SUPREME COURT OF Nova Scotia
Citation: Jordan v. Fenwick Holdings Limited, 2023 NSSC 290
Date: 20230912
Docket: Hfx No. 489912
Registry: Halifax
Between:
Margaret Jordan, of Halifax in the Province of Nova Scotia
Plaintiff
v.
Fenwick Holdings Limited (herein FHL) and Shoppers Drug Mart #0133 Curt Chaffe Pharmacy Ltd, doing business as Shoppers Drug Mart (herein SDM) Halifax Regional Municipality, incorporated under the laws of Nova Scotia (herein HRM)
Defendants
Decision
Judge: |
The Honourable Justice Glen G. McDougall |
Heard: |
January 10, 2023, in Halifax, Nova Scotia |
Counsel: |
Margaret Jordan, Self-Representative Plaintiff William Jordan, Assisting the Plaintiff Christine Nault, for the Defendant (Fenwick) Andrew Rankin and Danielle Keating, for the Defendant (Shoppers) William Hatfield for Roxanne MacLaurin, for the Defendant (HRM) |
By the Court:
[1] The matter before the Court is a motion brought on behalf of the defendant - Fenwick Holdings Limited - seeking an order compelling William Jordan to cease acting as counsel and/or legal representative of the Plaintiff.
Facts and background
[2] The Plaintiff, Margaret Jordan, slipped and fell outside the Fenwick Medical Center on July 7, 2018, and suffered injuries. A Notice of Action and Statement of Claim was filed on behalf of the Plaintiff on July 5, 2019. It bore the signature of William Jordan, Q.C. An amended Statement of Claim was filed on July 8, 2019. It, too, was signed on her behalf by Mr. Jordan, who is the Plaintiff’s husband. Mr. Jordan purported to be a lawyer and legal representative for the Plaintiff. He has not been a practicing member of the Nova Scotia Barristers Society (the Society) since resigning his membership in 2010. Prior to resigning, Mr. Jordan was under disciplinary suspension. He has not been reinstated. Pursuant to the Legal Profession Act, 2004, c. 28 at subsection 16(2), he is not permitted to carry on the practice of law in the Province, as he does not meet the statutory requirements. He is certainly not authorized to hold himself out as “Queens Counsel” (now “Kings Counsel”) (see section 78(2) of the Act). I believe he now understands that should he persist in doing so, the Society will likely have to look into his conduct. Though I will often refer to documents and arguments in this decision as coming from “the Plaintiff”, I am mindful that they have been authored by Mr. Jordan.
[3] As previously stated, Fenwick Holdings Limited (Fenwick) brings this motion to remove Mr. Jordan as the Plaintiff’s representative. The other two Defendants, Shoppers Drug Mart and Halifax Regional Municipality, take no position on this motion.
[4] Fenwick claims that Mr. Jordan is in a conflict of interest and cannot represent the Plaintiff. Fenwick says Mr. Jordan, as the Plaintiff’s husband, has a pecuniary interest in the outcome of the litigation. Additionally, Mr. Jordan is a fact witness to the Plaintiff’s fall, and therefore, will have made observations relevant to the Plaintiff’s damages claim. Fenwick argues that Mr. Jordan has extensive involvement in the matter including writing his observations of the Plaintiff’s injuries in a “pain diary” and submitting draft affidavits with factual observations and observations of the Plaintiff’s mental health (an injury for which she seeks compensation). All of this could subject his credibility to cross-examination. This constellation of circumstances and Mr. Jordan’s staunch advocacy is, Fenwick argues, inappropriate because a lawyer cannot appear as a witness and counsel in the same proceeding.
[5] The Plaintiff submits that Mr. Jordan is representing her in a personal or private capacity pursuant to section 9.1.3 of the Nova Scotia Barristers Society Regulations, citing Nova Scotia Barristers’ Society v. Morgan, 2010 NSBS 1. She argues that discharging Mr. Jordan will deprive her of her choice of counsel and will impose time and monetary penalties on her. The Plaintiff argues that without Mr. Jordan’s legal training it would be difficult and counterproductive to present her claim and that hiring outside counsel would be expensive.
