CITATION: Wyn Re Network LP v. Partners Advantage Realty Ltd. 2012 ONSC 3336
DIVISIONAL COURT FILE NO.: 444/11
DATE: 20120605
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
POLOWIN, WILTON-SIEGEL AND HERMAN JJ.
BETWEEN:
WYN RE NETWORK LP
Plaintiff/Appellant
– and –
ROBERT JACOBUS VANDEN BROEK, CHARLES JOHN VANDEN BROEK, GORD DIEBERT, SHIRLEY FISHER, 765418 ALBERTA LTD.,FAY VAN DYK, BEN VAN DYK, 593981 ALBERTA LTD., STAGECOACH REALTY INC., JIM KRANJEC, JOHN ALLAN YARED, PARTNERS ADVANTAGE REALTY LTD., WALLACE ERSKINE JOHNSTON and RALPH SHAW
Defendants/Respondents
AND BETWEEN:
PARTNERS ADVANTAGE REALTY LTD. and RALPH SHAW
Plaintiffs by Counterclaim/Respondents
-and –
WYN RE NETWORK LP
Defendant by Counterclaim/Appellant
Paul D. Guy and Scott McGrath, for the Plaintiff/Appellant
Michael R. Kestenberg, for the Respondents, Partners Advantage Realty Ltd., Wallace Erskine Johnston and Ralph Shaw, Defendants and Plaintiffs by Counterclaim
HEARD at Toronto: June 5, 2012
WILTON SIEGEL J. (orally)
[1] The appellants appeal the order dated August 8, 2011 of Mesbur J. dismissing the appellant’s motion seeking an order removing Davis Moldaver LLP as lawyers of record for the defendants Partners Advantage Realty Ltd., Ralph Shaw and Wallace Erskine Johnston (“the Defendants”).
[2] The relevant facts are well summarized in the decision of the motion judge and are not disputed by the appellants. In her endorsement dated August 8, 2011 (“the Endorsement”), the motion judge held that a telephone call and an email described below did not establish a solicitor/client relationship or a solicitor/potential client relationship between Mr. Hanuka/Davis Moldaver LLP and Wyn Re.
[3] The appellants assert that a near client relationship was established by virtue of the telephone call between Mr. Hanuka and Mr. Little on March 5, 2010 and the email of Mr. Hanuka to his clients at the time and Mr. Little sent on April 12, 2010. They rely on the language of subrule 2.04(4) of the Rules of Professional Conduct of the Law Society of Upper Canada, which refers to “persons involved in or associated with the client”.
[4] On this appeal, the appellants raise three issues. However, Mr. Guy conceded that the second and third issues do not arise if he is unsuccessful in his first argument that a near client relationship was established.
[5] The appellants argue that the motion judge failed to apply the correct test to determine the existence of a near client relationship. The appellants say that the proper test is: were the appellants involved in or associated with the same matter as Mr. Hanuka’s clients at the time of the telephone call and email referred to above? As mentioned, they argue that on this test a near client relationship was established between Mr. Hanuka and the appellants.
[6] We find no error of law in the motion judge’s finding. In particular, there is no basis for a finding that a near client relationship was established. The circumstances in this case are far from the circumstances in which courts have found a near client relationship to exist.
[7] In the present circumstances, there were separate claims or anticipated claims asserted against various franchisees by a third party franchisor, including against the appellants and Mr. Hanuka’s clients at the time.
[8] The appellants were represented by their own counsel in respect of these claims. The information was used for the very purpose for which it was intended when it was disclosed by Mr. Little. The parties were sharing information in both directions among themselves in order to assist in their respective defences to these third party claims. The only commonality between the parties was that the appellants and Mr. Hanuka’s clients had certain defences in common to the claims asserted by the third party. These circumstances do not satisfy the test for a near client relationship.
[9] We are aware that the overriding concern in allegations of conflict of interest involving a solicitor/client relationship is the maintenance of the high standards of the legal profession and the integrity of our system of justice. We are satisfied that this principle is not engaged in the circumstances of this case.
[10] Accordingly, we conclude the motion judge did not err in law when she determined that there was no relationship that gave rise to a conflict of interest of the nature addressed in the guiding decision of MacDonald Estate v. Martin, 1990 32 (SCC), [1990] 3 S.C.R. 1235 (S.C.C.).
[11] In the circumstances, there is no need to address the other two grounds of appeal raised by the appellants. The appeal is therefore denied.
POLOWIN J.
COSTS
[12] I have endorsed the Appeal Book and Compendium: “For oral reasons given, the appeal is denied. Costs are fixed in the amount of $15,000 ($5,000 for the leave to appeal application and $10,000 for the appeal itself).
WILTON-SIEGEL J.
POLOWIN J.
HERMAN J.
Date of Reasons for Judgment: June 5, 2012
Date of Release: July 24, 2012
CITATION: Wyn Re Network LP v. Partners Advantage Realty Ltd. 2012 ONSC 3336
DIVISIONAL COURT FILE NO.: 444/11
DATE: 20120605
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
POLOWIN, WILTON-SIEGEL AND HERMAN JJ.
BETWEEN:
WYN RE NETWORK LP
Plaintiff/Appellant
– and –
ROBERT JACOBUS VANDEN BROEK, CHARLES JOHN VANDEN BROEK, GORD DIEBERT, SHIRLEY FISHER, 765418 ALBERTA LTD.,FAY VAN DYK, BEN VAN DYK, 593981 ALBERTA LTD., STAGECOACH REALTY INC., JIM KRANJEC, JOHN ALLAN YARED, PARTNERS ADVANTAGE REALTY LTD., WALLACE ERSKINE JOHNSTON and RALPH SHAW
Defendants/Respondents
AND BETWEEN:
PARTNERS ADVANTAGE REALTY LTD. and RALPH SHAW
Plaintiffs by Counterclaim/Respondents
-and –
WYN RE NETWORK LP
Defendant by Counterclaim/Appellant
ORAL REASONS FOR JUDGMENT
WILTON-SIEGEL J.
Date of Reasons for Judgment: June 5, 2012
Date of Release: July 24, 2012