Date: 20010104
Docket: IMM-1208-01
Neutral citation: 2002 FCT 11
Toronto, Ontario, Friday the 4th day of January, 2002
Present: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
MIKLOS BALOG, LASZLONE ONODI,
KRISZTIAN ONODI and LASZLO ONODI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is a motion in writing dated December 30, 2001 by Galati, Rodrigues & Associates for an order removing Roger D. Rodrigues as solicitor of record for the Applicants. There is some urgency to this motion since the judicial review hearing is fixed for next week in Toronto on January 10, 2001.
[2] The grounds advanced by counsel for his removal as solicitor of record is that he cannot locate his clients or receive instructions from them. In addition, counsel has been unable to secure a retainer as a result of the Applicants' failure to return to Legal Aid Ontario for a financial reassessment. The motion is supported by the affidavit of the secretary for Mr. Rodrigues in which she sets out efforts made and problems encountered by the law firm in communicating with the Applicants over the past few months.
[3] Although the notice of motion was served on the Respondent, there is no indication that any attempt was made to serve the Applicants in compliance with the Federal Court Rules, 1998. Rule 125 sets out a comprehensive procedure to obtain an order for removal of a solicitor of record. Rule 125(2) requires that the party formerly represented by the solicitor be served with the notice of motion. Where personal service cannot be practicably effected, the notice of motion may be served by mailing it to the party's last known address. It does not appear that this option was considered by counsel.
[4] In any event, by operation of Rule 141(1), service would only be effective on the tenth day after the document was mailed and with the intervening Christmas period, this motion would not be ready for disposition until after the hearing date of the judicial review application. In my view, the moving party's failure to serve the Applicants is fatal in and of itself.
[5] In addition, Rule 2.09(1) of the Rules of Professional Conduct of Ontario provides that a lawyer shall not withdraw from representation of a client except for good cause. A review of the Court file reveals that the Applicants' Record, which includes a 29 page memorandum of argument, was filed back on April 11, 2001. There is simply no evidence that any further instructions are required by counsel from the clients. Further, the date of the hearing of the application for judicial review has been known since September 17, 2001. One is left to wonder why counsel waited until ten days before the hearing to bring this motion.
[6] The governing principle set out in a commentary to Rule 2.09 is that a lawyer should protect his client's interests to the best of his ability and should not desert the client at a critical stage of a matter or at a time when withdrawal would put the client in a position of disadvantage or peril. The Court also has an interest in ensuring that last minute motions not interfere with the orderly hearing of scheduled matters. The problem in securing a retainer is certainly unfortunate for counsel, however it should have been addressed earlier and cannot now serve as a justification for withdrawal.
ORDER
THIS COURT ORDERS that:
1. The motion is dismissed.
"Roger R. Lafrenière"
Prothonotary
Toronto, Ontario
January 4, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1208-01
STYLE OF CAUSE: MIKLOS BALOG, LASZLONE ONODI,
KRISZTIAN ONODI and LASZLO ONODI
Applicants
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
REASONS FOR ORDER AND
ORDER BY: LAFRENIÈRE P.
DATED: FRIDAY, JANUARY 4, 2002
WRITTEN SUBMISSIONS BY: Roger D. Rodrigues
For the Applicants
No written submission on behalf of the Respondent
SOLICITORS OF RECORD: Galati, Rodrigues & Associates
Barristers & Solicitors
203-637 College Street
Toronto, Ontario
M6G 1B5
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020104
Docket: IMM-1208-01
Between:
MIKLOS BALOG, LASZLONE ONODI,
KRISZTIAN ONODI and LASZLO ONODI
Applicants
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER