HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Raymond Clarke
Applicant
-and-
Kingdom Hotel Toronto Ltd. and United Food and Commercial Workers International Union, Local 333
Respondents
A N D B E T W E E N:
Miluska Gleeson
Applicant
-and-
Kingdom Hotel Toronto Ltd. and United Food and Commercial Workers International Union, Local 333
Respondents
INTERIM DECISION
Adjudicator: Geneviève Debané
Indexed as: Clarke v. Kingdom Hotel Toronto Ltd.
WRITTEN SUBMISSIONS
Raymond Clarke and Miluska Gleeson, Applicants
Doug MacCleod, Counsel
United Food and Commercial Workers International Union, Local 333, Respondent
Laurie Kent, Counsel
Kingdom Hotel Toronto Ltd., Respondent
No submissions
1In a Case Assessment Direction dated April 23, 2013, the Tribunal directed that a summary hearing be held in the two Applications to address a number of preliminary issues.
2This Interim Decision deals with the Applicants’ Request for an Order during proceedings (the “Request”) to have Koskie Minsky LLP (“Koskie”) removed as solicitors of record for the respondent, the United Food and Commercial Workers Union, Local 333 (the “UFCW”).
3For the reasons that follow the applicants’ Request is denied.
Background
4The Request states that Koskie acts for the UFCW on various labour relations matters, including the negotiation of the collective agreement between the UFCW and the employer respondent. Ms. Gleeson filed a grievance in connection with the termination of her employment. The UFCW referred Ms. Gleeson’s grievance and two other employee grievances to a Reviewer for determination. Ms. Gleeson states that she was represented by Koskie at this hearing.
5Ms. Gleeson alleges that the UFCW offered all three grievors some contribution towards their legal cost, in the event that they chose to commence litigation against their former employer. Ms. Gleeson did not accept this offer. However, another grievor did accept the Union’s offer and she retained Koskie to represent her in an Application filed at the Tribunal which was ultimately dismissed, Georgievska v. Kingdom Hotels Limited, 2013 HRTO 818.
6The applicant takes the position that Koskie cannot represent the UFCW in this Application because it represented “Ms. Gleeson/UFCW at the above-noted Reviewer hearing”, and it represented “Mr. Clarke/UFCW in connection with a group grievance that was brought against” the respondent employer “in connection with the termination of his employment”.
7The UFCW takes the position that at no time was Koskie in a solicitor-client relationship with either of the applicants. Further, Koskie represented the UFCW before the Ontario Labour Relations Board with respect to a duty of fair representation complaint that was filed by Mr. Clarke. The UFCW takes the position that it solely retained Koskie to act for its interests at the hearing and relies on a number of the Tribunal’s cases including, Hansen v. Toronto, 2010 HRTO 13, Hiamey v. Conseil scolaire de district Catholique Centre-sud, 2012 HRTO 301, and Nolan v. Vale Inco Ltd., 2010 HRTO 1758.
8The respondent employer did not file any submissions with respect to the Request.
Decision
9Rule 2.04(4) of the Rules of Professional Conduct of the Law Society of Upper Canada states:
A lawyer who has acted for a client in a matter shall not thereafter act against the client or against persons who were involved in or associated with the client in that matter
(a) in the same matter,
(b) in any related matter, or
(c) save as provided by subrule (5), in any new matter, if the lawyer has obtained from the other retainer relevant confidential information
unless the client and those involved in or associated with the client consent.
10A party’s right to select a legal representative should not be lightly interfered with by the Tribunal. The applicants in their own submissions assert that Koskie has represented the UFCW in a number of labour relations matters, including throughout the negotiation of the collective agreement and the grievance process. Koskie has also represented the UFCW at the OLRB with respect to the complaint filed by Mr. Clarke. Clearly, Koskie and the UFCW have been engaged in a long-standing solicitor-client relationship.
11The issue in this case is whether Mr. Clarke and/or Ms. Gleeson entered into a solicitor-client relationship with Koskie. Neither applicant has provided any evidence to support the existence of a retainer and/or to support their respective assertions that they entered in a solicitor-client relationship with Koskie. There are also no particulars of the confidential information that was allegedly disclosed by the applicants to Koskie.
12The Tribunal stated at para. 7 of Hansen:
To prevent an abuse of its process, the Tribunal may prevent a lawyer who has a conflict of interest from continuing to appear: Universal Workers’ Union v. Labourers’ International Union of North America 2004 CanLII 66334 (ON SC), (2004), 70 O.R. (3d) 435 (S.C.J.). There is no question that a lawyer cannot act against a client he or she has previously represented in a solicitor-client relationship in the same matter: MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235. However, it is also generally recognized that a lawyer for a union is not in a solicitor-client relationship with a member of a bargaining unit who has filed or seeks to file a grievance through the union. While Mr. Hansen points to various correspondences with the TPFFA that he argues confirms a solicitor-client relationship between him and SGM, I do not agree that it in fact creates such a relationship. Accordingly, Mr. Hansen has not shown that SGM previously represented him (as opposed to the TPFFA) and therefore that the firm has a conflict of interest. Accordingly, it has not been shown that SGM should be prevented from representing the TPFFA. Should the Law Society of Upper Canada’s investigation come to a different conclusion, of course, the Tribunal would examine this issue again at the request of Mr. Hansen.
13I find similarly in this case that the fact that Koskie was retained by the UFCW during the grievance process did not create a solicitor-client relationship with either applicant.
Order
14The applicants’ Request to remove Koskie as solicitors for the UFCW is denied.
Dated at Toronto, this 2nd day of October, 2013.
“Signed by”
Geneviève Debané
Vice-chair