Date:
20060517
Dockets:
IMM-4866-05 and IMM-7355-05
Citation:
2006 FC 613
Vancouver, British Columbia, May 17,
2006
PRESENT: MR. JUSTICE BLAIS
BETWEEN:
BACHAN
SINGH, SOGI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application by the
applicant’s counsel to cease representing him.
[2] Counsel states in her notice of
motion, her affidavit and her written submissions that:
[translation]
The applicant’s attorney informed the applicant that she could no longer
continue to defend his interests in this Court in accordance with her
obligations owing to a conflict of interest giving rise to a disagreement.
[3] It is common
practice that if an attorney finds himself in a situation of “conflict of
interest giving rise to a disagreement”, he must so inform his client forthwith
and possibly be given leave to be removed as solicitor of record.
[4] It is also
common practice, in such circumstances, to inform the Court of the facts which
are the source of the conflict of interest, in order to determine whether other
persons related to the case may be affected by the conflict, or by a possible
decision to authorize the removal.
[5] The applicant’s
counsel adds, in her affidavit, that she made this decision on May 4, 2006, two
days after consenting to an order of this Court dated May 2, 2006, confirming
that the hearing on the merits of the application would be held on June 1,
2006, the day after the date initially scheduled, in order to complete the
hearing of the motion for non-disclosure, which itself will be heard on May 31,
2006.
[6] The applicant’s
counsel informs the Court that she has consulted [translation] “the legal advisor of the Barreau du Québec”
concerning her decision to be removed.
[7] However, she is
unable to say more about her discussions either with the legal advisor or with
her client.
[8] It must be
conceded that, for a hearing on the merits that is to be held in two weeks,
this is a motion that is tardy and the grounds in support thereof remain
secret.
[9] Although a
litigant’s right to change lawyers or to want to be represented alone is an
inalienable right, an attorney cannot cease to act for him without obtaining
the Court’s approval.
[10] The courts will
be more reluctant to allow a motion for removal of solicitor of record if there
is little time left before the hearing.
[11] What is the
situation in this case? The two decisions were delivered: one on July 26, 2005
and the second on the constitutional questions on November 23, 2005; the
applications for leave were filed, respectively, on August 10, 2005 in relation
to docket IMM-4866-05 and on December 8, 2005 in relation to docket
IMM-7355-05. The decisions granting the application for leave were delivered,
respectively, on December 21, 2005 in relation to docket IMM-4866-05 and on
March 15, 2006 in relation to docket IMM-7355-05.
[12] The applicant
has already filed all of his relevant documents in both cases, on
September 23, 2005 (IMM-4866-05) and on January 25, 2006 (IMM-7355-05),
and a further memorandum on the constitutional questions, covering both cases,
on April 3, 2006, and has already informed the Court that he did not intend to
file further documents before the hearing.
[13] I thus find that
the record has been prepared and complete for several months, and that the date
of hearing for the hearing on the merits of both applications for judicial
review has likewise been known for several months.
[14] This is a
judicial review hearing with oral submissions on written documents. All of the
documents have long been filed. I note that the documents on the constitutional
questions were already largely addressed at the hearing held in April 2006.
[15] Applicant’s
counsel seems to suggest in her oral submissions that it is the usual procedure
in Quebec to grant such motions without reviewing the underlying grounds,
basing her argument on the Code of Ethics of the Barreau du Québec.
[16] I do not accept
this argument. In fact, the Code of Ethics of Advocates contains some
explicit provisions concerning the possibility of ceasing to act for a party:
Code of Ethics of Advocates
3.02.09. An advocate shall cease to
represent the client at the latter’s request or upon the termination of the
contract for professional services.
3.03.04. Unless it is at an inopportune
time, an advocate may, for serious reasons, cease representing the client,
provided he does everything which is immediately necessary to prevent a loss.
The following shall, in particular, constitute
serious reasons:
(a) loss of the client’s confidence;
(b) the fact that he has been deceived by the client or
his failure to co-operate;
(c) inducement by the client to perform illegal, unfair,
immoral or fraudulent acts;
(d) persistence by the client to continue a futile or
vexatious proceeding;
(e) the fact that the advocate is placed in a situation of
conflict of interest or in a circumstance whereby his professional independence
could be called in question;
(f) refusal by the client to acknowledge an obligation
respecting costs, disbursements and fees or, after reasonable notice, to make
to the advocate provision therefor.
