Staltari v. Canada (Attorney General), 2002 FCA 108

Date: 20020315

Docket: A-156-01

OTTAWA, ONTARIO, MARCH 15, 2002

Present:           ROTHSTEIN J.A.

BETWEEN:

                                                            CATHERINE STALTARI,

                                                                                                                                                      Applicant,

                                                                                 and

                                           THE ATTORNEY GENERAL OF CANADA,

                                                                                                                                                  Respondent.

                                                                            ORDER

Marcela Aroca of the law firm of Richler and Tari is removed as solicitor of record in Court files A-153-01, A-154-01, A-155-01, A-156-01, A-157-01, A-159-01. A copy of this order shall be placed on each of the said Court files.

                                                                                                                                      "Marshall Rothstein"             

                                                                                                                                                                  J.A.

Date: 20020315

Docket: A-156-01

Neutral citation: 2002 FCA 108

Present:           ROTHSTEIN J.A.

BETWEEN:

                                                            CATHERINE STALTARI,

                                                                                                                                                      Applicant,

                                                                                 and

                                           THE ATTORNEY GENERAL OF CANADA,

                                                                                                                                                  Respondent.

                                           Dealt with in writing without appearance of parties.

                                     Order delivered at Ottawa, Ontario, on March 15, 2002.

REASONS FOR ORDER BY:                                                                                       ROTHSTEIN J.A.

Date: 20020315

Docket: A-156-01

Neutral citation: 2002 FCA 108

Present:           ROTHSTEIN J.A.

BETWEEN:

                                                            CATHERINE STALTARI,

                                                                                                                                                      Applicant,

                                                                                 and

                                           THE ATTORNEY GENERAL OF CANADA,

                                                                                                                                                  Respondent.

                                                            REASONS FOR ORDER

ROTHSTEIN J.A.

This is a motion by Marcela Aroca of the law firm of Richler and Tari to be removed as solicitor of record in Court files A-153-01, A-154-01, A-155-01, A-156-01, A-157-01 and A-159-01. The applicants in those files oppose the motion.

Put briefly, the motion arises because of a dispute over whether a fee estimate given by Ms. Aroca constitutes a binding commitment to perform services for that amount.

The evidence of Ms. Aroca is that, on February 28, 2001, in a telephone conversation with Carmen Staltari, from whom she had been receiving instructions, she estimated a fee of $5,000 to $5,500 for acting on the six judicial reviews in this Court from decisions of the Tax Court. However, she says she told Mr. Staltari that she would provide him with a "litigation budget" setting out the proposed terms of her retainer. On March 5, 2001, Ms. Aroca filed the judicial review applications in this Court. On April 24, 2001, she wrote Mr. Staltari a detailed letter describing the judicial review process, providing an opinion on outcome, a status of proceedings and required instructions, and a detailed litigation budget totalling $15,350 excluding GST and disbursements. Notwithstanding the detailed budget, she advised that she was prepared to do the six judicial reviews for a flat fee of $10,000 plus GST and disbursements and requested his instructions as to whether he wished to proceed.

In his affidavit, Mr. Staltari says that in the February 28, 2001 telephone conversation, Ms. Aroca stated that the fee for the judicial reviews would be $5,500 and he instructed her to proceed. He emphatically denies the $5,500 figure would be subject to review or change and insists that Ms. Aroca complete the judicial reviews for the agreed upon figure.

There was no cross-examination on the affidavits filed. The parties seem to want the Court, on this motion, to determine whether there was a binding fee agreement for $5,500. However, there are significant gaps in the evidence and there are a number of credibility issues. Without seeing the witnesses and hearing examination and cross-examination, it is impossible for the Court to decide that issue. Nor, in the circumstances of this case, is it necessary.

Rule 125, pursuant to which the motion was brought, does not set out criteria to be considered on a motion to be removed as solicitor of record. However, the jurisprudence indicates that once having accepted a retainer, a lawyer has no absolute right to cease acting for the client. The lawyer must show good cause and give appropriate notice to the client. See, for example, R.v. Gillespie, [2000] M.J. No. 241 per Morse J. at paragraph 5.

Here, the proceedings are at an early stage. Only the judicial review applications have been filed. Notices of status review have been issued and were responded to. By order of Décary J.A. of December 19, 2001, the applicants are allowed four weeks from the date of this order to file their application records. That should be ample time for them to retain new counsel and for counsel to become familiar with the matter and prepare the necessary documents. If it is not, and there are good reasons for a further extension, it may be applied for. Thus, there is no issue as to notice or prejudice to the client.

While a dispute over fees may not normally be good cause for counsel withdrawing from representation, in this case, given the early stage of proceedings and there being no prejudice to the client, I think it is sufficient. Mr. Staltari's insistence on Ms. Aroca continuing is not expressed to be based on any factor other than only to hold her to the $5,500 fee quote he says is binding, and to avoid incurring additional expense in retaining new counsel who will have to become familiar with the matter. However, if, indeed, there was a binding agreement that Ms. Aroca would do the judicial review applications for $5,500, the expenses incurred over $5,500 for the work Ms. Aroca was to do, may well be recoverable from her.

In the circumstances, the motion to remove Marcela Aroca of the law firm of Richler and Tari as solicitor of record in Court files A-153-01, A-154-01, A-155-01, A-156-01, A-157-01 and A-159-01 will be granted. A copy of these reasons shall be placed on each of the said Court files.

                                                                                                                                      "Marshall Rothstein"                   

                                                                                                                                                                  J.A.