[6] The Plaintiff further argues that Fenwick cannot seek an equitable remedy because it did not file a Statement of Defence within the timeline imposed by the Civil Procedure Rules, and therefore, has not come to the court with clean hands. The Plaintiff also says Fenwick’s motion is premature because the pleadings have not yet closed, citing T.E. Gordon Home Inspections Inc v. Smith, 2021 NSCA 13, and that Fenwick has brought this motion after undue delay, contrary to Civil Procedure Rule 1, which calls for the “just speedy and inexpensive determination of every proceeding.”.
[7] The Plaintiff requests that Fenwick’s motion be dismissed with no costs, or alternatively, as costs in the cause.
Issues
1. Should William Jordan be discharged as the Plaintiff’s counsel on this file?
2. Should William Jordan be permitted to represent the Plaintiff under the power of attorney?
Relevant Legislation
[8] The Legal Profession Act governs the practice of law in Nova Scotia. Section 6 sets out the circumstances in which a lawyer may cease to be a member of the society:
(6) A person ceases to be a member of the Society when
(b) as a result of disciplinary proceedings,
(i) the person is disbarred,
(ii) the person's name is ordered to be struck from the Register of Articled Clerks, or
(iii) the person is permitted to resign;
[9] Subsection 16(2) sets out the prerequisites for practicing law:
16(2) No person shall carry on the practice of law in the Province for fee, gain, reward or other direct or indirect compensation, unless the person is
(a) a member of the Society who holds a practising certificate;
(b) entitled to practise law by the governing body for lawyers in a foreign jurisdiction approved by the Council and has met the requirements established by regulation to engage in the practice of law in the Province;
(c) an articled clerk and is practising in accordance with the regulations;
(d) a student of the Faculty of Law of Dalhousie University during the period the student is participating in a legal aid or clinical law program operated by and under the supervision of the Faculty or under the authority of an enactment; or
(e) otherwise entitled pursuant to this Act or the regulations to carry on the practice of law in the Province.
[10] Section 9.1.3 of the Legal Profession Act Regulations (the Regulations) sets out the categories of misconduct that may be alleged in a disciplinary proceeding under the Act:
9.1.3 When considering complaints or charges, the Complaints Investigation Committee and a hearing panel may determine that conduct constitutes:
a) conduct unbecoming, if it involves conduct in a member’s personal or private capacity that tends to bring discredit upon the legal profession, including one (1) or more of the following:
i) committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or competence as a member of the Society,
ii) taking improper advantage of the youth, inexperience, lack of education, lack of sophistication, or ill health of any person,
iii) engaging in conduct involving dishonesty;
b) professional incompetence, if the lawyer fails to apply relevant knowledge, skills and attributes in a manner appropriate to matters undertaken on behalf of a client, and within the reasonable parameters of the lawyer’s experience and the nature and terms of the lawyer’s engagement;
c) professional misconduct if it involves conduct in a lawyer’s professional capacity that tends to bring discredit upon the legal profession, including one (1) or more of the following:
i) violating or attempting to violate one (1) of the provisions in the Code of Professional Conduct or a requirement of the Act or these Regulations,
ii) knowingly assisting or inducing another lawyer to violate or attempt to violate the provisions in the Code of Professional Conduct or a requirement of the Act or these Regulations,
iii) misappropriating or otherwise dealing dishonestly with a client’s or a third party’s money or property,
iv) knowingly assisting a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law,
v) demonstrating a pattern of failing to abide by advice, counsels or cautions provided by the Society or Complaints Investigation Committee,
vi) demonstrating ungovernability.
[11] Though advanced by the Plaintiff as the authority for allowing Mr. Jordan to represent her in a personal capacity, on its face this section does not provide that authority.
[12] Civil Procedure Rule 33 governs the capacity to represent a party in an action as counsel of record:
(1) A lawyer becomes counsel of record for a person by signing and filing one of the following, or by representing to the court that the lawyer acts for the person in a proceeding without stating that the retention is limited:
(a) the notice by which the party starts, defends, contests, or responds to a proceeding, or seeks to become a party;
(c) a court document after a party who had been acting on their own retains the counsel.
(2) Counsel may authorize another lawyer entitled to represent parties before the court to substitute for counsel.
(3) One counsel may start a proceeding on behalf of more than one person.
(4) Two or more counsel may start a proceeding on behalf of different parties by each signing the originating document, the statement of claim in the case of an action, and a statement showing the party on whose behalf each counsel is signing.
