RECONSIDERATION DECISION
Before: Maureen Helt, Vice Chair
File: 18-002377/AABS
Case Name: P.M. vs. ACE INA Insurance Company
Written Submissions By:
For the Applicant: James V. Leone, Legal Counsel
For the Respondent: George Wray, Legal Counsel
OVERVIEW
1This is a request for reconsideration made by the applicant with respect to a Motion Decision released by Adjudicator Watt dated October 19, 2018. Adjudicator Watt dismissed the applicant’s motion to remove the respondent’s counsel of record on the basis of a conflict of interest.
2In this request for reconsideration, the applicant submits that Adjudicator Watt made a significant error by concluding that the respondent’s law firm, Borden Ladner Gervais (BLG) was not acting in a conflict of interest. The basis for the claim of conflict of interest is that General Motors of Canada (GM), a defendant in the tort claim arising from the accident, was represented by BLG. BLG is now acting for the defendant insurer, ACE INA in this application. The applicant argues that the Tribunal erred in its finding that GM is a different entity in fact or in law than the respondent in this proceeding, ACE INA.
3The applicant further argues that the Tribunal failed to properly apply the law or otherwise misinterpreted the law on conflicts of interest disqualifying counsel. The applicant seeks an order that counsel for ACE INA, George Wray and BLG, are disqualified as counsel in this matter and removed from the record as well as an order re-hearing those parts of the issues that are the subject of the reconsideration.
4Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c. 33, Sched. 5, the Executive Chair delegated to me the responsibility to decide this reconsideration request.
RESULT
5For the reasons that follow, I dismiss the respondent’s request for reconsideration.
BACKGROUND
6The applicant was involved in a motor vehicle accident on August 11, 2005. At the time of the accident, he applied for accident benefits from ACE INA as the insurer of the vehicle that struck him while he was riding his bicycle. In March 2018, he filed an application for dispute resolution with the Tribunal. In April 2018, on behalf of ACE INA, BLG filed a response to the application.
7Shortly after the accident, the applicant started a separate tort claim against the driver of the vehicle and GM, as the owner of the vehicle. It is important to note that the tort action was dismissed at some point in 2012.
8It is this relationship noted above that gave rise to the applicant’s motion, filed July 16, 2018, requesting an order removing BLG as lawyers of record on the basis of an irreconcilable conflict of interest. The motion was decided by Adjudicator Watt in writing and released on October 19, 2018. Adjudicator Watt dismissed the applicant’s motion.
MOTION DECISION
9In reaching his decision with respect to the alleged conflict of interest, Adjudicator Watt states the following at paragraphs 14 to 16:
At para 14: I find that BLG did not receive confidential information attributable to a solicitor client relationship relevant to the issues at hand. There is no evidence before me that Mr. While also worked on the current claim for accident benefits, which application was submitted by the applicant approximately five years later after the tort claim settled.
At para 15: BLG at the time of the tort claim as also not acting for the Respondent, but was acting for General Motors, a different client using Mr. White who left the BLG firm.
At para 16: The facts I rely on that Mr. White is no longer being with BLG; BLG’s client in the tort action being different that the current respondent; the sworn affidavit evidence of Mr. Wray indicating that he received no information attributable to a solicitor-client relationship relevant to the issues in the Accident Benefits Claim, would lead me to find that there is no risk that if BLG represents the respondent, it would be used to the prejudice of the applicant.
ANALYSIS
10The grounds that must be established in order for a request for reconsideration to be successful are set out in Rule 18 of the Common Rules of Practice & Procedure of the Licence Appeal Tribunal, Animal Care Review Board and the Fire Safety Commission (Rules).
11The applicant submits that the Tribunal made a significant error in concluding that GM is a different entity in fact or in law than ACE INA. In reviewing the submissions of the applicant, I can see no evidence to support its allegation that GM and ACE INA are the same legal entity nor what the “irreconcilable conflict of interest” may be.
12The evidence before me is that the tort matter was dismissed in 2012. At that time, BLG and Mr. White were working as counsel for GM. Mr. White, the BLG lawyer representing GM on the tort claim, is no longer with the firm. There is no evidence that confidential information was shared between Mr. White in representing GM on the separate tort matter and Mr. Wray in representing ACE INA in this accident benefits matter. In addition it was five years after the tort claim settled that BLG was contacted by ACE INA with respect to the applicant’s claim for benefits. Mr. Wray, who is counsel on this matter, was not counsel of record in the tort action.
13Another basis for its request for reconsideration is the applicant’s submission that the Tribunal made an error in law in failing to conduct the proper legal tests for conflicts of interest disqualifying counsel as part of its analysis.
14In his motion decision, Adjudicator Watt considered the test for a disqualifying conflict of interest. In referring to Justice Sopinka’s decision in MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), Adjudicator Watt set out the test as follows:
i. Did the lawyer receive confidential information attributable to a solicitor client relationship relevant to the issues at hand? (Adjudicator Watt’s emphasis)
ii. Is there a risk that it will likely be used to the prejudice of the client?
15Adjudicator Watt stated that the test to be applied is from the point of view of an ordinary member of the public, not the courts or by counsel.
16In this regard, the applicant submits Adjudicator Watt failed to properly apply the test from the point of view of an ordinary member of the public. The applicant offers no details in its argument as to why it takes this position other than relying on Dervisholli et al. and Cervenak and State Farm 2015 ONSC 2286 where a law firm represented an insurer on both the accident benefits side and on the tort side of an accident at the same time and there was found to be a conflict of interest. Adjudicator Watt clearly considered the case and distinguished it from the facts present in the current application.
17After considering all of the submissions, I find that Adjudicator Watt appropriately found that there was no evidence that BLG received confidential information attributable to a solicitor client relationship relevant to the issues at hand in the proceeding before the Tribunal.
18Adjudicator Watt found that at the time of the applicant’s tort action, BLG was not acting for the respondent, ACE INA, but for GM which retained Mr. White who has since left the firm.
19For the reasons noted above, I dismiss the applicant’s request for reconsideration as I have found no error in fact or law. Adjudicator Watt considered the issues raised in the motion, he gave due consideration to the allegations of a conflict of interest and applied the case law properly in determining, based on his understanding of the evidence, that there was no conflict.
Maureen Helt Vice Chair Tribunals Ontario – Safety, Licensing Appeals and Standards Division
Released: April 23, 2019