HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Shelley Schaubel
Applicant
-and-
Alzheimer Society of Niagara Region / Alzheimer Society Niagara Foundation
Respondent
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: Schaubel v. Alzheimer Society of Niagara Region / Alzheimer Society Niagara Foundation
WRITTEN SUBMISSIONS
Shelley Schaubel, Applicant
Self-represented
Alzheimer Society of Niagara Region / Alzheimer Society Niagara Foundation, Respondent
Leanne Standryk, Counsel
1This is an Application dated February 23, 2015 alleging discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The purpose of this Interim Decision is to address an allegation of conflict of interest raised by the applicant in relation to counsel retained by the respondent. The applicant states that in 2010 she previously had retained the law firm of which respondent counsel is a member. While a different lawyer at the firm acted for the applicant in that matter, the applicant notes that the invoice she was issued for work done on her file indicates that her lawyer had consulted with the lawyer who is now representing the respondent in this proceeding.
3The respondent takes the position that the applicant has not established that there is any conflict of interest. It is submitted by the respondent that the applicant must prove the existence of a conflict of interest, which entails proving that the former matter and the current matter before this Tribunal are sufficiently related on the basis of convincing evidence: see Chapters Inc. v. Davies, Ward & Beck, 2001 CanLII 24189 (ON CA), [2001] 52 O.R.(3rd) 566. The respondent further submits that the Tribunal’s consideration of the conflict of interest allegation requires this Tribunal to consider two key questions:
a. Did the lawyer receive confidential information in the former solicitor-client relationship that is relevant to the matter at hand?
b. Is there a risk that the confidential information will be used to prejudice the former client?
See MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235
4The respondent states that the applicant retained a lawyer from the law firm of which its counsel is a member in early May 2010 with respect to an employment-related matter concerning a company other than the respondent. After the lawyer retained by the applicant was appointed to the bench, the applicant’s file was transferred to another lawyer in the firm in early February 2011. The respondent acknowledges that its counsel was consulted on two occasions in April, 2011 by the lawyer acting for the applicant, regarding preparation for mediation and the preparation of a statement of issues. The respondent states that no further consultation was undertaken with its counsel and its counsel did not ever meet with the applicant subsequent to the appointment of her original lawyer to the bench in early February 2011. The applicant’s matter with this former employer was concluded in September 2011, at which time her retainer with the law firm came to an end.
5The respondent submits that its legal counsel is not barred from acting against a former client pursuant to Rule 3.4-10 of the Rules of Professional Conduct or at common law. It is stated that the matter before this Tribunal is a new and wholly unrelated matter to the applicant’s former retainer with the law firm. The respondent takes the position that no relevant confidential information was provided by the applicant to the law firm which could now prejudice her in the matter before this Tribunal.
6The commentary to Rule 3.4-10 of the Rules of Professional Conduct states: “It is not improper for a lawyer to act against a former client in a fresh and independent matter, wholly unrelated to any work the lawyer has previously done for that client if previously obtained confidential information is irrelevant to that matter”. In my view, this commentary is an accurate reflection of the common law on this point.
7I also agree with the respondent that it is the applicant’s onus when raising a conflict of interest to establish that the matter before this Tribunal is “related” to the prior matter for which she had retained counsel from the same firm, or that the firm has relevant confidential information arising from its prior representation of her that may prejudice her in the matter before this Tribunal. In my view, the applicant has not satisfied that burden. The prior matter for which she retained the law firm now representing the respondent in this proceeding was an employment matter relating to an entirely different company and the applicant has not identified any confidential information that she provided to the law firm now representing the respondent that is either relevant to the current proceeding before this Tribunal or that may prejudice her in this proceeding.
8Accordingly, the applicant’s request for removal of respondent counsel due to a conflict of interest is denied. Having said that, as a matter of good practice, I note that respondent counsel previously had advised the applicant that the file from her prior retainer with the law firm has been closed and is in storage, and that counsel would not be given access to that file or any electronic file pertaining to the prior matter. In my view, that is a good practice for the law firm representing the respondent to follow, and it is the Tribunal’s expectation that it will do so.
ORDER
9For the foregoing reasons, the applicant’s request for removal of respondent counsel due to a conflict of interest is denied.
Dated at Toronto, this 25th day of June, 2015.
“Signed by”
Mark Hart
Vice-chair