Andrade v. Andrade, 2011 ONSC 1982

CITATION: Andrade v. Andrade, 2011 ONSC 1982 Andrade v. Andrade Court File No. CV-08-359873 J. Longo, counsel for the plaintiff D. Lees, counsel for the defendant REASONS FOR DECISION These reasons relate to two motions: a motion by the defendants seeking an order removing Aird & Berlis as lawyer of record for the plaintiff and a motion by the plaintiff for an order striking the defence and counterclaim or alternatively, an order that the defendants attend for examinations.

For reasons that follow, I dismiss the defendants’ motion to remove Aird & Berlis and I grant the plaintiff’s motion that the defendants deliver further and better affidavits of documents, if they have not already done so, disclosing the matters noted below. This shall be done in advance of the discoveries now scheduled to be completed by July 15, 2011. Costs are reserved and may proceed by written submissions if the issue cannot be otherwise resolved, within 30 days.

The Background Facts This action relates to a dispute concerning ownership of property known municipally as 510 Crawford Street, Toronto (the “property”). In 2008, the plaintiff brought an application for a declaration that she was the beneficial half owner of the property and that the defendant, Henrique Andrade (“Henrique”) holds the property in trust for her. The plaintiff is the sister in law of Henrique and the daughter in law of the defendant, Luisa Andrade (“Luisa”). The plaintiff is an employee of Aird & Berlis and works as a hostess.

Her husband (the brother of Henrique and the son of Luisa), Joseph Andrade (“Jose”), was quite ill in January 2007. An associate of Aird & Berlis, Lorna Schoenroth (“Ms. Schoenroth”) met with the plaintiff to discuss the preparation of a will for Jose and in fact, Ms. Schoenroth did prepare a will for Jose. Ms. Schoenroth arranged for her assistant and a law clerk to attend at hospital to meet Jose in March 2007 to witness the execution of his will.

These witnesses explained to Jose that his estate would be left to the plaintiff, that the plaintiff would be his attorney and they asked whether that reflected his wishes. Jose confirmed as such and he executed the will. He later died on March 19, 2007. There is no dispute that the will executed is valid and that the plaintiff would take all that Jose had on the date of his death. Ms. Schoenroth deposed that she had not met Jose at all, that she took all instructions from the plaintiff concerning Jose’s will, that she did not consider Jose her client and that she considered the plaintiff her client. All of Ms.

Schoenroth’s notes have been produced by the plaintiff. Ms.Schoenroth’s assistant and the law clerk (Ms. Rock and Ms. Cheng) also deposed as to the steps that they took in the execution of the will. They did not communicate with Jose as to his assets and in particular, as to the property or his interest therein. The dispute between the parties arose following Jose’s death. The plaintiff took the position that she is a half owner of the property, having inherited it from Jose following Jose’s death. In contrast, Henrique claims that he and Jose held the property in trust for Luisa.

In the action, the plaintiff seeks an accounting of the revenue and expenses associated with the property and seeks an order to sell the property.

The Removal Motion The defendants submit that Aird & Berlis must be removed as lawyers of record because they, or their staff, will be required to testify at trial and give evidence on a contentious issue and because Aird & Berlis is in a conflict of interest (as it represents the plaintiff and Jose, who are adverse). In my view, these submissions are misguided and I do not accept them. Consequently, the defendants’ motion must be dismissed.

I have no hesitation in accepting the propositions of law that the defendants advance in support of their motion, that a lawyer who may be called to testify on a crucial issue ought not act as lawyer of record. However, I disagree that any member or employee of Aird & Berlis will be required to testify on a crucial issue, as submitted by the defendants. The property in question was acquired in 1997 by Henrique and Jose as joint tenants. The material time in determining whether the property was acquired in trust for Luisa is 1997, when the property was acquired.

It is clear that Aird & Berlis was not involved in the acquisition of the property in 1997. As well, it is clear from the evidence on the motion that no one from Aird & Berlis spoke to Jose about the property prior to his death. Ms. Rock was cross examined and she indicated that she had no discussions with the plaintiff or Jose about the property (See Q 46). Ms. Cheng was cross examined and she indicated that she did not have any discussion with Jose about his assets (see Qs.24, 27). Although the record is clear that Ms.

Schoenroth did speak to the plaintiff about the property, Ms, Schoenroth had no specific recollection of such discussions (see Qs. 187 and 194). I cannot conclude that Ms. Schoenroth’s testimony is crucial given her lack of recollection but more importantly, given that the plaintiff herself will be and is available to testify as to that discussion. Ms. Schoenroth’s testimony is likely inadmissible as it is hearsay.

