Your office manager has just told you about a document that came in on the fax a week ago. It looks like something to do with a union. You’re busy – reviewing it can wait, and if you need to hire a lawyer, that can happen later. Everyone will understand, after all, your time constraints are the most important thing, right?
Also, the lawyer you hired to address the wrongful dismissal action brought by that employee you had fired? You’ve suddenly realized that you do not see eye to eye with them on the matter. The trial is tomorrow morning, but the lawyer no longer represents your interests adequately. Surely you can fire them as well and the court will understand: the Judge deals with lawyers every day and knows how they can be, so you will get an easy adjournment, right?
Not so fast. Several recent decisions in Ontario have provided a clear indication as to the Court’s position on failing to retain counsel in time or ceasing engagement on the eve of a matter. These are reviewed below, but as a spoiler: the Vice Chair/Judge may hear you, but the Vice Chair/Judge probably does not care.
A Lawyer’s Professional Obligation
A lawyer has a professional obligation to represent their client – except in specific circumstances a lawyer may not unilaterally cease representation. Even when these circumstances arise, a lawyer may not leave their client in the lurch by doing so close to the date of a hearing or other substantive matter – losing one’s counsel when it matters is seen as a negative and something to be avoided at all costs.
This obligation informs the solicitor-client relationship, and is reflected in the Rules of Professional Conduct and the Rules of Civil Procedure. A lawyer who is a client’s counsel of record may not stop work; instead, they must move before the Court for leave to get off record. The reason for this can be as straightforward as a breakdown in communication – but there must be a reason.
When the lack of legal representation is the client’s decision, and not due to the lawyer ceasing representation, things are substantially different.
Delay in Retaining Counsel: Unsuccessful Request for Extension of Time to File Response
In Canadian Union of Public Employees v Carraway Services, 2022 CanLII 22965, the responding employer unsuccessfully sought an extension of time to file its response to an Application for Certification. As its basis for this request, it cited that it had only recently retained counsel. The OLRB, in denying this request, noted that “the responding party did not retain counsel until the day that its response was due is not a reason to extend the time for filing its response.” The employer, as a result, was unable to make any submissions as to how the vote for certification of the union was to be held.
‘Last-Minute’ Breakdown in Relations Between Lawyer and Client: Unsuccessful Request for Adjournment of Hearing of the Motion for Summary Judgment
A more extreme example occurred in Ratigan and Bouttier v. Premier Conferencing, 2022 ONSC 1896 [Premier Conferencing]. The plaintiffs, both former employees of the defendant employer, moved for summary judgment. Plaintiffs’ counsel properly served the defendant’s counsel with their motion materials. The defendant did not file its own materials – nor did it cross examine either plaintiff on their affidavits. The defendant’s counsel appears to have advised plaintiffs’ counsel that he did not intend to file any materials for the motion.
Instead, on the eve of the hearing of the motion for summary judgment, the defendant’s counsel advised the plaintiffs’ counsel that there had been a breakdown in relations with his client, and that he would be getting off record. The defendant’s counsel appeared at the hearing to advise the Court of the situation and to request an adjournment of the day’s hearing. A separate lawyer appeared, advising the Court that he expected to be retained by the defendant in the future, but could not yet get on record. This other counsel advised the Court he supported the requested adjournment.
None of this cut any ice with the Court, which noted that any decision to grant an adjournment was a discretionary one that should only be exercised with the demands of justice. It also noted that the defendant, a sophisticated, international party, had its American counsel observing via Zoom, and that “[i]f the Defendant wanted to change counsel and eliminate any doubt about its intentions, it could have done so in advance of today’s hearing.”
The Court proceeded with the summary judgment motion. It noted that the record reflected one plaintiff’s claim, for six months’ notice, was uncontentious, and awarded the plaintiff this amount. The other plaintiff’s claim, for twelve months’ notice, was contentious only in how the final six months’ of reasonable notice should be paid – either monthly or as a lump sum. The Court granted an adjournment on this issue only – and instructed the defendant to pay the second plaintiff the first six months’ of notice.
Interestingly, the defendant’s misconduct was not addressed in the costs award, as each plaintiff was awarded only $2,500.00 in costs for the motion.
The Lesson: Avoid Prejudicing Your Interests
The lesson to be had from both these cases is to:
- retain counsel early, and
- to maintain your relationship with counsel up to and through a hearing.
A breakdown in relations typically does not happen suddenly; it is the accumulation of multiple factors and issues between the parties. If there is a breakdown, act quickly to engage new counsel; relying on a last-minute breakdown as a basis for a request to delay a matter may not be successful, and instead may wind up prejudicing your interests. In Premier Conferencing, the defendant likely expended a substantial amount in legal fees leading up to the date of the hearing, only to wind up in the same position as if it had not responded to the matter in the first place. All of this could have been avoided by maintaining their communication and relationship with their counsel.
Whether you are an employee or an employer, we will work with you throughout the litigation process in order to see your matter through to conclusion. So contact us early, and before anything happens.