2013 ONSC 1901, 2013 ONSC 1901

CITATION : Talisman Resort v. Keyser, Usling et al, 2013 ONSC 1901 COURT FILE NO.: 09-238 DATE: 20130402 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: ) ) TALISMAN RESORT GP INC. ) ) ) Julia E. Schatz, for the Plaintiff ) Plaintiff ) ) - and - ) ) WOLFGANG KYSER, GARY USLING, BRUNO ARNOLD, MARCUS ARNOLD, TIMOTHY J.W. HODGES, EUROMART REALTY GROUP INC., AMBIANCE CAPITAL CORP and KHB INTERNATIONAL CORP. )))))) Paul J. Pape and Tanya Pagliaroli, for the Defendant Wolfgang Kyser Maureen L. Whelton, for the Defendants Bruno Arnold, Marcus Arnold and Euromart Realty Group Inc. ) ) ) P.

James Zibarras and Karen Sanchez, for the Defendant Gary Usling ) Defendants ) ) Timothy J.W. Hodges, in person ) ) HEARD: March 28, 2013 REASONS FOR DECISION ON MOTIONS Conlan J. Introduction [ 1 ] Should the Plaintiff’s counsel be removed at the request of some of the Defendants?

That is the issue to be decided. [ 2 ] The Plaintiff, Talisman Resort GP Inc. (“Talisman”), has sued the Defendants for specific performance of an alleged agreement made by the Defendants to purchase Talisman’s resort property or, in the alternative, damages for breach of contract. [ 3 ] The Statement of Claim was issued on August 24, 2009. Now, approaching four years later, the litigation has not progressed at any reasonable pace and remains nowhere close to being ready for trial. Numerous motions are outstanding including one by Talisman for

summary judgment. [ 4 ] The Defendants, Wolfgang Kyser (Pape Barristers as counsel) and Bruno Arnold, Marcus Arnold and Euromart Realty Group Inc. (Stevensons as counsel), all collectively referred to hereinafter as “these Defendants”, move for an Order removing Bennett Jones LLP as counsel for Talisman on the basis of an alleged conflict of interest.

[5] In essence, the argument by these Defendants is that Bennett Jones LLP ought to be removed as counsel for Talisman because ofan actual or perceived conflict of interest in that a partner in that law firm (but not the lawyer with carriage of the matter), SerafinoMantini (“Mantini”), (

i) is a witness and (ii) has a personal interest in the litigation in that Mantini is the sole shareholder of Talisman’scorporate shareholder and, as a mortgagee, is owed a substantial amount of money from Talisman. [6] None of the other Defendants still participating in the action filed materials on these motions and presumably take no position,except the Defendant Usling whose counsel appeared in court in Owen Sound on 28 March 2013 to indicate simply that Usling supportsthe motions to remove Bennett Jones LLP as counsel for Talisman. [7] These motions were heard in Owen Sound on 28 March 2013.

The Court reserved its decision. [8] I am indebted to counsel for their helpful motion materials, Facta, Books of Authorities and oral submissions at court. I haveread and carefully considered all of the materials filed and the oral submissions by counsel. A Brief

Summary of the Positions of the Parties These Defendants (moving parties) [9] These Defendants argue that Mantini is a key witness in this action as evident from the fact that Talisman relies on an Affidavitsworn by Mantini in support of its motion for

summary judgment, and that Mantini’s evidence relates to contentious and importantmatters including, for example, whether Mr. Kyser misrepresented certain facts during the course of the proposed purchase ofTalisman’s resort property by the Defendants. [10] These Defendants argue further that Mantini has a financial stake in this litigation in that he, through his companies, is owedseveral millions of dollars by Talisman. [11] Because of either or both of Mantini’s role as a witness and his financial interest in the litigation, Bennett Jones LLP ought to beremoved as counsel for Talisman. So say these Defendants.

Talisman, the Plaintiff (respondent) [12] Talisman argues that the alleged impropriety is illusory in that (

i) Mantini is a witness and is a partner in the same law firm asMs. Schatz, who has carriage of the file, and (ii) Mantini does have a financial interest in the litigation which is in common with that ofTalisman, however, neither one of those facts gives rise to a conflict of interest which justifies the extraordinary Order being sought bythese Defendants. The Law General Principles [13] This Court’s jurisdiction to remove Bennett Jones LLP as counsel for Talisman on the basis of a conflict of interest is aninherent one. It is not derived from any particular legislation or rule.

