Court File and Parties

COURT FILE NO.: FS-19-009668-00 DATE: 20190523 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Dominic Barrese, Applicant AND: Dina Barrese, Respondent

BEFORE: C. Horkins J.

COUNSEL: Brooke MacKenzie, for the Respondent/Moving Party/Dina Barrese Paul Michell, for the Respondent on Motion/Niman Gelgoot and Associates LLP

HEARD at Toronto: May 16, 2019

REASONS FOR DECISION

[1] The respondent, Dina Barrese (“Dina”) brings a motion for an order disqualifying Niman Gelgoot & Associates (“NGA”) from acting as counsel for the applicant, Dominic Barrese (“Dominic”).

[2] On February 13, 2019, Dominic retained NGA to represent him. Dina sought to retain NGA in June 2016 and again in January 2019. On these occasions, she states that she disclosed sensitive personal and confidential information for the purpose of obtaining legal advice and representation.

Background Facts

[3] The parties were married in 2009 and have two children. They separated in June 2016. Dina says that she and the children were forced to flee the matrimonial home because of abuse and violence. Initially, she went to a shelter with the children and then moved with the children to her parents’ home in Toronto. Dominic denies the allegations of abuse and violence.

Dina’s Communications with NGA in 2016

[4] In the first week of June 2016, shortly after Dina and the children fled the matrimonial home, she contacted NGA with the hope of retaining NGA to assist her. NGA was one of a few law firms that a relative had recommended.

[5] Dina states that she was very emotional, having just experienced violence and escape from the family home with her children. She had a telephone conversation with Joanne Crimi, Harold Niman's longtime assistant. During this telephone call, Dina disclosed numerous personal and sensitive details about her situation.

[6] Dina shared this information for the purpose of obtaining legal advice and representation, and with the expectation that it would be kept confidential. Ms. Crimi conducted a conflict search while Dina was on the phone to confirm that conflicts were clear, before Dina shared the sensitive details of her situation. At no time did Ms. Crimi suggest to Dina that she should refrain from providing relevant personal and confidential information until she formally retained the firm.

[7] Ms. Crimi took notes that summarized her June 2016 telephone conversation with Dina, and sent the notes to Harold Niman the same day. Ms. Crimi states that her notes recorded basic information about Dina and her husband and the abuse that Dina described during the call.

[8] According to Ms. Crimi, Dina said she had a legal aid certificate. Ms. Crimi told her that Harold Niman did not accept legal aid certificates. Nevertheless, Dina kept asking if he would and Ms. Crimi had to repeat herself several times.

[9] Ms. Crimi asked Dina if she wanted to consult with another lawyer at NGA and suggested Richard Niman. Dina said she would think about it and the call ended.

[10] Dina did not retain NGA to represent her. In December 2016, Dominic commenced this application in Durham region. As a result, Dina decided to retain a lawyer in the Durham region instead of NGA or some other Toronto-based lawyer. Her relative suggested to her that she consider retaining a Toronto firm like NGA, if it later appeared the matter was heading to trial and she felt more expertise was required.

Dina’s Communications with NGA in 2019

[11] On December 20, 2018, Justice Rowsell transferred the application to Toronto. Dominic’s Oshawa counsel told him that he would have to retain new counsel to represent him in Toronto. When the transfer order was made, Dina was represented by Eric Sadvari, a Toronto lawyer.

[12] Dina decided to explore the possibility of retaining NGA to act as co-counsel for the trial, as her relative had suggested in 2016.

[13] Dina called NGA on January 22, 2019, and again spoke with Ms. Crimi. Dina reminded Ms. Crimi that they had spoken in June 2016. Ms. Crimi checked the firm's records and confirmed there was a note documenting their earlier discussion.

[14] Dina explained her intention to retain NGA to act for her as the trial was approaching. Dina wanted NGA to act as co-counsel with Mr. Sadvari. Dina updated Ms. Crimi on the status of the litigation. Dina estimates that during a 30 minute call, she shared sensitive and confidential information, including the following:

(i) she disclosed various personal details about the state of her marriage, her children, and her work and financial situation; (ii) she detailed the abuse she has suffered and the steps she had taken to address it; (iii) she described the status of the litigation, her views on the next steps in the case, and her thoughts about her negotiating position and potential settlement outcomes; and (iv) she explained fears about Dominic and his approach and position.

