Court File and Parties

COURT FILE NO.: 035/09

DATE: 20090416

SUPERIOR COURT OF JUSTICE - ONTARIO (DIVISIONAL COURT)

RE: DR. RONALD LEVINE and dr. sybil judah (Moving Parties) - and - SHELDON INWENTASH and LYNN FACTOR (Responding Parties)

BEFORE: Justice Swinton

COUNSEL: Rahul Shastri and Ira T. Kagan for the Moving Parties Bryan Finlay Q.C. for the Responding Parties

HEARD AT TORONTO: April 15, 2009

ENDORSEMENT

[1] The moving parties seek leave to appeal a decision of the Ontario Municipal Board (the "Board") dated January 15, 2009, in which the Board dismissed their motion to remove the responding parties' solicitor of record because of conflict of interest.

[2] An appeal lies from the Board to the Divisional Court only on a question of law, with leave of this Court. Leave will be granted only if there is good reason to doubt the correctness of the decision and the appeal raises issues of sufficient importance that they should be determined by the Divisional Court.

[3] The Board applied the test from Macdonald Estate v. Martin, [1990] 3 S.C.R. 1235 dealing with the removal of a solicitor because of conflict of interest. Two questions must be determined in such a motion: first, did the lawyer receive confidential information related to a solicitor and client relationship relevant to the current matter; and second, is there a risk that the information will be used to the prejudice of the former client (at para. 45). The Court set out the proper approach to making those determinations (at para. 46):

... once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is proposed to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant.

[4] As the Court of Appeal stated in Chapters Inc. v. Davies, Ward & Beck LLP (2001), 52 O.R. (3d) 566 (Ont. C.A.), the onus of showing that two retainers are sufficiently related rests with the party who asserts conflict of interest. The concern is "the possible misuse by the lawyer of information acquired in confidence" (at para. 573).

[5] The Board made findings of fact that there had been no retainer between the moving parties and the solicitor, Adam Brown, and that no confidential information had passed between them in two telephone conversations between Dr. Levine and Adam Brown which occurred in April 2007. There was evidence upon which the Board could make those findings (see, for example, paragraph 15 of the responding parties' factum).

[6] The Board characterized Dr. Levine's statement that confidential information had been communicated as a "bald statement". While the Board was aware that the moving parties need not disclose the substance of confidential information, in its view, there was insufficient detail for the Board to be satisfied that the information was confidential. That was a determination the Board was entitled to make.

[7] Moreover, in making the finding with respect to confidential information, the Board member did not look only at the affidavits and exhibits. The Board also applied its expertise with respect to the nature and type of information in hearings dealing with minor variances, as it was entitled to do.

[8] The motion for leave to appeal is dismissed for two reasons. First, the moving parties have failed to show that there has been any error in law. Their major dispute is with respect to the Board's findings of fact. Second, the moving parties have failed to show that there is good reason to doubt the correctness of the decision.

[9] Costs to the responding parties are fixed at $3,000.00 inclusive of GST and disbursements.

Swinton J.

DATE: April 16, 2009