred when Mr. LaFramboise was counsel for the Defendants in the original forklift injury claim.

[24] The Defendants submit that it need not be a certainty that Mr. LaFramboise will be called as a witness, it only needs to be a likelihood. Further, they suggest that Mr. LaFramboise's role as an advocate cannot be reconciled with his role as a witness, and that his dual roles will give rise to a conflict. They argue that even if Mr. LaFramboise does not give evidence, if he remains counsel of record, he will be asking questions in cross about events in which he was a participant.

[25] The Defendants also argue that the potential exists for Mr. LaFramboise’s conduct to be called into question when the manner in which the Plaintiff’s cost payment from the forklift action is analyzed. They therefore argue that Mr. LaFramboise has a direct interest in the outcome of the litigation beyond simply being an advocate, which creates a conflict between his duty to the client and his duty to the court to provide objective advocacy.

Position of the Responding Party, the Plaintiff Adalbert Horvat

[26] On behalf of the Plaintiff, Mr. LaFramboise argues that the Defendants do not provide any evidence that he has a beneficial interest in the outcome of this case.

[27] Mr. LaFramboise states that he has no duty of care towards the Alam Defendants, and therefore, he is not in a conflict of interest in representing the Plaintiff in the litigation against these Defendants.

[28] Mr. LaFramboise also states that the fact that he wrote a letter on behalf of the Defendants in the forklift litigation case does not make him a witness in the present case. Mr. LaFramboise further states that the communications between the Alam Defendants and the Plaintiff are not his documents, and he therefore has no conflict in representing the Plaintiff in this present action.

[29] The Plaintiff submits that he has the right to select whatever lawyer he chooses, and that if he has to find a new lawyer it will cause him to incur additional costs, and cause additional delay. Mr. LaFramboise also stresses that there is no evidence that any mischief will result if he remains on the record for the Plaintiff.

[30] Mr. LaFramboise argues that the prejudice to the Plaintiff in not being permitted to hire the counsel of his choice outweighs any prejudice to the Defendants if Mr. LaFramboise continues to act for the Plaintiff.

[31] Mr. LaFramboise suggests that this motion to have him removed as counsel is just a delay tactic.

The Law

[32] A motion to remove opposing counsel is not brought pursuant to any statute or rule. Rather, the jurisdiction to make such an order is found in the inherent right of the court to determine, in a judicial manner, to whom it will give audience (Urquhart v Allen Estate, [1999] O.J. No. 4816 (S.C.) at para. 11).

[33] The test to be applied when determining if counsel should be removed from the record is set out by Associate Justice McAfee in Karas v. Ontario, 2011 ONSC 5181, at para. 26:

The overarching test to be applied on a motion to remove a lawyer from the record 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 very fact specific and based on an examination of all of the factors in the case and the specific reason why the motion is being brought. The task of the court is to uphold and preserve the integrity of the justice system while ensuring that litigants are not deprived of their counsel of choice without good cause.

[34] While there is no law against counsel being a witness in a case in which they are involved, courts have consistently indicated that this situation is undesirable. In Urquhart v. Allen Estate, Justice Gillese (as she then was) stated at paras. 27-28:

27 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.

28 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. The dual roles that Mr. Gilby intends to fulfill compromises the integrity of the system. As I can see no way to alter the process that respects the rights of both parties, fulfills the needs for due process and maintains regard for the dictates of the proper administration of justice, in these circumstances plaintiffs' counsel cannot be permitted to continue…

[35] This issue was discussed more recently in Bose v Bangiya Parishad Toronto, 2018 ONSC 7639 at para. 98, where Justice Perell confirms that a lawyer who is a witness should not be permitted to continue acting as counsel, even if they will not be testifying in the case:

If it is clear from the outset of a proceeding or if it becomes clear during the proceeding that the advocate will be a material witness, he or she should be disqualified and removed as lawyer of record. The disqualification arises even if counsel does not intend to testify because his or her involvement in the matter based on participation and actual knowledge of the events rather than based on just taking instructions from his clients creates a conflict between his or her duty to the court and his or her duty to the client.