[15] Dina shared this information because she intended to retain NGA to assist her with the application, and she understood that NGA could not act for Dominic because Ms. Crimi had checked conflicts while on the phone with her. Dina trusted that the information she disclosed was going to be kept confidential. She would not have candidly shared her sensitive personal details with NGA, if she thought there was a risk that the firm would choose to act for Dominic against her.

[16] Ms. Crimi did not suggest that Dina refrain from sharing sensitive or confidential information about the matter, until NGA was formally retained. Ms. Crimi asked Dina questions to obtain information about the matter. At one point in their discussion, Ms. Crimi went off the phone to speak with Harold Niman about the information Dina had provided to her, and returned to the call to pass along Mr. Niman's comments. Ms. Crimi and Mr. Niman acknowledge in their affidavits that Ms. Crimi sent her notes summarizing her conversation with Dina to Mr. Niman the same day.

[17] Ms. Crimi told Dina that Harold Niman did not want to act as co-counsel with Dina's current counsel. Harold Niman suggested that Dina meet with Richard Niman to see if he would act as co-counsel for the trial. Ms. Crimi relayed this suggestion to Dina and put her in touch with Geneviève Bergeron-Warren, Richard Niman's law clerk, to set up a meeting.

[18] The same day, Ms. Crimi sent Ms. Bergeron-Warren an email regarding the conversation that she had that day with Dina. She asked Ms. Bergeron-Warren to call Dina and arrange a consultation meeting between Dina and Richard Niman. Finally, Ms. Crimi told her that Dina was talkative and that she should keep the conversation with her brief.

[19] Ms. Bergeron-Warren called Dina that day. The focus of the discussion was deciding on a date and time for Dina to meet with Richard Niman. Dina said that she wanted a face-to-face meeting. Ms. Bergeron-Warren told Dina that the meeting would be a paid consultation and provided Richard’s hourly rate.

[20] According to Ms. Bergeron-Warren, Dina "said she was not looking to retain [NGA] at this time". The trial date was not set and nothing was pending in court. She recorded that Dina wanted to get a second opinion to understand what her options were if the matter proceeded to trial.

[21] Dina provided Ms. Bergeron-Warren with her availability for the in-person meeting, and Ms. Bergeron-Warren told her that she would speak with Richard about his availability, noting that he was tied up with a hearing in another matter the following week. Ms. Bergeron-Warren told Dina that she would call her to set up the meeting, after she had dates for Richard's availability.

[22] After this call, Ms. Bergeron-Warren sent Richard an email asking him for dates when he could meet Dina to discuss her case. In this email, she told Richard that Dina was made aware of his busy schedule and that he was on a trial the following week.

Dominic Retains NGA

[23] While Dina was waiting for Ms. Bergeron-Warren to confirm a date to meet with Richard Niman, Dominic was looking for a new lawyer in Toronto. On January 17, 2019, he retained Michael Stangerone at McDonald & Partners. Dina had met with another lawyer at this firm in 2016. When this fact was revealed, Mr. Stangerone asked Mr. Sadvari to confirm that he could proceed to act for Dominic. Dina did not consent because she had revealed confidential and sensitive information to the firm in 2016.

[24] On January 29, 2019, Mr. Stangerone emailed Harold Niman to see if he would act for Dominic. At this point, Dina was still waiting for confirmation of a date to meet with Richard Niman. Given his work schedule, Richard had not yet replied to Ms. Bergeron-Warren’s email.

[25] Upon receipt of Mr. Stangerone’s email request, Harold emailed Richard the same day to find out if he had met with Dina and been retained. Harold recognized that this was the same case involving “that woman” who wanted NGA to do the trial. Since Dina had not retained Richard, Harold decided that NGA could act for Dominic. It was Harold’s view that Dina had not provided NGA with any confidential information.

[26] Dominic met with a lawyer from NGA on February 6, 2019, signed a retainer on February 13, 2019 and gave the firm a money retainer on February 19, 2019.

[27] No one from NGA ever followed up with Dina, who continued to wait for confirmation of a date to meet with Richard.

[28] On February 19, 2019, NGA informed Mr. Sadvari that Dominic had retained NGA. When Dina learned about this she was shocked because she had provided NGA with sensitive and confidential information and was waiting for a date to meet with Richard. It is Dina’s evidence that she intended to retain Richard.

[29] Dina objected to NGA acting for Dominic and this disqualification motion was brought.

Legal framework

[30] It is agreed that MacDonald Estate v. Martin, [1990] 3 S.C.R. 41 remains the leading authority and provides the legal framework for deciding this disqualification motion.

