COURT OF APPEAL FOR ONTARIO
CITATION: Brown v. Williams, 2023 ONCA 730
DATE: 20231101
DOCKET: M54613 (COA-23-CV-0377)
Roberts J.A. (Motion Judge)
BETWEEN
Frank Brown
Plaintiff
(Respondent/Responding Party)
and
Jeremy Williams
Defendant
(Appellant/Responding Party)
Rovena Hajdëri and Lujza Csanyi, for Stieber Berlach LLP
Jeremy Williams, acting in person
No one appearing for the respondent, although properly served
Heard: October 30, 2023
ENDORSEMENT
[1] The appellant’s solicitors, Stieber Berlach LLP, move for an order removing them as solicitors of record for the appellant. The respondent takes no position on this motion. The appellant asks that his counsel not be permitted to get off the record until after the hearing of his appeal, scheduled for November 16, 2023. This motion was adjourned from October 25, 2023 and marked peremptory to the appellant to allow him to “present his ‘side of the story’”. The appellant did not file any responding materials.
[2] The removal of a solicitor of record under r. 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] 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.
[4] I am satisfied from the materials filed that the motion should be granted. While the appellant submitted that he has full confidence in his solicitors, his emails and lack of communication suggest otherwise and support his solicitors’ submission that the relationship has irreparably broken down. Moreover, he has failed to comply with the clear terms of the retainer agreement, arguing, without evidence, that the retainer was amended and obviated the obligation to pay the full amount provided for in the retainer.
[5] I am not persuaded that the appellant will be materially prejudiced by the removal of his solicitors at this stage. Given the correspondence between them and his long overdue compliance with the retainer agreement, the removal motion could not have come as a surprise to him. The appeal is perfected and scheduled for hearing on November 16, 2023. The appeal is not complicated. I am satisfied that the solicitors gave the appellant adequate notice of the need to appoint new counsel expeditiously.
[6] If the appellant seeks to be represented by counsel but cannot retain another lawyer in time for the hearing and wishes to seek an adjournment of the hearing date, he should do so without further delay by asking the respondent for his consent or communicating with the civil trial coordinator of this court. Whether he obtains an adjournment is within the court’s discretion and is by no means certain. However, any delay is seeking an adjournment will diminish the possibility of obtaining one.
[7] If any costs of this motion are sought, brief written submissions of no more than two pages, plus a costs outline, may be sent to my attention within 5 days of the release of these reasons.
“L.B. Roberts J.A.”