It is grounded in the Court’s objective to safeguard the properadministration of justice. Puhl v. Katz Group Canada Ltd., [2006] O.J. No. 4596 (S.C.J.) at paragraph 23. [14] The question is whether these Defendants have established on a balance of probabilities that a fair-minded and reasonablyinformed member of the public would conclude that the removal of Bennett Jones LLP as counsel for Talisman is necessary for theproper administration of justice. MacDonald Estate v.

Martin, (SCC), [1990] 3 S.C.R. 1235 at paragraph 47. [15] In answering that question, the Court ought to balance these factors: maintaining respect for, the integrity of and the highstandards of the legal profession and our justice system as a whole; the principle that a litigant has a right to choose its counsel, and thatright should not be interfered with lightly; and the objective of allowing reasonable mobility in the legal profession. MacDonald Estatev.

Martin, supra, at paragraphs 16, 21 and 77. [16] In answering the issue, the Court ought to consider not only whether there is an actual conflict of interest but also whether aconflict of interest could be reasonably perceived in all of the circumstances. In other words, is there an appearance of a conflict ofinterest? Puhl, supra, at paragraph 18. [17] In analyzing the question, the Court may consider any applicable rules of professional conduct. Where there is a rule orguideline or ethical principle directly on point, the Court ought to consider it but is not bound by it.

MacDonald Estate, supra, atparagraph 21. The Lawyer as Witness [18] There is nothing in the Law Society of Upper Canada’s Rules of Professional Conduct which prohibits a lawyer from acting ascounsel for a client when another lawyer in the same firm is a witness in the matter. What is generally prohibited is a lawyer asadvocate also testifying before the tribunal (with some exceptions): Rule 4.02(2). [19] The Canadian Bar Association’s Code of Professional Conduct,

Chapter IX – Commentary number 5, is wider in scope. Itprovides that a lawyer as advocate should not submit the lawyer’s own affidavit to or testify before a tribunal (with some exceptions),and that the said guideline also applies to the lawyer’s partners and associates. [20] The CBA’s Code is subject to “local rule or practice” and, thus, is subject to the Law Society’s Rules. [21] There is no jurisprudence holding that a lawyer in Ontario who appears as an advocate before a tribunal shall not tenderevidence from that lawyer’s partner or associate, whether testimonial or by affidavit. The matter is discretionary and requires a flexible,

case by case approach which involves a consideration of some or all of these factors: the stage of the proceedings; the likelihood that thewitness will be called and the significance of his or her evidence; whether the party applying to remove counsel from the record is doingso in good faith; the impact of the order sought on a litigant’s right to counsel of choice; whether the trial is by judge or judge and jury;the likelihood of a real conflict arising or that the evidence will be tainted; which party will call the witness; and the connection betweencounsel, the witness and the parties to the litigation.

Essa (Township) v. Guergis (1993) (ON SCDC), 15 O.R. (3d)573 (Divisional Court) at paragraph 48. The Lawyer with a Financial Stake [22] If a lawyer cannot properly discharge his or her duties as an independent officer of the court due to the lawyer’s personalinterest in the litigation, then that lawyer may have to be removed from the record.

The policy reason underlying that is clear; a lawyerwith a personal interest in the litigation may, in fact or in perception, put his or her own interests above the obligations owed by thelawyer to the client and to the Court, thereby bringing the administration of justice into disrepute. Karas v. Ontario, 2011 ONSC 5181, [2011] O.J. No. 3932 (S.C.J.) at paragraphs 52, 54 and 55. [23] Again, the Court ought to consider not only whether there is an actual conflict of interest but also whether a conflict of interestcould be reasonably perceived in all of the circumstances.

In other words, is there an appearance of a conflict of interest? [24] The Law Society’s Rules recognize that a lawyer who has a personal financial interest in the client’s affairs or in the subjectmatter of the litigation may be in a conflict of interest if that personal financial interest interferes with the lawyer’s duties owed to theclient and/or adversely affects the lawyer’s judgment: Rule 2.04(1) and the related Commentary. [25] In deciding whether there is a conflict of interest on this ground, the question is whether the personal financial interest gives riseto a substantial risk that the lawyer’s representation of the client would be materially and negatively affected by the lawyer’s owninterest.

