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Representation - Lawyers - Removal from Record. Altman v. Altman
In Altman v. Altman (Div Court, 2024) the Divisional Court orders the removal of the appellant's solicitor of record, opposed only by the respondent:[1] The Appellant’s lawyer, Mr. Joseph, brought a motion returnable today, removing McDonald & Partners LLP as solicitors of record for the Appellant in the Divisional Court proceedings. The Appellant, Mr. Altman does not oppose the motion. The Respondent, Ms. Altman, does oppose the motion.
[2] For the reasons set out below, effective March 29, 2024, McDonald & Partners are removed as solicitor of record for the Appellant, without prejudice to the motion scheduled before the Superior Court of Justice on March 28, 2024.
[3] In R. v. Cunningham, 2010 SCC 10 (CanLII), the Supreme Court of Canada outlined a set of principles on which a lawyer may be permitted to withdraw from acting for a client in criminal matter. The Court also commented that reffusing to allow counsel to withdraw should be a remedy of last resort (for obvious reasons). The principles were confirmed as applicable to civil and family law matters by Faieta J., in Froom v. Lafontaine, 2020 ONSC 5650 (CanLII) at paras 20-21).
[4] An affidavit was filed in support of the motion, setting out the breakdown in the relationship between Mr. Joseph and his client. In considering the factors set out in by the SCC and with one caveat below, I am satisfied that there has been a breakdown in the relationship and McDonald & Partners LLP should be permitted to withdraw as counsel for the Appellant.
[5] What troubles me about this motion is the issue of timing, not in this court, but in the overall proceedings between the parties. As per my direction earlier today, there is already a schedule in place for the proceedings in Divisional Court, which schedule is peremptory on the Appellant, so there is no prejudice to the Respondent by Mr. Joseph being removed as solicitor of record. However, there is a long motion scheduled to be heard in the SCJ on March 28, 2024. The Respondent is seeking to strike the Appellant’s pleadings for failure to provide financial disclosure and for being in breach of court orders.
[6] Mr. Joseph consented to the date for the motion in the SCJ. The date was adjourned specifically to meet Mr. Joseph’s schedule. The breakdown in the relationship was not sudden or recent but has been ongoing. This case can be distinguished from some of the cases referred to in the Appellant’s factum because Mr. Joseph is not withdrawing for ethical reasons, but because there has been a breakdown in the relationship.
[7] There are different factors to consider in the motion to remove McDonald & Partners LLP as solicitor of record in the SCJ and in the corresponding request to adjourn Ms. Altman’s motion to strike Mr. Altman’s pleading. The SCJ to not bound by the decision of this court and this decision is being made without prejudice to Ms. Altman with respect to the motion to remove McDonald & Partners LLP as solicitors of record in the SCJ and Ms. Alman’s pending motion to strike.
[8] As such, the removal of McDonald & Partner’s LLP as solicitor of record is only effective as of March 29, 2024, and only as it relates to the proceeding in the Divisional Court. . Brown v. Williams
In Brown v. Williams (Ont CA, 2023) the Court of Appeal considers a motion by solicitors for removal from record:[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 CanLII 32 (SCC), [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 (CanLII), [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 CanLII 128 (ON SC), [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. . 25162116 Ontario Ltd. (Numbrs) v. Abledocs Inc.
In 25162116 Ontario Ltd. (Numbrs) v. Abledocs Inc. (Ont CA, 2023) the Court of Appeal considered a solicitor's motion for removal from the record [under R15.04]:[4] Miller Thomson’s main argument is that there has been a breakdown in the solicitor-client relationship because of the appellant’s failure to pay all of Miller Thomson’s accounts. ...
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[6] The court has the discretion to refuse to remove a law firm from the record. Considerations informing the exercise of this discretion include not only the interests of the law firm’s client but also comprise factors independent of the solicitor-client relationship, such as the impact on the other parties to the proceedings and the effect on the administration of justice: R. v. Cunningham, 2010 SCC 10 (CanLII), [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; Tremblay c. Banque de Montréal, 2023 QCCA 691, at para. 21. . Pomata Investment Corp. (Treasure Hill Homes) v. Yang
In Pomata Investment Corp. (Treasure Hill Homes) v. Yang (Ont CA, 2023) the Court of Appeal considered a lawyer's duties when being 'removed from the record':[11] Further, Mr. Lulic never brought a motion to this court to be removed as the counsel of record. Rule 15.05 of the Rules of Civil Procedure requires a lawyer to act unless the client removes the lawyer or a court order has been obtained to remove the lawyer from the record. Similarly, a lawyer’s professional obligations require reasonable notice to a client of a withdrawal of services. Public confidence in the administration of justice depends on the public being able to rely on their lawyer of record. The moving parties were entitled to rely on Mr. Lulic as their lawyer of record. . KingSett Mortgage Corporation v. 30 Roe Investments Corp.
In KingSett Mortgage Corporation v. 30 Roe Investments Corp. (Ont CA, 2023) the Court of Appeal considers removal of solicitors from the litigation record:[1] Blaney McMurtry LLP (“Blaneys”) moved for an order under r. 15.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, seeking to remove the firm as lawyer of record for the Appellant, 30 Roe Investment Corp. (“30 Roe”). I dismissed the motion with reasons to follow. These are the reasons.
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[13] There is relatively sparse law on when the court should exercise its discretion to refuse to take a law firm off the record. The cases focus on the interests of the client: see R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at paras. 49-50, and Todd Family Holdings Inc. v. Gardiner, 2015 ONSC 6590, 127 O.R. (3d) 714. The administration of justice must also be considered: Cunningham, at para. 45.
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