[Citations omitted]

[36] The right of a litigant to retain counsel of its choice is not an absolute right, and can be outweighed when the administration of justice will be detrimentally affected by the lawyer remaining on the record (George S. Szeto Investments Ltd. v Ott, at para. 21).

[37] There must be a possibility of real mischief to take away a litigant’s right to have their counsel of choice represent them. The test is whether a fair-minded and reasonably informed member of the public would conclude that counsel’s removal is necessary for the proper administration of justice (Best v Cox, 2013 ONCA 695 at para. 8, referring to Kaiser (Re), 2011 ONCA 713, 205 O.A.C. 275).

[38] The Divisional Court of Ontario also provides guidance in Essa (Township) v. Guergis; Membery v Hill (1993), 15 O.R. (3d) 573 (Div. Ct.) as to the factors to be considered when determining if a lawyer should be removed from the record at para. 48:

a) the stage of the proceedings b) the likelihood that the witness will be called; c) the good faith (or otherwise) of the party making the application; d) the significance of the evidence to be led; e) the impact of removing counsel on the party's right to be represented by counsel of choice; f) whether trial is by judge or jury; g) the likelihood of a real conflict arising or that the evidence will be "tainted"; h) who will call the witness; and i) the connection or relationship between counsel, the prospective witness and the parties involved in the litigation.

Analysis

[39] In considering the Essa factors set out above, I am satisfied that the administration of justice will be detrimentally affected if Mr. LaFramboise is permitted to continue acting for the Plaintiff in this matter.

[40] The evidence of Mr. LaFramboise regarding his communications with the Alam Defendants is a key aspect of the Plaintiff’s case. I am satisfied that there is a strong likelihood that Mr. LaFramboise will be required to give evidence at the trial of this action. If Mr. LaFramboise is permitted to continue acting for the Plaintiff, he will potentially be both counsel and a witness at the trial.

[41] Even if Mr. LaFramboise undertakes not to call himself as a witness at the trial, the Defendants have confirmed that they will call Mr. LaFramboise as a witness. This scenario would lead to either the Plaintiff, or someone else on his behalf questioning Mr. LaFramboise at the trial of this action. This situation creates the risk that Mr. LaFramboise’s evidence will be tainted as a result of his involvement in the prior litigation. At minimum, there will be a perception that his evidence is tainted.

[42] Although the present proceeding is at a fairly early stage, having not yet proceeded through examinations for discovery, it is preferred to determine this issue now to avoid complications at discovery that may occur if Mr. LaFramboise were permitted to continue acting for the Plaintiff.

[43] As counsel, Mr. LaFramboise has a duty to the court to represent his client in a manner free from any conflict of interest. In the present case, the damages the Plaintiff alleges to have incurred took place as a result of Mr. LaFramboise’s insistence on obtaining costs from the Plaintiff in favour of his previous clients in the forklift injury litigation. The potential for conflict of interest is ripe.

[44] Although the right of the Plaintiff to select a lawyer of his choice is recognized, this factor is outweighed by the inherent conflict of interest created by Mr. LaFramboise having previously acted for the Defendants in the forklift injury litigation.

[45] In my view, a fair-minded reasonably informed member of the public would conclude that the proper administration of justice requires the removal of Mr. LaFramboise under these circumstances.

[46] The Defendants’ request to remove Mr. LaFramboise as counsel of record for the Plaintiff is granted.

Costs

[47] Mr. LaFramboise is not permitted to negotiate payment of costs for this motion with the Defendants. The Plaintiff may negotiate costs on his own, or may hire new counsel to negotiate the costs of this motion on his behalf.

[48] If the parties are unable to agree upon costs, the Alam Defendants are to prepare submissions no longer than three pages double spaced by January 20, 2024, not including any Bills of Costs or Offers to Settle. Mr. Horvat’s response is also to be limited to three pages double spaced, and is due 15 days after receipt of the Alam Defendants’ cost submissions. No reply submissions shall be filed unless requested by me. Costs submissions shall be sent to my judicial assistant Melanie Powers at melanie.powers@ontario.ca. If I have not received any submissions within the time frames set out above, I make no order as to costs.

Wilkinson J.

Released: January 3, 2024