[13] Rule 34 requires a party who is under a representative order, such as a power of attorney, to be represented by counsel:
Rule 34 requires a party who is a representative to have counsel:
34.02 Party requiring counsel
Each of the following kinds of parties must be represented by counsel, unless a judge allows otherwise:
(a) a person who requires a litigation guardian;
(b) a party named in a representative capacity, such as a trustee, executor, administrator, or receiver;
(c) an unascertained party.
[14] Rule 36 allows a party to appoint a representative. It provides, in part:
(1) This Rule allows for a party to represent the interests of another person in a proceeding, in one of the following ways:
(d) under a private instrument giving the party management of the property or affairs of the other person or appointing the party as representative, such as an executor under a will, a trustee under a trust that includes powers to sell or manage, or an attorney under a power of attorney; [Emphasis added].
…
36.04 Representative must have counsel
(1) A representative party must act by counsel, unless a judge permits otherwise.
(2) A judge may withdraw permission for a representative to act without counsel, and require the representative to appoint a solicitor of record.
[15] Rule 34 allows a person to “assist” an individual subject to the following considerations:
(1) A judge may permit a person to assist, and if necessary speak on behalf of, an individual party at a trial or hearing.
(2) A party on behalf of whom an assistant is permitted to speak must be present when the assistant speaks, unless a judge allows otherwise.
34.09 Restrictions on agent or assistant
(1) A person may not speak for a party at a trial or hearing unless the person is within subsection 16(2) of the Legal Profession Act, is the appointed agent of a corporate party, or has the permission of a judge to speak on behalf of a party.
(2) A judge may require a corporate party to replace its appointed agent.
(3) The presiding judge may withdraw permission for a person to
assist, or speak for, an individual party.
Analysis
[16] As a preliminary note I will dispose of the Plaintiff’s argument that Fenwick is disentitled to an equitable remedy based on their delay in filing a Statement of Defence. Fenwick has brought a motion for discharge of counsel under the Civil Procedure Rules. Its request is not grounded in an equitable claim. Furthermore, the timing of the filing of the Statement of Defence has no bearing on the issues before this Court.
[17] I will also dispose of the Plaintiff’s argument that Fenwick’s motion is premature. Though the pleadings are not closed, this circumstance is not analogous to the T.E. Gordon case where the court dismissed a motion requesting the court to answer a question of law that would be determinative of some of the issues at trial. In the matter before the Court, Fenwick is requesting a procedural determination that does not engage issues that should properly be dealt with during trial.
Issue 1 - Should William Jordan be discharged as the Plaintiff’s counsel on this file?
Mr. Jordan’s Qualifications to act as counsel
[18] Fenwick claims that Mr. Jordan is not qualified to act as counsel of record because he is not a practicing lawyer pursuant to the Legal Profession Act. This raises two questions I must answer:
1. Is Mr. Jordan qualified to represent the plaintiff? Does his identification of himself as having a “Q.C.” designation bring the administration of justice into disrepute?
2. Is Mr. Jordan in a conflict of interest?
[19] Mr. Jordan does not meet the requirements of section 16(2) of the Act to be eligible to practice law in this province. He resigned from the Society in 2010 and has not been a member since. Though he may not be acting for a fee, he does stand to receive indirect compensation given that the Plaintiff is his wife and any monetary award she might receive would be of joint benefit. I can infer this given their longstanding relationship and Mr. Jordan’s assertion in his affidavit that he and the Plaintiff “speak as one voice” on this matter.
[20] Notwithstanding his ineligibility to practice law, this court has the inherent jurisdiction to control its procedures which includes the ability to allow non-lawyers to act as representatives. In making this finding Saunders JA, writing for the court in Halifax Regional Municipality v. Ofume, 2003 NSCA 110, held:
[30]… It is my considered opinion that the Nova Scotia Supreme Court possesses an inherent jurisdiction, which includes the discretion to control its own process by, among other things, allowing or excluding laypersons from representing parties before the court.
