Date: 20010601
Docket: T-238-00
Neutral Citation: 2001 FCT 578
MONTRÉAL, QUEBEC, THE 1st DAY OF JUNE, 2001
Present: Mr. RICHARD MORNEAU, PROTHONOTARY
Between:
WEIGHT WATCHERS INTERNATIONAL, INC.
Plaintiff
AND
VALE PRINTING LIMITED
and
THE CANADIAN INSTITUTE OF CULTURAL AFFAIRS
(carrying on business as ICA CANADA)
and
ONTARIOSTAR AIRCRAFT COMPANY INCORPORATED
and
MANFRED HUMPHRIES
Defendants
ORDER
This motion by the defendants is dismissed with costs.
Richard Morneau
Prothonotary
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20010601
Docket: T-238-00
Neutral Citation: 2001 FCT 578
Between:
WEIGHT WATCHERS INTERNATIONAL, INC.
Plaintiff
AND
VALE PRINTING LIMITED
and
THE CANADIAN INSTITUTE OF CULTURAL AFFAIRS
(carrying on business as ICA CANADA)
and
ONTARIOSTAR AIRCRAFT COMPANY INCORPORATED
and
MANFRED HUMPHRIES
Defendants
REASONS FOR ORDER
Mr. RICHARD MORNEAU, PROTHONOTARY:
[1] This is a motion by the defendants, essentially for the purposes of obtaining the removal of the plaintiff's solicitors from the case, or an examination of one of the plaintiff's solicitors (Mr. Robbins), or the striking out of paragraphs in the amended statement of claim of September 27, 2000 (the statement of claim) or in an affidavit filed by Mr. Robbins in the context of an application for an interlocutory injunction. It is apparent, however, that it is the removal of Mr. Robbins or his firm from the case that is the focus of the defendants' motion.
[2] I think it is appropriate to begin my analysis by referring to the current state of the law on the issue of forcing the removal of counsel acting in a case.
[3] Here is what was said to this effect in Imperial Oil Ltd. v. Lubrizol Corp. (1999), 86 C.P.R. (3d) 331, at page 336, where Nadon J. of this Court refers to the comments by the Ontario Divisional Court in Heck v. Royal Bank (1993), 52 C.P.R. (3d) 372:
I believe courts should be reluctant to make what may be premature orders preventing solicitors from continuing to act. In view of the expense of litigation and the enormous waste of time and money and the substantial delay which can result from an order removing solicitors, courts should do so only in clear cases. I adopt the approach taken on this point in Carlson v. Loraas Disposal Services Ltd. (1988), 30 C.P.C. (2d) 181 (Sask. Q.B.), at p. 188.
As discussed in the Carlson decision, an application to remove counsel can be made to the trial judge when it is certain there is a problem. In this case Mr. Green may, or may not be, subpoenaed to testify. Concessions or admissions may be made which will obviate the need to call him as a witness. The evidence he could give may be readily obtainable from other witnesses. As issues are developed, or resolved during trial, his evidence may not be required at all. A trial judge will be in a much better position to determine if his firm should be disqualified.
I do not accept the argument that when a lawyer is compelled to testify against the "other" side in a lawsuit the lawyer's firm must always be prevented from acting in the lawsuit. There are a variety of scenarios which might develop at, or during, trial.
[Emphasis added]
[4] That decision also calls for the application of a flexible test for the purpose of determining any motion to remove. Earlier, in International Business Machines Corp. v. Printech Ribbons Inc. (1993), 52 C.P.R. (3d) 48, at page 59, Nadon J. had stated:
In my view, the grounds alleged by an applicant who is seeking, at an early stage in the proceedings, to have an entire law firm removed as counsel of record will not be "serious" unless the Court is satisfied that the attorney from that firm is certain to testify or is very likely to testify. Failing that, it is my view that such an application should not be granted.
[5] In the case at bar, notwithstanding the defendants' submissions, I consider that for the purposes of this motion the case is still at a preliminary stage; the examinations for discovery have not begun.
[6] For the reasons that follow, I am not persuaded that I have before me a case in which it is clear that counsel must be removed or that some paragraphs must be struck out, either in the statement of claim or in Mr. Robbins' affidavit.
[7] Presenting his motion, counsel for the defendants insisted on three aspects of the case that involve some documents and that would, he said, mean that his motion should be allowed in whole or in part.
[8] He referred, first, to an email message dated June 30, 2000 that he allegedly sent to Mr. Robbins in which he said his client was preparing to take some action as of July 4, 2000. This email should serve as evidence that the defendants had at all times acted with transparency and honesty in regard to the plaintiff.
[9] The problem, according to the defendants' counsel, lies in the fact that the plaintiff's solicitors, through their proceedings, do not acknowledge having received this email.
[10] The defendants therefore wish to examine Mr. Robbins to this effect and for that reason -- as for the other reasons for which they want to examine him -- they are asking that he be removed as counsel on the case.
[11] It seems to me that it is far from certain that Mr. Robbins must be examined either on discovery or on the merits in order to establish whether the plaintiff got wind of the intention announced by the defendants' solicitor in this email. Other methods may be used by the defendants to discover this information, which in any case appears to me, given the wording of paragraph 31 of the statement of claim, to be of quite limited value in the more general argument to be held on the merits.
[12] In the first place, under Rule 255 of the Federal Court Rules, 1998 (the Rules), the defendants could send the plaintiff a formal notice to admit the authenticity of the email and the truth of facts surrounding the knowledge by the plaintiff of this email.
