Behm v Hansen, 2021 ABQB 701

Court of Queen’s Bench of Alberta Citation: Behm v Hansen, 2021 ABQB 701 Date: 20210902 Docket: 4803 154552 Registry: Edmonton Between: Jennifer Lynne Behm Plaintiff - and - John David Hansen Defendant _______________________________________________________ Endorsement of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A. Introduction [ 1 ] A lawyer seeks permission to withdraw as counsel for a family-law-litigant before completion of the currently-on-hold trial. [ 2 ] For reasons outlined below, I grant that permission. B. Background

[ 3 ] On the status of the proceedings, I first adopt Mr. Smith's synopsis: The trial was originally scheduled October 16 to 18, 2018. The Plaintiff [wife] had concluded [her] case, but there was not sufficient time to complete the trial. The trial continued on May 24, 2019. At that time, the Plaintiff brought an application to compel documents from a third party and sought leave for the Plaintiff to re-open [her] case. The application was successful [ Behm v Hansen , 2019 ABQB 813 ].

Because the third party had apparently not provided the requested documents to the Plaintiff, on January 20, 2020, a decision [ Behm v Hansen , 2020 ABQB 52 ] was released on whether the third party was properly served with the Plaintiff's application to compel documents. As far as I am aware, there has been some communication between the third party and the Plaintiff, but I have not yet received any correspondence from the Plaintiff confirming that the Order against the third party to compel documents has been fulfilled. [ 4 ] I also understand, per Ms.

Simon, that the third party provided some information, that she regards his disclosure as inadequate, that the third party has advised (circa June 2020) that he has no additional information to provide, that she should "deal directly with Mr. Hansen [the defendant]" about any potential further information, and that the trial continues to stand adjourned for pandemic-related reasons. [ 5 ] Per Mr. Smith, the reason for his withdrawal request is "for the most part, financial . My client [Mr. Hansen] is still an undischarged bankrupt and my firm is owed considerable amounts for legal fees since October, 2018.

The amounts owing have continued to accrue since that time, and there seems to be little possibility that the amounts owing will be paid at any time in the foreseeable future." [ 6 ] Ms. Simon advised that she is "not in possession of sufficient facts to take a position on Mr. Smith's application to withdraw." However, she said she was "agreeable to [his] request [per his August 22, 2021 letter] to

schedule a hearing for his application to withdraw" and that "such hearing must take place before we

schedule the trial continuation." She also submitted: During the hearing of the application to withdraw, Mr. Hansen can confirm on the record whether he consents to Mr. Smith's application to withdraw and that he will self-represent for the remainder of the trial. Or, if Mr. Hansen advises that he intends to seek new counsel, then such a consideration will be an important factor in [my] decision regarding Mr. Smith's application to withdraw. Finally, there is a strong possibility that Mr.

Hansen will not attend at this hearing or take further steps in this litigation, and then [I] will have to give some directions as to how to continue the trial without Mr. Hansen's further participation. C. Analysis [ 7 ] For the following reasons, I have concluded that no application is necessary and that, in the circumstances here, Mr. Smith should be permitted to withdraw as counsel for Mr. Hansen. [ 8 ] As recognized by both parties, Rule 2.31 applies.

It states: After a trial date is scheduled, a lawyer of record may not, without the Court's permission, serve a notice of withdrawal as lawyer of record , and any notice of withdrawal that is served without the Court's permission has no effect. [emphasis added] [ 9 ] The Code of Professional Conduct of the Law Society of Alberta is also relevant here. It addresses counsel withdrawals, including unpaid-fees-related withdrawals: Withdrawal from Representation [3.7-1] A lawyer must not withdraw from representation of a client except for good cause and on reasonable notice to the client.

Commentary Although the client has the right to terminate the lawyer-client relationship at will, a lawyer does not enjoy the same freedom of action. Having undertaken the representation of a client, the lawyer should complete the task as ably as possible unless there is justifiable cause for terminating the relationship. It is inappropriate for a lawyer to withdraw on capricious or arbitrary grounds. An essential element of reasonable notice is notification to the client , unless the client cannot be located after reasonable efforts.

No hard and fast rules can be laid down as to what constitutes reasonable notice before withdrawal and how quickly a lawyer may cease acting after notification will depend on all relevant circumstances. When the matter is covered by statutory provisions or the Rules of Court, these will govern . In other situations, the governing principle is that the lawyer should protect the client's interests to the best of the lawyer’s 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.

As a general rule, the client should be given sufficient time to retain and instruct replacement counsel. Nor should withdrawal or an intention to withdraw be permitted to waste court time or prevent other counsel from reallocating time or resources scheduled for the matter in question . See Rule 3.7-6, Manner of Withdrawal. Every effort should be made to ensure that withdrawal occurs at an appropriate time in the proceedings in keeping with the lawyer’s obligations. The court, opposing parties and others directly affected should also be notified of the withdrawal .

Non-payment of fees [3.7-3] If, after reasonable notice, the client fails to provide a retainer or funds on account of disbursements or fees, a lawyer may withdraw unless serious prejudice to the client would result .

Commentary When the lawyer withdraws because the client has not paid the lawyer’s fee, the lawyer should ensure that there is sufficient time for the client to obtain the services of another lawyer and for that other lawyer to prepare adequately for trial. [ 10 ] The key authority on counsel withdrawals is R v Cunningham , 2010 SCC 10 , where the Supreme Court offered the following synopsis: The court’s exercise of discretion to decide counsel’s application for withdrawal should be guided by the following principles.