3.06.08. To decide any question relating
to a conflict of interest, consideration must be given to the higher interests
of justice, the explicit or implicit consent of the parties, the extent of
prejudice for each of the parties, the time elapsed since the origin of the
situation that could give rise to the conflict, as well as the good faith of
the parties.
3.06.10. An advocate who withdraws from a
file because of a conflict of interest shall take the necessary conservatory
measures to spare the client serious and foreseeable prejudice.
[17] In Miron v.
Procréa Biosciences inc., [2004] J.Q. No. 2976, the Quebec Superior Court
reviews in detail the law applicable in this case on motions for removal, in
paragraphs 8 to 11:
[translation]
Article 249 of the Code of Civil
Procedure, which is applicable in this case, reads as follows:
249. An attorney
ad litem who desires to cease representing a party must ask leave of the
court, after notice to such party and to the opposite party.
What are the governing principles? In Sno-Jet
Inc. v. Poirier et al., [1972] R.P. 240 (S.C.), at p. 241, Bernier J. makes
the following comments about this provision:
_______________________________________________________________________
Note 1: [1972] R.P. 240
(C.S.) sp. 241
_______________________________________________________________________
Nowhere,
however, is there any description of the factors that ought to guide the court.
It appears from the context that (contrary to what occurs when there is a
substitution of counsel) the abandonment of his retainer by an attorney ad
litem may harm the proper administration of justice and the adverse party
as a result of the automatic stay of proceedings that follows (art. 248
C.C.P.).
As Mr. Justice
Trahan said in Payne v. Hébert (1934), 36 R.P. 25, [translation] “the courts cannot grant
attorneys ad litem the option of abandoning their retainer after issue
has been joined and the case set down for hearing, and on the very eve of the
day scheduled for that hearing, except in exceptionally serious circumstances
[and] at the courts’ discretion.”
A lack of cooperation
on the part of the client is not a sufficiently serious reason to warrant a
stay of the proceedings once they are at the trial stage. Moreover, the
judgment on the merits will ipso facto terminate the retainer. A client
cannot complain if he loses his case; he can take it out only on himself; on
the other hand, counsel will have fulfilled his retainer if, the requested
leave having been denied him, he made sure to protect the interests of his
client and to argue his case within the limits of the resources then available
to him.
In Lallemand
v. Larocque, [1939] 45 R.L.n.s. 335, Mr. Justice Forest said it had been
very wise to leave full discretion in the court as to the grounds cited by
counsel for one of the parties who wished to cease to represent the plaintiff
at the last moment. He added: [translation]
“The courts have the undisputed right to oversee the revocation and abandonment
of an attorney’s retainer, in order to be able to consider whether the attorney
is not using this delaying procedure to gain time and impede the administration
of justice by paralysing the progress of the judicial process.
A review of the
case suggests that this motion is but another trick to delay the trial.
Apart from the
judgments cited above, the Court refers to Van-Ferlson v. Boudreau,
(1912) 18 R. de J. 216 (Court of Appeal), Rousseau v. Cliche (1913) 44
C.S. 179), Dame Tranchemontagne v. Légaré (1910) 11 R.P. 374 and William
Segal Inc. v. Capri Frocks Inc., [1952] B.R. 308.
More recently, Bachand J. in Investissements
Leduc & Yandle Inc. v. Amsteel Construction Corp., J.E. 91-1212 (C.Q.),
after noting the absence of guidelines for assessing an abandonment of
retainer, referred to those found in section 3.03.04 of the Code of Ethics
of Advocates, which then read as follows, and decided to dismiss the motion
before him:
________________________________________________________________________
Note 2: J.E. 91-1212 (C.Q.)
________________________________________________________________________
3.03.04. Unless
he has sound and reasonable grounds to the contrary, an advocate may not cease
to act for the account of a client. The following shall, in particular,
constitute sound and reasonable grounds:
(a) loss of the
client's confidence;
(b) the fact
that he has been deceived by the client or his failure to co-operate;
(c) inducement
by the client to perform illegal, unfair, immoral or fraudulent acts;
(d) persistence
by the client to continue a futile or vexatious proceeding;
(e) the fact
that the advocate is placed in a situation of conflict of interest or in a
circumstance whereby his professional independence could be called in question;
(f) refusal by
the client to acknowledge an obligation respecting costs, disbursements and
fees or, after reasonable notice, to make to the advocate provision therefor.