[13] Secondly, the plaintiff's examination has not occurred. In theory, much speculation may be entertained concerning the possible objections that may be made by the plaintiff in that regard. However, in practice it is possible that a lot of "concessions or admissions", as it was put in Imperial Oil, may be made that will satisfy the defendants.
[14] Furthermore, the Web site targeted by the email is apparently accessible by the general public. This means that the plaintiff itself can answer some questions in that regard.
[15] The other two aspects of the case are in connection with some documents that are cited in the statement of claim or the statement of defence. However, since these documents do not appear to be listed in the plaintiff's affidavit of documents, the defendants perceive some difficulty and would like to examine Mr. Robbins on them since he has attached them to an affidavit.
[16] It must first be established that this affidavit was made in support of an application for an interlocutory injunction presented by the plaintiff.
[17] The fact that Mr. Robbins made an affidavit and that he or a colleague in the same firm pleaded on the motion for an injunction are facts that could only have some relevance in the context of that motion, which led to a decision of this Court on June 2, 2000. In fact, it appears that this situation was at that time drawn to the Court's attention. However, in the circumstances, the Court does not appear to have noted any difficulty cited in this regard. It happens, in fact, that the Court refers more than once in its decision to Mr. Robbins' affidavit.
[18] All the circumstances surrounding that injunction application are now res judicata. Moreover, Mr. Robbins' affidavit cannot be regarded as being made in support of the substantive issues to come in the action since the plaintiff's evidence will have to be made by witnesses testifying viva voce. Moreover, the plaintiff's counsel confirmed in Court that at this point he does not intend to use Mr. Robbins' testimony or affidavit in the hearing on the merits. It is at least uncertain, therefore, that Mr. Robbins will testify at the hearing on the merits.
[19] Specifically, counsel for the defendants referred to a letter dated November 29, 1999 that was attached by Mr. Robbins to his affidavit as exhibit "C". This letter was sent by Mr. Donald B. Gray, then the solicitor for ICA Canada, to Mr. Bereskin, a colleague of Mr. Robbins.
[20] As mentioned earlier, Mr. Robbins was associated with the production of this letter for the purposes of the injunction. That stage is over. I do not see why we should now force Mr. Robbins or his firm to withdraw from the case on account of a letter he did not write but which was written by the defendant. Its possible introduction as evidence will not necessarily occur through the testimony of Mr. Robbins or Mr. Bereskin.
[21] As to the third and last aspect, the two documents referred to as the Synnott letters, they were included in Mr. Robbins' affidavit and what was said earlier as to the past context of this affidavit applies here as well. These two letters are divided between schedules A and B.
[22] Furthermore, in regard to schedule A, it does not present any significant connection with Mr. Robbins (other than the fact that he produced it in the context of the injunction application).
[23] For these reasons, it is necessary to reject all of the specific remedies raised in the defendants' motion, namely:
[Translation]
1. An Order of this Honourable Court declaring Mr. Mark Robbins and his firm, Bereskin & Parr, disqualified to represent the Respondent;
2. An Order of this Honourable Court ordering Mr. Mark Robbins to submit to examination by counsel for the Applicants; the whole in accordance with Rules 82, 83, 97 and 238 of the Federal Court Rules;
3. Subsidiarily and in the alternative, an Order of this Honourable Court declaring Mr. Mark L. Robbins disqualified, ordering the establishment of a Chinese wall within the Bereskin & Parr law firm, and ordering Mr. Mark Robbins to submit to examination by counsel for the Applicants;
4. Subsidiarily and in the alternative, if the solicitors Mr. Robbins and/or Bereskin & Parr were to remain on the record, an Order of this Honourable Court rejecting the affidavits signed by Mr. Mark Robbins on February 7 and 29, 2000, and any schedule or appendix attached thereto;
5. Subsidiarily and in the alternative, if the solicitors Mr. Robbins and/or Bereskin & Parr were to remain on the record, an Order of this Honourable Court ordering that paragraphs 8, 26, 31, 36, 37, 38, 39 and 40 of the Amended Statement of Claim dated September 27, 2000 be struck out, in accordance with Rule 221 of the Federal Court Rules;
[24] An order stating that this motion of the defendants is dismissed with costs accompanies these reasons.
Richard Morneau
Prothonotary
MONTRÉAL, QUEBEC
June 1, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Federal Court of Canada
Trial Division
Date: 20010601
Docket: T-238-00
Between:
WEIGHT WATCHERS INTERNATIONAL, INC.
Plaintiff
AND
VALE PRINTING LIMITED
and
THE CANADIAN INSTITUTE OF CULTURAL AFFAIRS
(carrying on business as ICA CANADA)
and
ONTARIOSTAR AIRCRAFT COMPANY INCORPORATED
and
MANFRED HUMPHRIES
Defendants
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-238-00
STYLE: WEIGHT WATCHERS INTERNATIONAL, INC.
Plaintiff
AND
VALE PRINTING LIMITED
and
THE CANADIAN INSTITUTE OF CULTURAL AFFAIRS
(carrying on business as ICA CANADA)
and
ONTARIOSTAR AIRCRAFT COMPANY INCORPORATED
and
MANFRED HUMPHRIES
Defendants
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 3, 2001
REASONS FOR ORDER OF MR. RICHARD MORNEAU, PROTHONOTARY
DATED: June 1, 2001
APPEARANCES:
Michael E. Charles for the plaintiff
Ali T. Argun for the defendants
SOLICITORS OF RECORD:
Bereskin & Parr for the plaintiff
Toronto, Ontario
Brouillette Charpentier Fortin for the defendants
Montréal, Quebec