Court File and Parties

COURT FILE NO.: CV-22-00000301-0000 DATE: 20240925 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BMO Trust Company, solely in its capacity as guardian of property for Patricia Hazel Louise Roper, Applicant AND: Lee Aubin, Respondent

BEFORE: Mew J.

COUNSEL: Paul G. Andrews, for the applicant Lee Aubin, litigant in person Clinton H. Culic, for himself and Veritasa Law Office

HEARD: 16 September 2024, at Kingston

Endorsement

[1] This application was commenced in 2022 by the Office of the Public Guardian and Trustee (the “PGT”) seeking, inter alia:

1. A finding that Patricia Roper was incapable of managing her own property;
2. The temporary appointment of the PGT as Ms. Roper’s guardian of property; and
3. Various other relief against the respondent, Lee Aubin, in her purported capacity as Ms. Roper’s attorney of property.

[2] The PGT’s application followed an investigation triggered when the respondent, pursuant to a power of attorney on behalf of Ms. Roper, purported to enter into agreements of purchase and sale to sell her home, and to purchase another home, with there being conflicting or disputed evidence with respect to the validity of powers of attorney pursuant to which Ms. Aubin had acted on Ms. Roper’s behalf. Subsequently, BMO Trust Company was appointed as Ms. Roper’s guardian of property, hence the current title of proceedings.

[3] The judicial history of this matter is quite extensive. There have been a number of scheduling and other procedural orders made by the court. These culminated in a case conference before me on 6 May 2024, following which I made adjustments to previous scheduling orders and directions provided by Mr. Justice Hurley on 27 July 2023, and by Madam Justice Jensen on 21 March 2024. The net effect of my order was to provide the following schedule:

1. The Respondent was to file a fresh as amended record by no later than 10 June 2024;
2. Any reply record was to be delivered by the applicant by no later than 8 July 2024;
3. Cross-examinations on affidavits, if any, were to be completed by 2 August 2024;
4. Factums were to be delivered by 4 September (applicant) and 9 September (respondent);
5. The parties were to deliver a joint compendium by 9 September;
6. Hearing of the application was set for 16 September 2024 at 10 a.m.; and
7. All of the foregoing dates were peremptory to the respondent.

[4] The respondent did file a fresh as amended record. The applicant filed a reply. There were no cross-examinations on affidavits.

[5] On 4 September 2024, the respondent’s lawyer, Clinton Culic, sent the applicant’s solicitors an email advising that Mr. Culic intended to bring a motion to have himself removed as the lawyer of record for the respondent. That communication did not include or refer to any motion material.

[6] On 9 September 2024, which was the deadline for delivery of the respondent’s factum, the applicant’s lawyer sent Mr. Culic an email confirming that no motion materials had been received and that, accordingly, the hearing of the application was expected to proceed on a peremptory basis as set out in my 6 May 2024 order.

[7] On 10 September 2024, Mr. Culic purported to serve motion materials relating to his motion to get off the record. These materials included a partially redacted affidavit sworn by Mr. Culic.

[8] Later the same day, amended motion materials were served, adding, in the prayer for relief, a request for leave to late-file the motion to get off the record.

[9] In accordance with the usual practice, privileged information contained in the motion material delivered by the solicitor was redacted. An unredacted copy was not provided to the court until shortly before the motion was heard.

[10] The applicant opposed Mr. Culic’s motion to be removed as lawyer of record, arguing that it would be extremely prejudicial to the applicant if the matter was further delayed, and pointing out that the respondent’s conduct had repeatedly led to lengthy and unnecessary delays in the hearing of the application, and that my order of 6 May 2024 had expressly addressed those repeated delays by making both the litigation schedule and the hearing date for the application itself peremptory to the respondent.

[11] The unredacted motion material discloses that Ms. Aubin and her spouse had failed or declined to execute a formal retainer agreement, despite numerous requests made by Mr. Culic that they do so. Mr. Culic also asserts that there is a substantial “amount owing” to his firm by the respondent, although it is unclear whether such amount represents billed or unbilled fees and disbursements.

[12] Mr. Culic states that he advised Ms. Aubin that he wished to get off the record as her lawyer on 8 August 2024. He suggested that she deliver a notice of intention to act in person (or retain another lawyer), failing which he would have to incur the time and expense of bringing a motion to have himself removed.

[13] Ms. Aubin attended for the hearing of the motion. She advised that she had attempted to file responding materials earlier on the morning of the hearing, but had been unable to do so. She agreed that the lawyer-client relationship with Mr. Culic had broken down, and that she no longer wishes him to represent her. Ms. Aubin said that she had also tried to file a respondent’s factum, but had been unable to do so because Mr. Culic remained her lawyer of record.

[14] Mr. Culic said that if his motion was denied, he would not be able to effectively represent Ms. Aubin’s interests if the substantive application was heard as scheduled.

[15] Ms. Aubin said that she, too, was not in a position to argue the application, and that she needed time to try and retain another lawyer.

[16] After hearing the submissions of counsel for the respondent, Mr. Culic and Ms. Aubin, I granted an adjournment of the application to a fixed date on terms, ordered costs thrown away payable by the respondent to the applicant in the amount of $7,500, and directed that a hearing should be scheduled for Mr. Culic to show cause why he should not be ordered to be personally liable to reimburse his client for the $7,500 costs award made against her.

Analysis

[17] I have serious concerns about the manner in which both Mr. Culic and Ms. Aubin have conducted themselves.