Regina v. Neil, 2002 SCC 70 at paragraph 31. [26] Obviously, it is important in addressing that question to know whether the lawyer’s personal financial interest is in any way atodds with the interests of the client. Triple 3 Holdings Inc. v. Jan (2006), (ON CA), 82 O.R. (3d) 430 (C.A.) atparagraphs 22 to 27. Analysis The Lawyer as Witness [27] I glean little assistance from the CBA’s Code because (

i) it is subject to the Law Society’s Rules and (ii) it is suggestive and nota directive (note that the word in

Chapter IX, Commentary number 5 is “should” and not “shall”). [28] Neither the Law Society’s Rules nor any jurisprudence prohibits Bennett Jones LLP from acting as counsel for Talisman whenone of its partners is a witness. [29] Thus, the issue turns on the discussion in Essa, supra. This is a discretionary matter. [30] I disagree with any assertion by Talisman that some of the factors outlined in Essa, supra are irrelevant because Mantini is notthe court advocate for Talisman.

The factors remain relevant, although their importance may be affected by the fact that Mantini is notthe court advocate for Talisman. [31] It must be remembered that, to some degree, all members of a law firm are identified as one in the eyes of the law. Forward v.Zurich Insurance Co., [2002] A.J.

No. 664 (Alberta Court of Appeal) at paragraph 8 (quoting from other Court decisions). [32] I will now discuss the Essa, supra factors in turn. [33] This action is neither in the very early stage nor is it approaching trial readiness, thus, the stage of the proceeding is a neutralfactor. [34] There is a very high likelihood that Mantini will be a material witness at trial, and he is certainly a key witness on the

summaryjudgment motion brought by Talisman. Notwithstanding that Mantini is not the lawyer with carriage of the file, I find that this factor isin favour of these Defendants. I pause here to comment on the decision of Justice Ground of the Ontario Superior Court of Justice inTeltscher v. PTC Accounting, . That decision, in my view, should in no way be interpreted to suggest thatdisqualification will result once there is a finding that there is a likelihood that the lawyer will be called as a witness (see paragraph 13 inparticular).

Justice Ground referred specifically to the Essa, supra factors (at paragraph 10), and thus, it is clear that the likelihood of thelawyer being a witness is one factor. [35] There is no evidence of actual bad faith on the part of these Defendants, however, these motions ought to have been broughtmuch closer to the time that Bennett Jones LLP was appointed as counsel for Talisman and much earlier than the hearing of Talisman’smotion for

summary judgment. This factor tips slightly in favour of Talisman. [36] Unquestionably, the removal of Bennett Jones LLP as counsel for Talisman would have a significant impact on Talisman’s rightto counsel of choice. This factor is in favour of Talisman. Although I reject Talisman’s argument that I should find that Talisman willnot be able to continue the action if Bennett Jones LLP is removed as its counsel (because I find insufficient evidence in the record to sofind), it must be emphasized that Courts ought to tread carefully when being asked to interfere with a litigant’s right to counsel of choice.

In fact, it has been said that “Canadian Courts exercise the highest level of restraint before interfering with a party’s choice of counsel” –Kaiser, 2011 CarswellOnt 12822 (Court of Appeal for Ontario) at paragraph 21. [37] This action will be tried without a jury. That factor is neutral in this case.

[ 38 ] Whether a real conflict of interest is likely to arise in this case or the evidence somehow will become tainted is a factor in favour of Talisman. Tainting of the evidence of Mantini is very unlikely because his evidence is known and was adduced in support of Talisman’s motion for

summary judgment before Bennett Jones LLP was even on the record. Tainting of any other evidence as a result of Mantini’s connection to counsel, Talisman and the litigation is, at best, speculative and certainly not likely. The possibility of Bennett Jones LLP developing a real conflict of interest vis a vis Talisman and/or the court is remote. [ 39 ] The issue of which party will call Mantini as a witness at trial is a factor that tips slightly in favour of these Defendants even with a condition that counsel for Talisman not be permitted to cross-examine Mantini.

That will be up to the trial Justice, however, it is a reasonable measure in my opinion. Counsel for Talisman has given that undertaking to the court and should be held to it. Although one partner in a law firm questioning another partner in the same law firm in direct examination is preferable over the same occurring in cross-examination, it is not ideal. [ 40 ] On the overall connection or relationship between counsel, Mantini and the parties, that factor is in favour of these Defendants. Although Mantini is not the court advocate for Talisman, he is a partner of Talisman’s litigation lawyer.

