R. v. Cunningham, 2021 NLCA 32

Peter Austin (applicant/appellant) v. Darlene Dunne (respondent) (21/30) Indexed As: Austin v. Dunne 2021 NLCA 32 6 C.A.N.L.R. 654 Court of Appeal of Newfoundland and Labrador O’Brien J.A. May 18, 2021

Summary: As part of an ongoing civil dispute between the parties, Mr. Austin and Ms. Dunne signed a consent order. Mr. Austin filed a notice of appeal seeking to have the consent order set aside on the basis that he lacked true consent due to duress and that he failed to appreciate the binding nature of the order. As required by rule 34(2) of the Court of Appeal Rules , Mr. Austin also filed an application for leave to appeal the consent order. Subsequently, Mr. Austin’s counsel filed an application to withdraw as counsel of record. Both applications were dealt with at the hearing.

Held: Application to withdraw as counsel of record granted; application for leave to appeal consent order adjourned. O’Brien J.A.: The application to withdraw as counsel of record was granted. Affidavits filed by Mr. Austin’s counsel indicated that the solicitor-client relationship had been irrevocably damaged such that it would not be in the best interest of either Mr. Austin or his counsel that the relationship continue (paragraphs 6-12). The application for leave to appeal the consent order was adjourned to afford Mr. Austin time to retain new counsel.

Since the notice of appeal was filed beyond the 10-day filing deadline for uncompleted matters, Mr. Austin was also instructed to file an application for an extension of time to file a notice of appeal. That application will be heard at the same time as the application for leave to appeal the consent order (paragraphs 13-15). Cases cited: Brace v. Canada Customs and Revenue Agency, 2004 NLSCTD 26 R. v. Cunningham, 2010 SCC 10 , [2010] 1 S.C.R. 331 Law Society of Newfoundland v. Fahey, 2000 NFCA 19 Rules considered: Court of Appeal Rules, NLR 38/16, rules 34(2) , 23(2) , 8(2) (

b) and 14 Counsel: Ian Patey, for the applicant/appellant; Johnathan Earle, for the respondent.

The application was heard and decision rendered orally on May 18, 2021 by O’Brien J.A. The following memorandum of disposition was filed on May 28, 2021 by O’Brien J.A. ______________________________________________________________ MEMORANDUM OF DISPOSITION O’Brien J.A.: [ 1 ] Mr. Austin and Ms. Dunne are involved in a civil dispute in the Supreme Court of Newfoundland and Labrador, General Division. Following a settlement conference, in which both parties were represented by counsel, a consent order was filed.

However, the consent order did not end the matter, and a date has been scheduled to continue the litigation in the Supreme Court. [ 2 ] Subsequent to the consent order being filed, Mr. Austin filed a notice of appeal in this Court, indicating that he wished to have the consent order set aside. The notice of appeal states that Mr. Austin “lacked true consent due to duress” and that he “failed to appreciate the binding nature” of the consent order. [ 3 ] Two applications were filed in this Court. [ 4 ] The first application was for leave to appeal the consent order.

Rule 34(2) of the Court of Appeal Rules , NLR 38/16 , states that where the order under appeal is a consent order, leave to appeal is required, and an application for leave is to be filed along with the notice of appeal. That application was filed. [ 5 ] The second application was made by Mr. Austin’s counsel, Mr. Patey, seeking leave to withdraw as counsel of record in this Court. Rule 23(2) of the Court of Appeal Rules provides that, upon application, the Court may grant a solicitor leave to “cease acting for a party” in proceedings before this Court. [ 6 ] The Court first considered Mr.

Patey’s application to cease acting for Mr. Austin in this matter. Mr. Patey provided two affidavits in support of his application, one filed with the application and a more detailed affidavit, filed subsequently. The affidavits provided context and information that the Court could consider with respect to the application to cease acting as counsel of record, while maintaining solicitor-client confidence and not disclosing information that could be subject to solicitor-client privilege (see , for example, Brace v. Canada Customs and Revenue Agency , 2004 NLSCTD 26 ) [ 7 ] The affidavits set out Mr.