…
[41]… Specifically, with respect to the discretion to allow lay persons to represent others before the courts of Nova Scotia, although such a discretion should be exercised cautiously and sparingly and always with a full consideration of such factors as: the capability and integrity of the lay person; the complexity of the case; the vulnerability of and potential harm to the represented party; the prejudice to the opposing side; the operation of s. 5(1) of the Barristers' and Solicitors Act; the demands upon time and judicial resources; the interests of other litigants seeking access to our courts; the objective of securing a just, speedy and inexpensive determination of every proceeding (C.P.R. 1.03); and the duty to ensure that respect for the administration of justice does not fall into disrepute - I am persuaded that allowing judges to decide who may appear before them on a case by case basis, rather than instituting an outright prohibition, will better serve the interests of justice.
[21] In Steele v. Rendell, 2016 NLCA 70, Green CJ, held that the Newfoundland and Labrador Legal Profession Act should “be merely regarded as a factor to be considered in determining whether, on balance, representation by a non-lawyer should be permitted on the particular facts that are presented” (at para. 26).
[22] I have reviewed the materials presented by the Plaintiff in support of Mr. Jordan representing her in this action. The Plaintiff claims that Mr. Jordan is permitted to act for her in his “personal or private capacity”, citing Morgan, supra. However, in Morgan, the leniency given to lawyers acting in their personal capacity was related to comments the lawyer made during a radio interview. The circumstances in this case relate to Mr. Jordan’s proposed representation of the Plaintiff in her lawsuit. This case is entirely distinguishable on the facts and was decided by a disciplinary hearing panel of the society not a court.
[23] It is clear that the Plaintiff’s brief includes cherry picked citations and quotations that favour allowing Mr. Jordan to continue to represent her. These references misrepresent the cases that have been cited and are borderline misleading to the court. I strongly caution against this type of advocacy, as it is neither helpful to the Plaintiffs’ case nor is it in keeping with the duties of counsel pursuant to section 2.1-1 of the Code of Professional Conduct (Code of Conduct).[1] Moreover, in appearing before the court, he accepts duties that do not arise from the Code of Conduct but which originate in the Civil Procedure Rules and the court’s own inherent jurisdiction. This brief, along with other documents authored by Mr. Jordan, including his email to the defendants entitled “the little orphan Ramp-A liability fable”, and the Plaintiff’s non-compliance with the Civil Procedure Rules, suggest that Mr. Jordan does not believe that the same rules that apply to practicing lawyers apply to him. Allowing such representation undermines the Plaintiff’s action, contravenes Rule 1, and risks adversely impacting the integrity of the profession and the administration of justice.
[24] As a final comment on the impact of Mr. Jordan’s retirement status, I note that the Plaintiff takes issue with Fenwick advising the Society of Mr. Jordan’s representation and his use of the Q.C. (now K.C.) designation. The Plaintiff’s brief argues that since Mr. Jordan retired in 2009, the Society has no authority over his actions. As noted in Steele and Ofume, any actions taken by the Society in relation to a breach of the Legal Profession Act or the Code of Conduct is based on their discretion. This court has no role to play in any disciplinary action that may result.
Conflict of interest
[25] The relationship between Mr. Jordan and the Plaintiff may give rise to a conflict of interest based on section 34 of the Code of Conduct which requires lawyers to avoid conflicts of interest. In commentary, the Society notes that a conflict may arise when “A lawyer has a sexual or close personal relationship with a client. Such a relationship may conflict with the lawyer’s duty to provide objective, disinterested professional advice to the client.”
[26] The Plaintiff and Mr. Jordan have been married since 1974. They clearly have a close personal relationship with each other and the Plaintiff obviously trusts Mr. Jordan to represent her interests, having given Mr. Jordan power of attorney over her financial affairs. The Code of Conduct allows a lawyer to act despite a conflict if there is implied or express consent from the client. It is clear that despite the possibility of a conflict of interest, the Plaintiff consents to Mr. Jordan representing her.
The impact of Mr. Jordan’s role as a witness
[27] In addition to the potential conflict based on his relationship to the Plaintiff, Mr. Jordan is potentially in a conflict based on his connection to the substantive issues at trial. Mr. Jordan has recorded observations about the impact of the Plaintiff’s injuries (in the short and long term) on many aspects of her health, including her mobility, memory, anxiety, sleep, and energy levels. He has sworn to those observations in an Affidavit and has recorded extensive and detailed observations in a “pain diary.” These observations will be directly relevant to the damages that the Plaintiff claims. Additionally, the Plaintiff has claimed a loss of marital consortium. Mr. Jordan may be called as a witness to testify to this aspect of his wife’s damages claim.