I am unable to conclude that any member or employee of Aird & Berlis (save the plaintiff) will be required to give testimony as to a crucial issue in the action, being the ownership of the property at the trial of this action. As to whether Aird & Berlis is in a conflict of interest, I find no merit in this submission. I have reviewed the material filed by the defendants and considered their oral submissions carefully. Regrettably, the nature of the alleged conflict is not clear.

If the nature of the conflict arises from the possibility that Aird & Berlis, or its members or employees, might be necessary witnesses, I have addressed that issue above. If there is a conflict that arises from representing Jose as well as the plaintiff, it is my conclusion that their interests are not in conflict. Rather, their interests are identical. Whatever interest Jose has in relation to the property is identical to that of the plaintiff, as she derives her interest through Jose as a result of his will. As mentioned above, there is no dispute as to the validity of Jose’s will.

Jose’s and the plaintiff’s interests are aligned. I disagree with Ms. Schoenroth’s position that Jose was not a client of Aird & Berlis. In my view, he must have been, as Aird & Berlis prepared his will. However, that fact alone does not place Aird & Berlis in a conflict that requires their removal as lawyers of record. There can be no other conflict discernable on the evidence or in contemplation. The defendants do not assert any misconduct or wrongdoing on the part of Aird & Berlis in the preparation of Jose’s will. There is no allegation that Jose’s will is not valid and effective.

I fail to understand the nature of the conflict advanced by the defendants in support of their motion. The defendants’ case at its highest is that Aird & Berlis is possibly taking a position adverse in interest to Jose. There is no evidence to support such a contention. A removal order is appropriate only in the clearest of cases. This is not such a case. I wish to address a submission of the defendants that the plaintiff has unfettered access to staff and members of Aird & Berlis whereas the defendants do not.

While it is so, in my view, the defendants have not been deprived of access to Aird & Berlis witnesses, assuming that the staff or members of Aird & Berlis are proper witnesses at trial. This is as a result of the filing of affidavits by the Aird & Berlis individuals who were involved with the preparation and execution of Jose’s will and the defendants’ exercise of their right of cross- examination. In fact, I would conclude that the defendants have had better access to witnesses. For these reasons, the defendants’ motion to remove Aird & Berlis is dismissed.

The Plaintiff’s Cross Motion The plaintiff brings a cross motion for an order striking the defence and counterclaim on the basis of the defendants’ failure to attend for discovery or, alternatively for an order that the defendants attend for discovery and for an order compelling production of a further and better affidavit of documents. For the reasons that follow, I would grant the alternative relief sought by the plaintiff and order the defendants to deliver further and better affidavits of documents.

It is notable that discoveries did not proceed directly as a result of the position taken by the defendants that Aird & Berlis was in a conflict of interest. This position was taken two weeks prior to the scheduled discoveries which, by order of Perkins J. dated July 20, 2009, was to be completed by the end of 2009. Although I have not found there to be any such conflict, I would not penalize the defendants for taking such a position by striking their defence and counterclaim. The primary relief sought by the plaintiff is too severe given the circumstances and facts presenting on the motion.

In my view, the appropriate relief is the alternative relief sought by the plaintiff. The record contains a significant level of communication seeking production of the defendants’ tax returns and other documents relating to the rents and expenses of the property. These requests commenced early in the process. It is clear from the letter dated March 29, 2010 that Luisa had further relevant documents not previously disclosed in her affidavit of documents. Prior to the return of the motion, Luisa swore a further and better affidavit of documents. Henrique had not.

As of the date of the motion, tax returns for both Luisa and Henrique remained outstanding. At the hearing of the motion, Luisa had executed a tax authorization. Henrique had not. The plaintiffs also sought bank account records/books, tax information relating to the rental units and copes of applications for social assistance. The documents sought clearly exist and are in the possession, power and control of the defendants. They should be produced. In my view, the affidavits of documents of the defendants were deficient.

Further and better affidavits of documents are needed to address and include all tax returns/filings for the period 1997 to present, records relating to the rental of the property, documents relating to the expenses of the property and copies of applications for social assistance, to the extent that they have not already been produced and/or disclosed. The case has now been timetabled on a case conference held March 7, 2011.

The parties have agreed that despite the order of Perkins J., they consented to the establishment of an amended timetable pursuant to an order of the Master and I have proceeded on that basis. Master MJ Sproat Released March 28, 2011

FAXED TO: J. Longo Fax No.: 416-863-1515 David Lees Fax No.: 416-863-6192