Date: 20031006
Docket: T-406-02
Citation: 2003 FC 1160
BETWEEN:
BRIAN M. DIDONE and MANFRED HARLE
Applicants
and
MICHAEL PETER SAKNO
Respondent
[1] This an application pursuant to Rule 125 to remove the firm of Dimock Stratton Clarizio LLP as counsel of record for Michael Peter Sakno from files T 407-02 and T406-02 and T114-02. These matters are slated for a hearing in seven days before this court.
[2] The grounds for removal per the applicant's affidavit are:
During a recent telephone conversation with counsel, Mr. Sakno advised counsel that he believed Dimock Stratton Clarizio LLP was in a conflict of interest by acting for both himself and Mr. French, a patent agent and lawyer who has previously represented Mr. Sakno's interests in several patent applications.
In light of the conflict Dimock Stratton Clarizio LLP cannot provide advice to either client.
There has been a breakdown in the solicitor-client relationship between Dimock Stratton Clarizio LLP and both Mr. Sakno and Mr. French.
[3] Mr Sakno, representing himself opposed the application.. He advised the court that this a dispute about fees but not of conflict of interest. He wants the action which was started on January 22nd 2002 to proceed on October 14th. He stated that he cannot find new counsel in the short time between the hearing of this application and the start of the trial.
[4] It is clear to me that in this case we are not really dealing with a conflict of interest. No case has been made out that there are conflicting loyalties at play. Instead this there is a dispute as to fees between the applicant and Mr. Sakno. They obviously had some unpleasant discussions regarding fees and Mr. Sakno is in arrears in payment of these fees. However, these discussions are not enough to establish that there has been "a break down of solicitor client relationship" between the applicant and Mr. Sakno as alleged by the applicant. Mr. Sakno has expressed his confidence in the applicant and wants them to represent him in the upcoming trial. The other person named in the affidavit Mr. French was not present at the motion nor represented by counsel.
[5] Where the client expresses confidence in his solicitor the latter has no right to abandon his clients on a flimsy pretext, see Carby Samuels v. Canada (1993), 168 N.R. 59. In this case the vague allegation of "a break down of the solicitor client relationship", one week before trial, would seem to fall into that category.
[6] In addition, the Court received a fax, subsequent to the hearing, from the law firm of MacBeth & Johnson, solicitors of Messrs. Didone, Harle and Milani, respondents in file no. T-114-02 and applicants in files nos. T-406-02 and T-407-02. They were not served by the applicant. They are opposed to the motion and feel a removal of Dimock Stratton Clarizio LLP at this point would prejudice their client's chance to an early resolution of their dispute with Mr. Sakno. Given the implication of a change of solicitors for the imminent trial in the case at hand, they should have been served with this application.
[7] For the above reasons and in light of the failure to serve the solicitors of the respondents in T-114-02 and applicants in T-406-02 and T-407-02, the applications are denied.
"K. von Finckenstein"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-406-02
STYLE OF CAUSE: BRIAN M. DIDONE and MANFRED HARLE
Applicants
and
MICHAEL PETER SAKNO
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 6, 2003
REASONS FOR ORDER BY: VON FINCKENSTEIN J.
APPEARANCES: Mr. Frank Farfan
FOR APPLICANTS
Mr. Michael Peter Sakno
FOR RESPONDENT, ON HIS OWN BEHALF
Mr. Denis Sloan
FOR RESPONDENT
SOLICITORS OF RECORD: MacBeth & Johnson
Toronto, Ontario
FOR APPLICANTS
Michael Peter Sakno
Toronto, Ontario
FOR RESPONDENT, ON HIS OWN BEHALF
Dimock Stratton Clarizio LLP
Toronto, Ontario
FOR RESPONDENT
FEDERAL COURT
Date: 20031006
Docket: T-406-02
BETWEEN:
BRIAN M. DIDONE and MANFRED HARLE
Applicants
and
MICHAEL PETER SAKNO
Respondent
REASONS FOR ORDER