And Mantini has a direct and significant connection to Talisman. He has a substantial financial interest in Talisman and in the litigation. [ 41 ] This is not a lesson in arithmetic. We do not make decisions by adding up the checkmarks on each side. [ 42 ] This is a close call.

But, having considered the factors outlined in Essa, supra , I exercise my discretion to permit Bennett Jones LLP to remain as counsel for Talisman. [ 43 ] To borrow an expression from Justice Cronk of the Court of Appeal for Ontario in Kaiser, supra , “there must be a possibility of real mischief should a removal order be refused” (paragraph 21). Despite the very able submissions of counsel for these Defendants, I disagree that such exists here. The Lawyer with a Financial Stake [ 44 ] Taken alone, this argument by these Defendants has very little merit.

There is no reason to remove Bennett Jones LLP as counsel for Talisman on the sole basis that Mantini has a personal financial interest, no matter how sizeable, in Talisman and in the litigation. [ 45 ] It is without question that Mantini’s personal financial interest is ad idem with the interests of Talisman. They are not at odds with each other.

There could not possibly be any likelihood, real or perceived, that Mantini’s own interests will be given priority to the duties owed by Bennett Jones LLP to Talisman and to the court, thereby bringing the administration of justice into disrepute. [ 46 ] Put bluntly, if Talisman wins then Mantini benefits. If Talisman loses then Mantini does too. [ 47 ] There is nil evidence that Bennett Jones LLP, during its representation of Talisman in this action, is likely to do something or omit to do something that will prejudice Talisman because of the fact that Mantini has a personal financial interest in Talisman.

Indeed, I suspect that Talisman is very content to have Bennett Jones LLP as its counsel because of the fact that Mantini has a personal financial interest in Talisman. [ 48 ] This argument is relevant, however, in the overall contextual analysis required and in the assessment of the Essa, supra factors, including that dealing with Mantini’s relationship with and connection to Talisman, Bennett Jones LLP and the subject matter of the litigation. As can be seen from my reasons above, I have taken this argument into careful consideration, however, my conclusion remains unchanged.

Conclusion [ 49 ] In balancing the factors outlined by the Supreme Court of Canada in MacDonald Estate , supra , and recognizing that the Court must be concerned with not only actual conflicts of interest but also reasonable perceptions of conflicts of interest, I conclude that these Defendants have not established on a balance of probabilities that a fair-minded and reasonably informed member of the public would conclude that the removal of Bennett Jones LLP as counsel for Talisman is necessary for the proper administration of justice. [ 50 ] It was stated a few times by counsel for these Defendants that not a single court decision was filed by them or the Plaintiff on the motions which, on the same or very similar facts, allowed counsel to remain on the record.

That may be true, but that is no reason to grant the motions. Not a single Parliament of Canada decided to extend the right to vote to women before that happened either. [ 51 ] The motions by these Defendants are therefore dismissed. Bennett Jones LLP shall be permitted to remain as counsel for the Plaintiff, Talisman. [ 52 ] Talisman is entitled to its costs. If the parties are unable to settle the issue of costs, counsel may contact the Trial Coordinator in Owen Sound to

schedule a further court attendance of sixty minutes in length, maximum, to hear submissions and consider filings in that regard. Arrangements can be made for that further court attendance, if necessary, to be by teleconference if the parties so desire. I shall consider the matter of costs resolved between the parties if the Trial Coordinator is not contacted by counsel within two weeks of the release of these reasons. [ 53 ] I encourage the parties to move this action along. It is time to get on with the substantive motions and, if necessary, the trial.

___________________________ Conlan J. Released: April 2, 2013 CITATION : Talisman Resort v. Keyser, Usling et al, 2013 ONSC 1901 COURT FILE NO.: 09-238 DATE: 20130402 ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: TALISMAN RESORT GP INC. Plaintiff - and - WOLFGANG KYSER, GARY USLING, BRUNO ARNOLD, MARCUS ARNOLD, TIMOTRHY J.W. HODGES, EUROMART REALTY GROUP INC., AMBIANCE CAPITAL CORP. and KHB INTERNATIONAL CORP. Defendants REASONS FOR DECISION ON MOTIONS Conlan J.

Released: April 2, 2013