[28] In Goldie v. Kings (County), 2021 NSSC 342, Justice Gatchalian noted the common law prohibition against allowing a lawyer to appear as a witness while acting as counsel. She held that “The dual role also creates a conflict between a lawyer's obligations of objectivity and detachment, which lawyers owe to the court as officers of the court, and the lawyer's role as a witness, whose objectivity and credibility are subject to challenge” (at para. 9). However, she also noted that the common law rule is not absolute and listed the following factors to consider when determining whether to discharge counsel:
[11]…
a. the stage of the proceedings;
b. the likelihood that the witness will be called;
c. the good faith (or otherwise) of the party making the application;
d. the significance of the evidence to be led;
e. the impact of removing counsel on the party's right to be represented by counsel of choice;
f. whether trial is by judge or jury;
g. the likelihood of a real conflict arising or that the evidence will be "tainted";
h. who will call the witness; and
i. the connection or relationship between counsel, the prospective witness and the parties involved in the litigation.
[29] Applying these factors to the case at bar I find:
a) That the parties are in an early stage of the proceedings, document disclosure having not yet been completed;
b) There is a strong likelihood that Mr. Jordan will be called as a witness given his authorship of key documents such as the “pain diary”;
c) I have no evidence that this motion was commenced in bad faith. I am satisfied that Fenwick has brought this motion in good faith despite assertions to the contrary by the Plaintiff. I would parenthetically note that it is the Plaintiff who has failed to act in good faith and request permission from the court for Mr. Jordan to represent the Plaintiff despite having been informed by Fenwick of this requirement, leaving Fenwick in the awkward position of having to make this motion;
d) The evidence that Mr. Jordan will provide is significant given that the witnessed the accident and was in close contact and proximity to the Plaintiff following the accident, so he will have significant knowledge of her injuries and impairment. As in Goldie, this evidence has the potential to be controversial;
e) I acknowledge that removing Mr. Jordan as counsel will impact the Plaintiff’s right to her counsel of choice. I also consider the fact that this may cause a financial burden to the Plaintiff as Mr. Jordan stated that he is not charging the Plaintiff for legal services;
f) This trial will take place by judge alone. No trial dates have been set so a removal of counsel will not cause scheduling disruptions;
g) I do not have evidence before me suggesting that the evidence of Mr. Jordan will be tainted, though I do take judicial notice that he stands to receive indirect financial gain from the Plaintiff’s action (should it be successful), which has the potential to create a real conflict;
h) It is likely that the Plaintiff would call Mr. Jordan as a witness given his significant knowledge of the case. Indeed, Mr. Jordan acknowledges in his affidavit that he expects to answer questions about his observations. Should he act as a witness for the Plaintiff he will place himself in the awkward position of having to conduct a direct examination of himself. Should the Plaintiff not call Mr. Jordan it is likely one of the Defendants will;
i) The Plaintiff and Mr. Jordan have a close personal relationship, having been married for over 30 years. As I have discussed above, this relationship has the potential to impact the typical lawyer-client relationship.
[30] Justice Gatchalian’s comments in Goldie on weighing diverging interests and rights are helpful:
“[23] It is my conclusion that, in the circumstances of this case, despite the countervailing interests, Mr. Cuming's proposed dual role would create an unacceptable risk to the proper administration of justice and to public confidence in the integrity of the justice system. Mr. Cuming cannot fulfill his obligations of detachment and objectivity to the court and at the same time give evidence about substantive and controversial matters that are central to the proceedings. He will have to rely on his own evidence in his submissions, and will likely have to comment on his own credibility…”
[31] Given my analysis of the above-noted factors, I am satisfied that the interests of justice favour adherence to the common law rule against appearing as a witness and acting as counsel. I am aware that a party’s right to counsel of choice should not be interfered with unless it is required to preserve the integrity of the justice system (Goldie at para. 19).