Patey’s belief that there had been a “fundamental breakdown in the solicitor-client relationship”, such that he could no longer continue to provide representation in this matter. [ 8 ] In R. v. Cunningham , 2010 SCC 10 , [2010] 1 S.C.R. 331 , the Supreme Court of Canada outlined various considerations respecting when it is appropriate for a court to grant, or refuse, an application to withdraw as counsel of record.

In Cunningham , the Court clearly indicated that there is no unfettered right to withdraw as counsel of record, stating at paragraph 9: “[t]he fiduciary nature of the solicitor-client relationship means that counsel is constrained in his or her ability to withdraw from a case once he or she has chosen to represent an accused.” [ 9 ] However the Court also recognized that withdrawal is appropriate, and indeed necessary, in certain circumstances. The Court provided some guiding principles as to how discretion should be exercised in this context.

For example, the Court noted, at paragraph 48, that there may be various reasons, including “ethical reasons”, underlying a request to withdraw: … 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. Counsel seeking to withdraw for ethical reasons means that an issue has arisen in the solicitor-client relationship where it is now impossible for counsel to continue in good conscience to represent the accused.

Counsel may cite “ethical reasons” as the reason for withdrawal if, for example, … the accused refuses to accept counsel’s advice on an important trial issue (see, e.g., Law Society of Upper Canada, r. 2.09(2); Law Society of Alberta, c. 14, r. 1; Law Society of British Columbia, c. 10, r. 2). … [ 10 ] In the present case, while the precise details and particulars of how the solicitor-client relationship eroded are matters known to Mr. Patey and Mr.

Austin, and remain in the realm of solicitor-client confidence, it is clear that the relationship has been irrevocably damaged such that it would not appear to be in the best interests of either Mr. Austin or Mr. Patey that it continue. [ 11 ] Mr. Patey made submissions on the application and provided further information and context regarding his request to withdraw. The Court considered the application and affidavits and heard from Mr. Austin and Mr. Earle, counsel for Ms. Dunne in this matter, regarding their positions respecting the application. Mr. Austin did not oppose the application and Mr.

Earle, on behalf of his client, took no position. [ 12 ] In light of the circumstances, and having considered the materials filed with the Court, the parties’ submissions and the guidance provided by the Supreme Court in Cunningham , it was determined that Mr. Patey should be granted leave to cease acting for Mr. Austin in this matter.

[ 13 ] The second application involved Mr. Austin’s request for leave to appeal the consent order, pursuant to rule 34(2) . As Mr. Austin’s former counsel was no longer representing him, he requested that the application for leave to appeal the consent order be adjourned, so that he might seek new counsel before proceeding. This request was not opposed by Mr. Earle, and the application was adjourned. The Court observed that the application for leave to appeal the consent order was accompanied only by an affidavit from Mr. Patey, and not directly from Mr. Austin. As an affidavit from Mr.

Austin would be appropriate in this context, Mr. Austin was requested to file an affidavit with the Court. [ 14 ] Further, the Court noted that the appeal related to an uncompleted matter, as the litigation is ongoing in the Supreme Court. Rule 8(2) (

b) of the Court of Appeal Rules states that a notice of appeal in an uncompleted matter is to be filed within 10 days after the order appealed from has been filed. In this case, the notice of appeal was filed in this Court beyond the 10 day filing deadline. Accordingly, Mr. Austin will need to make an additional application under rule 14 , seeking leave to extend the time for filing the notice of appeal. The parties were reminded of the factors to be considered in an application for leave to extend the time for filing a notice of appeal, as discussed by this Court in Law Society of Newfoundland v.

Fahey , 2000 NFCA 19 , and subsequent cases. [ 15 ] The application for leave to extend time for filing the notice of appeal is to be heard at the same time as the adjourned application for leave to appeal the consent order. Filing deadlines were set for Mr. Austin to file the application and affidavit to extend the deadline, and to file the affidavit with respect to the application for leave to appeal the consent order, and for Ms. Dunne to file any materials in response. Application granted; application for leave to appeal adjourned.