Aleksa v. Henley, 2017 ONSC 1117

This decision arises from a motion to remove Counsel of Record, Brennan Kahler and Gary Will, for the minor Plaintiff due to conflict of interest as they had previously also represented his parents whom the Defendants had counterclaimed against.

Released March 3, 2017 | Full Decision [Document Bank]

The minor Plaintiff had been in the care of his babysitter when he fell off a ramp at the skateboard park. The Plaintiffs alleged negligent supervision of the sitter, as well as taking the minor to the skateboard park without permission and not requiring him to wear a helmet. The Defendants alleged that the parents caused or contributed to the accident by not providing the minor with a helmet and not instructing the babysitter not to take the minor to the skateboard park.

Mr. Kahler was retained in 2010 by the minor’s mother as litigation guardian and to represent herself and her husband as FLA Plaintiffs.

The Defendants defended the action in 2010. In 2011, the Defendants served a Statement of Defence and counterclaimed against the parents. Mr. Kahler defended the parents as defendants by counterclaim.

On the eve of trial, Defence Counsel brought a motion to remove Mr. Kahler and Mr. Will due to the alleged conflict. Separate counsel was then retained by the parents, who waived any conflict. A new litigation guardian was appointed for the minor, who also waived the conflict.

Justice Lavine held that the test to remove counsel is whether a fair minded and reasonably informed member of the public would conclude that the proper administration of justice compels the removal based on the appearance of a conflict. She further held that while the litigant’s choice of counsel ought not to be denied without good cause, it is not determinative and the removal of counsel may still be necessary.

Justice Lavine found that as Counsel for the Minor Plaintiff, Mr. Kahler and Mr. Will had a duty to build up his case and maximize his potential for a damage award, including investigating the potential liability of his parents, but that as Counsel for the Defendants by Counter-Claim, Mr. Kahler and Mr. Will also had a duty to protect or insulate the parents from liability and were potentially in a conflict of interest.

Justice Lavine found that as Counsel for the Minor Plaintiff, Mr. Kahler and Mr. Will would have to advise the new litigation guardian on whether to proceed against the parents, their former clients and no waiver by the litigation guardian could change the appearance of this conflict.

Mr. Kahler and Mr. Will were removed.

A motion for leave to appeal was brought as there were conflicting decisions and there was good reason to doubt the correctness of the order. This motion was denied.

 

Plaintiff’s Counsel: Brennan Kahler and Gary Will
Defence Counsel: Alan Rachlin
Read the full decision on the OTLA Document Bank
Sherilyn Pickering
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