[32] I am satisfied, for the reasons noted above, there is a risk to the integrity of the legal profession to allow a non-member of the Society to represent the Plaintiff in these circumstances. I note that this case is distinguishable from the finding in Steele where the court held that a retired lawyer representing his mother would not be considered to be practicing law. In that case the representative had no prospective gain and was not purporting to create a solicitor-client relationship. In this case, Mr. Jordan has continuously represented himself to be counsel for the Plaintiff, for instance, discussing cost submissions and claiming that he will seek a counsel hourly rate. He also stands to indirectly gain from the Plaintiff’s action.
Issue 2 - Should William Jordan be permitted to represent the Plaintiff under the power of attorney?
[33] The Plaintiff has signed a document on November 20, 2022, indicating that she gives her husband James William Jordan power of attorney to act on her behalf in relation to her property and financial affairs. This is a private instrument that gives Mr. Jordan the authority to represent the Plaintiff’s interests pursuant to Rule 36.01(d). This document meets the requirements set out in section 3 of the Powers of Attorney Act, R.S.N.S. 1989, c. 352.
[34] However, simply because the Plaintiff has given Mr. Jordan power of attorney does not mean he can act as her counsel in this action. This court has the inherent power to control its own procedures as well as the guidance of the applicable Civil Procedure Rules.
[35] Rules 34.02 and 36.04 apply to parties who are represented by a representative. Rule 36.04 requires a representative party to act via counsel unless a judge permits otherwise. Though not expressly stated, it is clear that the rules intend counsel to be independent of the represented party. This becomes clearer when read in conjunction with Rule 34.02 which notes that a party who is named as a representative for another party must be represented by counsel. My ruling in Al-Mahamid v. Peart Estate, 2009 NSSC 285, indicates that there is a potential for a conflict of interest should the representative not have counsel. Al-Mahamid also militates against the appointment of Mr. Jordan as the Plaintiff’s representative based on a potential conflict of interest.
[36] I will note that the Civil Procedure Rules require a party seeking to be appointed as a representative to file a motion requesting an order from this Court. Mrs. Jordan did not do so. While this is not determinative of Mr. Jordan’s ability to act as a representative, I wish to highlight the importance of following procedural steps to ensure efficient and effective litigation. I will also note that in Al-Mahmid, I required the party seeking to be appointed as a representative to file an affidavit and a power of attorney document, along with an affidavit of the plaintiff confirming the power of attorney, and a copy of the plaintiff’s passport allowing the court to compare the signatures on the documents. In this action, the Plaintiff has filed a power of attorney and Mr. Jordan has submitted an affidavit for the purpose of rebutting Fenwick’s motion.
[37] Due to the potential conflict of interest issues, this not a situation where it would be appropriate to permit Mr. Jordan to act as the Plaintiff’s representative. Pursuant to Rule 34.08 Mr. Jordan may seek permission from the Court to address the court on the Plaintiff’s behalf. It will ultimately be up to the presiding judge to decide if Mr. Jordan should be given such permission.
Ruling on the Motion
[38] I am satisfied that should Mr. Jordan remain as counsel, the integrity of this action will be at risk. I order that William Jordan be disqualified from acting as counsel for Margaret Jordan in her personal injury action. This finding does not preclude the Plaintiff from accessing this court by representing herself, or by retaining other counsel. I will also note that many lawyers work on a contingency basis, so the Plaintiff’s “impecuniousness” need not act as a barrier to justice.
[39] I will however note, that should the Plaintiff act on her own pursuant to Civil Procedure Rule 34, Mr. Jordan is permitted to assist the Plaintiff in preparing documents for filing and may accompany her for support if she is required to attend court. Other than these limited circumstances, Mr. Jordan is not permitted to file any documents in which he purports to be acting for the Plaintiff nor can he sign anything in which he holds himself out to be a lawyer.
[40] Prior to the release of this decision, I was informed that the Plaintiff had retained a practising lawyer to act on her behalf. After being so informed, I advised all parties and their respective counsel that I would finalize and release my decision as it might have some precedent value and could also assist the parties, who are directly involved, in resolving the issue of costs. If an agreement cannot be reached on costs, I will accept written submission from the parties who are directly involved within 30 calendar days of the date of release of this decision.
McDougall J.
[1] The Code of Conduct applies to practicing lawyers who are members of the Society. Mr. Jordan, having retired from the Society is not necessarily subject to these rules. However, as he is engaged in practice through this action, his actions should accord with the Code of Conduct.