Finally, in a judgment where the facts
closely resembled this case, Calais Développements Inc. (Dans l’affaire de
la faillite de), the litigation had dragged on for many years and it was
held that to allow a motion to cease to represent would deeply discredit the
administration of justice and result in serious harm to the parties and the
other litigants.
________________________________________________________________________
Note 3: C.S.M. 500-11-003166-804, February 4, 1999, Guilbault J.A.
________________________________________________________________________
[18] The cases cited
under rule 125 of the Federal Courts Rules are particularly instructive
in regard to the duties imposed on counsel; as discussed at the hearing, the
codes of professional ethics for lawyers are fairly similar from one province
to another. In Balog v. Canada (Minister of Citizenship and Immigration),
[2002] F.C.J. No. 11, Prothonotary Lafrenière of this Court explained at
paragraphs 5 and 6:
In addition, Rule 2.09(1) of the Rules of
Professional Conduct of Ontario provides that a lawyer shall not withdraw
from representation of a client except for good cause. A review of the Court
file reveals that the Applicants’ Record, which includes a 29 page memorandum
of argument, was filed back on April 11, 2001. There is simply no evidence
that any further instructions are required by counsel from the clients.
Further, the date of the hearing of the application for judicial review has
been known since September 17, 2001. One is left to wonder why counsel waited
until ten days before the hearing to bring this motion.
The governing principle set out in a
commentary to Rule 2.09 is that a lawyer should protect his client’s interests
to the best of his ability and should not desert the client at a critical stage
of a matter or at a time when withdrawal would put the client in a position of
disadvantage or peril. The Court also has an interest in ensuring that last
minute motions not interfere with the orderly hearing of scheduled matters. The
problem in securing a retainer is certainly unfortunate for counsel, however it
should have been addressed earlier and cannot now serve as a justification for
withdrawal.
[19] It is also clear
from the record that it is the advocate and not the client who has initiated
the withdrawal process; in this regard, Mr. Justice Konrad W. von Finckenstein
of this Court explains in Didone v. Sakno, [2003] F.C.J. No. 1482, at
paragraph 5:
Where the client expresses confidence in his
solicitor the latter has no right to abandon his clients on a flimsy pretext,
see Carby Samuels v. Canada (1993), 168 N.R. 59. In this case the vague
allegation of “a break down of the solicitor client relationship”, one week
before trial, would seem to fall into that category.
[20] McKeown J., also
of the Federal Court, has likewise reviewed the cases in Canada (Attorney
General) v. Canada (Information Commissioner), [2002] F.C.J. No. 225. He
states, at paragraphs 34 and 40:
It is clear that when the motion was made to
remove the solicitor of record, the motives of the applicant may be examined
and the Court must consider all of the circumstances of the case. Granger J.
stated in Moffat v. Wetstein (1996), 29 O.R. (3d) 371 at page 408:
Although it may
appear obvious, where a motion is brought which appeals to the court’s
equitable jurisdiction to remove a solicitor of record, the relief should only
be granted where the motion has proceeded on the basis of a genuine concern
with respect to the merits of the alleged conflict. In other words, where a
motion to remove a solicitor of record is brought for the purpose of
frustrating or delaying one’s opponent or to otherwise secure a tactical
advantage in the course of litigation, the motion should be dismissed.
Delay is also to be considered as a factor
which can be considered by a court in determining whether or not to exercise
its discretion to remove a solicitor of record. See: Baumgartner v.
Baumgartner (1995), 122 D.L.R. (4th) 542 at p. 549
(B.C.C.A.).
[21] A review of the
available case-law reveals one constant feature: when a lawyer wishes to cease
representation in a case, he must state grounds for doing so, and those grounds
must be reviewed by the Court.
[22] In this case,
the Court is totally left in the dark and, at the risk of repeating myself,
with only two weeks to go before the hearing on the merits in the case.
[23] I have no
hesitation, therefore, in ruling that this application for removal must be
dismissed, and in ruling that counsel continues to be retained in this matter.
ORDER
THE COURT
ORDERS that:
1. The motion for removal of solicitor
of record be dismissed;
2. The hearing of the motion for
non-disclosure and the hearing on the merits of the two applications for judicial
review will be held at the dates and times scheduled.
“Pierre Blais”
Certified true
translation
François Brunet,
LLB, BCL
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