[18] Mr. Culic made the decision that he could no longer represent Ms. Aubin on 8 August 2024. Yet it was not until 4 September 2024 that he told the applicant’s lawyer that he would be seeking to have himself removed as lawyer of record.

[19] For her part, Ms. Aubin offered no explanation as to why, if she no longer wished Mr. Culic to act for her, she had not served a notice of intention to act in person. She claimed that she had spoken to other lawyers about taking over the case, but that none of these lawyers were prepared to talk about taking on her case until Mr. Culic had been discharged.

[20] Clearly, by no later than 8 August 2024, the lawyer-client relationship between Mr. Culic and Ms. Aubin had broken down. Yet neither of them took effective steps to terminate the lawyer-client relationship until Mr. Culic brought his motion, just days before a peremptory return date of the application.

[21] In Cengic v. Castro, 2020 ONSC 986, Myers J. denied a law firm’s motion for an order removing them as lawyers of record in a personal injury case that was scheduled to go to trial beginning nineteen days after the motion was heard.

[22] At paragraph 32 of his decision, Myers J. acknowledged that “[t]he choice of adjourning or proceeding without counsel is a Hobson’s Choice – both are bad outcomes. Both are prejudicial to [the plaintiff]. Both leave him imperiled and disadvantaged at a critical moment”. Myers J. noted that a further delay of a trial that had already been delayed for a year and was ready to go was prejudicial and imperiled the client. Reference was also made to the plaintiff’s fears for his mental health caused by the added stress and distress of being, as he saw it, deserted by his lawyer when he had done nothing wrong.

[23] With some reluctance, I came to the conclusion that it would be unduly punitive to force Mr. Culic to proceed to represent Ms. Aubin in circumstances where he has not prepared himself to do so.

[24] There would be a similar concern about proceeding with the hearing and forcing Ms. Aubin to represent herself. This is particularly so when her factum has not been placed before the court.

[25] In terms of prejudice to the applicant, I take some comfort from the fact that BMO Trust Company is now acting as guardian of property for Ms. Roper and, to that extent, Ms. Roper’s interests are adequately protected in the short term. However, Ms. Aubin remains, on paper at least, Ms. Roper’s attorney for personal care. Part of the relief sought by the applicant is that the power of attorney for personal care that purportedly appointed Ms. Aubin as Mr. Roper’s attorney for personal care should be terminated or rendered of no force and effect.

[26] As the combined applicant’s and respondent’s records already consist of more than 2,000 pages, most of which material I reviewed prior to hearing Mr. Culic’s motion, it would not be a productive use of the court’s resources for another judge to now have to start from scratch. Accordingly, although I am not seized of this matter, it will be adjourned to a date that is mutually convenient to me and counsel for the applicant.

[27] That date is Monday 23 December 2024.

[28] I advised Ms. Aubin that the application will proceed to be heard on that date, whether or not she has been able to secure a new lawyer to represent her at the hearing.

[29] The respondent is to deliver her factum by 8 November 2024. The applicant will have the option of delivering a short responding factum of no more than five pages in length by 22 November 2024.

[30] I further direct that no further evidence may be delivered in respect of the application without prior leave of the court.

Costs

[31] A further term of the adjournment is that the respondent must pay all outstanding awards of costs against her prior to the return date of the application. Counsel advised that the presently outstanding amount is approximately $5,000.

[32] In that regard, given the peremptory nature of the return date of this application, and the circumstances which have led to Mr. Culic’s last minute application to be removed as lawyer of record and the almost inevitable adjournment that has resulted, the applicant should be entitled to recover its costs thrown away on a full indemnity basis: Caldwell v. Caldwell, 2015 ONSC 7715.

[33] By extrapolation from the costs summary which Mr. Andrews had come to court with in anticipation of dealing with the issue of costs of the application as a whole, the costs thrown away amount to $7,500. Mr. Culic acknowledged the sum claimed appeared to be appropriate, although he had not had the benefit of reviewing or analysing Mr. Andrews’ summary.

[34] The figure of $7,500 also strikes me as reasonable.

[35] The remaining issue is who should pay those costs.

[36] In my view, the award should be made against the respondent in the first instance. I therefore order that the respondent should pay the applicant’s costs, fixed in the amount of $7,500.

[37] Should the respondent fail to satisfy in full the outstanding costs awards that have been made against her (that is, the unpaid balance of previous costs awards, plus the $7,500 costs of the adjournment thrown away) by the time the application is heard, and subject to the discretion of the application judge, the respondent’s responding application record will be deemed to have been struck out: Rule 57.03(2) of the Rules of Civil Procedure.

[38] That having been said, there would appear to be a serious issue as to whether Mr. Culic should be held personally liable to reimburse Ms. Aubin for the $7,500 costs award that I have made against her for the applicant’s costs thrown away. Such an order can be made pursuant to Rule 57.07(1)(b) of the Rules of Civil Procedure. Before making such an order, however, Mr. Culic is entitled to be given a reasonable opportunity to make representations to the Court.

[39] Accordingly, Mr. Culic will be given that opportunity, on 18 November 2024 at 2:00 p.m., to show cause why he should not be held personally liable to reimburse the costs award made against his (now) former client. Mr. Culic is to attend that hearing in person, unless, on the presentation of appropriate evidence of a medical reason preventing him from doing so, the Court orders otherwise.

Mew J. Date: 25 September 2024