Perils of “Off-record” Motions, Law360 Canada (May 18, 2023)

(this article originally appeared in Law360 Canada, part of LexisNexis Canada Inc. on May 18, 2023)

By Nikolay Y. Chsherbinin

A client has an unfettered right to discharge his or her legal counsel at any time and for any reason. Counsel, on the other hand, does not have an unfettered right to withdraw. The 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 the client. These constraints are thoroughly outlined in the rules of professional conduct issued by the Law Society of Ontario. As counsel are officers of the court, and key actors in the administration of justice, the court has inherent jurisdiction to exercise some control over counsel when necessary to protect its process.

To withdraw as a counsel of record without the client consenting to act in person or retain new counsel, a motion is required. A case in point is TSX Trust Company v. Fiorentino, 2023 ONSC 2560 (Fiorentino), where the court lamented that “off-record” motions continue to arise with “troubling frequency” and that counsel failed to comply with very strict procedural requirements for such motions.

In Rule 15.04, the Rules of Civil Procedure sets out specific requirements for the off-record motion. Even the slightest deviation would boot your motion off of a judge’s list. Rule 15.04 states that a lawyer may move “on notice” to his or her client for an order removing him or her as lawyer of record. If there are a number of parties, subrule 15.04(1.1) stipulates that a notice of motion must be given to every other party, but “a motion record need not be served on a party who is not the client.” Rule 15.04(2) further states that service on the client of: (a) notice of motion; (b) motion record; and (c) any order removing the lawyer from the record “shall” be made by personal service or by “mailing” a copy to the client’s last known address.

Suppose you have served a notice of motion by email and not mail, chances are that your motion would not be permitted to proceed due to your failure to comply with the mandatory requirement to mail documents to the client. A practical solution is to mail and email a notice of motion and motion record, and attach supporting documents to your affidavit.

Overlook this pragmatic advice at your own peril. Why? Because at the outset of your “off-record” motion, a presiding judge would call your matter out for failing to comply with the Rules. The judge would then instruct you to comply with the Rules and rebook your motion. Here is the catch: as of May 17, 2023, there are no “off-record” motion dates being offered by the Toronto court until, at least, September 2023. This means you would be stuck representing your client, which would put you as counsel in the position of a perceived or actual conflict between the client’s best interest and the lawyer’s interest in ending the matter as quickly as possible. If the client complains to the law society, you would be written up for failing to move quickly to get off the record. The absence of available motion dates might be a legitimate excuse, at this time.

Rule 15.04(1.2) and (1.3) are where both novice and seasoned counsel make mistakes, mostly because they may have never brought an “off-record” motion before and, significantly, because there is no guidance as to how to file redacted and unredacted materials. Rule 15.04(1.2) provides for the redaction of information in the motion record that is protected by lawyer-client privilege or that could, if disclosed to another person, be prejudicial to the client. This rule is designed to ensure that the client’s interests are properly protected on these motions and to underscore lawyers’ continuing legal obligations to their clients both during and after their retainers. Rule 15.04(1.3) further provides for the confidential provision of the unredacted motion materials to the judge for review before deciding the motion without making those unredacted materials part of the court record.

A very practical question immediately comes to mind: since “off-record” motions are conducted mostly via Zoom, how does one provide the unredacted motion materials to a judge, if, first, you don’t get to know who will be sitting and, secondly, Ontario lawyers are required to upload the redacted motion materials using CaseLines and file the redacted materials with the court via the Justice Service Online portal?

This is the very area where the moving counsel in Fiorentino ran into trouble. In this case, the judge observed: “… the moving party’s motion materials were not redacted in any way and were replete with information that is not only subject to lawyer-client privilege, but is also highly prejudicial to the client in respect of her defence on the merits to this action. Those completely unredacted materials were not only served on the plaintiff, but were also filed with the court, making them public record.” This was in direct breach of Rule 15.04 and as the judge noted: “emblematic of a very troubling issue with so-called ‘off-record’ motions.”

The judge went on to stress the importance of complying with Rule 15.04, stating: “it is incumbent on all counsel to ensure that this sort of behaviour is not repeated. Should this apparent trend of disregarding rules 15.04(1.2) and (1.3) continue, sanctioning of counsel may be appropriate regardless of the outcome of the motion.”

This brings me back to the vexing question as to how one is to file the unreduced motion materials prior to the motion. Here is how: you sign in into your virtual courtroom, pursuant to a Zoom link provided by the court, you ask the registrar for her or his email address, and you email your unredacted motion materials to him or her. The registrar would forward your motion materials to the judge, who would, in all likelihood, read your supporting affidavit first to see how a notice of motion and motion record were served on the client. If you failed to comply with Rule 15.04(2), your matter would likely not be permitted to proceed.

Suppose your “off-record” motion proceeded as planned. If your draft order is not prepared in accordance with specific requirements as set out in the Rule 15.04(4), the judge may hold your matter down in order for you to fix the order or may fix the order with you right there by hand. Expect that the judge would be displeased if your draft order is not in the required form. In addition, please note that there are separate requirements for the order when it comes to individual versus corporate clients.

Aside from the procedural requirements for “off-record” motions, there are practical intricacies that counsel should be mindful about. Courts will be wary of counsel who are attempting to portray a fee dispute as a fundamental breakdown in the solicitor-client relationship. Be straightforward as to the dispute with the client, and don’t try to dress it up.