If counsel seeks to withdraw far enough in advance of any scheduled proceedings and an adjournment will not be necessary, then the court should allow the withdrawal. In this situation, there is no need for the court to enquire into counsel’s reasons for seeking to withdraw or require counsel to continue to act. Assuming that timing is an issue, the court is entitled to enquire further . Counsel may reveal that he or she seeks to withdraw for ethical reasons, non-payment of fees, or another specific reason (e.g. workload of counsel) if solicitor-client privilege is not engaged. ...

If withdrawal is sought because of non-payment of legal fees [i.e. where timing is an issue], the court may exercise its discretion to refuse counsel’s request. The court’s order refusing counsel’s request to withdraw may be enforced by the court’s contempt power ( C. (D.D.) , at p. 327).

In exercising its discretion on the withdrawal request, the court should consider the following non-exhaustive list of factors: · whether it is feasible for the accused to represent himself or herself; · other means of obtaining representation; · impact on the accused from delay in proceedings, particularly if the accused is in custody; · conduct of counsel, e.g. if counsel gave reasonable notice to the accused to allow the accused to seek other means of representation, or if counsel sought leave of the court to withdraw at the earliest possible time; · impact on the Crown and any co-accused; · impact on complainants, witnesses and jurors; · fairness to defence counsel, including consideration of the expected length and complexity of the proceedings; · the history of the proceedings, e.g. if the accused has changed lawyers repeatedly.

As these factors are all independent of the solicitor-client relationship, there is no risk of violating solicitor-client privilege when engaging in this analysis. On the basis of these factors, the court must determine whether allowing withdrawal would cause serious harm to the administration of justice.

If the answer is yes, withdrawal may be refused. [paras 46-48 and 50] [emphasis added] [ 11 ] In Langille v Nova Scotia (Attorney General), 2017 NSCA 12 , Beveridge JA (in chambers) held that the Cunningham principles apply equally in a civil-litigation (i.e. non-criminal) setting : While there may well be numerous reasons to distinguish between criminal and civil proceedings, no one has suggested that the basic principles that guide counsel withdrawal would be more stringent or markedly different for civil cases.

There is no suggestion that the motions judge erred in law in using the legal principles and guidance in Cunningham . [para 33] [emphasis added] [For the same holding, see also Chan v Abdo , 2013 ONSC 7837 (Rady J.) at para 7] [ 12 ] In Fitzpatrick v College of Physical Therapists of Alberta , 2020 ABCA 88 , Hughes JA (in chambers) applied a Cunningham analysis to a counsel-withdrawal request at the Court of Appeal stage: In assessing Mr. Frenken’s application [to withdraw as counsel], I consider the following: 1) Ms. Fitzpatrick and her company had reasonable notice of Mr.

Frenken’s intention to withdraw should the outstanding bill not be paid. 2) It would be feasible for Ms. Fitzpatrick to represent herself as the appellants’ factum has been filed. I note Ms. Fitzpatrick is of the view that she does not have the ability to make oral submissions. 3) Rule 2.22 prohibits Ms. Fitzpatrick from acting on behalf of the corporation. 4) Ms. Fitzpatrick may have the financial means to obtain other counsel . Indeed, Mr. Frenken was contacted by a lawyer the day before this application on behalf of Ms. Fitzpatrick. 5) Any prejudice to the respondents may be remedied by a costs order .

All these factors weigh in favour of granting the application. The last factor to consider is harm to the administration of justice should the appeal not proceed on April 9, 2020 . This factor weighs against the granting of the application in that the time this appeal is currently scheduled for, may not be able to be used by another appeal. All courts in this Province face increasing lead times for matters to be heard. Thus, granting the application, which will have the likely result of an adjournment and the time scheduled will likely go unfilled, will harm the administration of justice.

When I balance the factors in favour of granting the application as opposed to denying the application, I find that on balance, the application should be granted. Accordingly, Mr. Frenken is granted permission to withdraw as counsel. [paras 9-12] [emphasis added] Application of those principles here [ 13 ] In the present case, the critical factor is the already-adjourned status of the trial , which has stood dormant (effectively) since late-winter or spring 2020. [ 14 ] The delay to date was not caused by Mr.

Smith's request to withdraw, and that request, at this trial-dormant stage, is unlikely to cause any material incremental delay . We are presumably not in a position to resume the trial immediately or in the very short term, with (potentially) further document production from Ms. Behm (of the documents provided to her by the third party) and by Mr. Hansen required first. [ 15 ] Further, if no order has been obtained under R. 4.34 ("Stay of proceedings on transfer or transmission of interest"), which applies (among other circumstances) where a party (as Mr.

Hansen here) becomes bankrupt, the action is currently stayed in any case . [ 16 ] As well, Mr. Smith first raised the subject of withdrawal about five months ago (late March 2021), meaning that Mr. Hansen has had more than ample time to square up or otherwise make arrangements on his outstanding fees i.e. to the extent possible, in light of his financial circumstances. [ 17 ] As far as I can tell, Mr. Smith has kept Mr. Hansen abreast, via the bankruptcy trustee, of his withdrawal request (at minimum, both as of March and over the last month or so). [ 18 ] Whether or not Mr.

Hansen will be able to retain other counsel (perhaps unlikely, in light of his limited means), based on my perception of him as a witness in the trial to date he is more-than-sufficiently intelligent and industrious to act for himself i.e. as required, to complete the final segment of the trial, including argument . [ 19 ] For these reasons, Mr. Smith has my permission, under R. 2.31, to serve a notice of withdrawal as lawyer of record for Mr. Hansen. Heard by way of Desk Application (with materials received March 26 and August 22 and 24, 2021) Dated at Edmonton, Alberta this 1 st day of September, 2021 . M. J.

Lema J.C.Q.B.A. Appearances: Mimi Simon Ozerna Family Law for the Plaintiff Bradley J. Smith

Verhaeghe Law Office for the Defendant