[31] The courts have inherent jurisdiction to remove solicitors from the record who have obtained relevant confidential information from or about the opposing party. This stems from the fact that lawyers are officers of the court. Their conduct in legal proceedings may affect the administration of justice and as such is subject to the court's supervisory jurisdiction. There is a countervailing value that must be balanced; a litigant should not be deprived of his or her choice of counsel without good cause.

[32] In determining the correct approach on a disqualification motion, Justice Sopinka stated in MacDonald Estate at para.44:

… In dealing with the question of the use of confidential information we are dealing with a matter that is usually not susceptible of proof. As pointed out by Fletcher Moulton L.J. in Rakusen, "that is a thing which you cannot prove" (p. 841). I would add "or disprove." If it were otherwise, then no doubt the public would be satisfied upon proof that no prejudice would be occasioned. Since, however, it is not susceptible of proof, the test must be such that the public, represented by the reasonably-informed person, would be satisfied that no use of confidential information would occur. That, in my opinion, is the overriding policy that applies and must inform the court in answering the question: Is there a disqualifying conflict of interest?

[Emphasis added.]

[33] Justice Sopinka added that a motion for disqualification of counsel typically involves two questions:

(i) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand? (ii) Is there a risk that it will be used to the prejudice of the client?

[34] The first question creates a dilemma: "to explore the matter in depth may require the very confidential information for which protection is sought to be revealed. This would have the effect of defeating the whole purpose of the application". This dilemma is resolved through the "substantial relationship" test. As explained by Justice Sopinka 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 sought 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.

[Emphasis added.]

[35] The majority in MacDonald Estate elected not to adopt an irrebuttable presumption that confidential information was imparted to the lawyer whose removal is sought, but held that the onus on a solicitor to satisfy the court that no information was imparted "will be a difficult burden to discharge", stating at para 46:

Not only must the court's degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed, but the burden must be discharged without revealing the specifics of the privileged communication.

[Emphasis added]

[36] There need not be a finding of impropriety in order to disqualify a law firm. Rather, "it is the appearance of impropriety that is the test. This is particularly true when the litigation involves a family dispute" (Zaldin v. Zaldin, 2014 ONSC 6504 at para 13, citing Taylor v. Nellist, 2004 CarswellOnt 4850 at para. 23, citing MTS International Services Inc. v. Warnat Corp. (1980), 31 O.R. (2d) 221 (Ont. H.C.) and Goldberg v. Goldberg (1982), 31 R.F.L. (2d) 453 (Ont. Div. Ct.)).

[37] Disqualification motions have been refused when the true reason for the motion is tactical; to delay the proceedings (see Zaldin v Zaldin at para. 17).

Analysis

[38] The first question is whether a previous relationship existed between Dina and NGA which is sufficiently related to the retainer between Dominic and this firm. If the answer is yes, then the court infers that confidential information was imparted.

[39] This inference is not absolute. As set out in MacDonald Estate at para. 46, this inference stands unless NGA “can satisfy the court that no such information was imparted which could be relevant”. This is a “difficult burden to discharge”.

[40] The parties agree that a signed retainer is not required to meet the first part of the test.

[41] NGA argues that Dina did not have a “solicitor and client relationship relevant to the matter at hand” because she did not formally speak with or meet any of the NGA lawyers. I reject this argument.

[42] The relationship that developed between Dina and NGA satisfies the first part of the test. On each occasion that Dina contacted NGA, she did so with a view to retaining the firm. It is Ms. Crimi’s role at NGA to receive all incoming calls from people seeking to retain Harold Niman. She runs a conflict search and collects information from the person calling. This information is then passed on to the lawyer.

[43] Ms. Bergeron-Warren performed a similar role for Richard Niman. Ms. Bergeron-Warren says that Dina told her she was not looking to retain NGA at that time. This is denied by Dina and is inconsistent with the rest of Ms. Bergeron-Warren’s affidavit where she states that Dina was looking for a second opinion to understand her options at trial (i.e. what role NGA would play).

[44] The facts in this case are very similar to those in Dalgleish v. Dalgleish, [2001] O.J. No. 2187 (S.C.), where the court accepted that a previous relationship existed based on the contact between the screening secretary and the person seeking to retain the lawyer. I agree with the following excerpt at paras. 31-34 where Nelson J. stated as follows:

31 There is no question in my mind that the working relationship of a legal secretary and her employer lawyer is such that, a prospective client speaking to a secretary in the context of considering whether or not to retain the lawyer, would not differentiate much between them. This is so, as far as the information trail is concerned. The prospective client would, under ordinary circumstances, expect the secretary to convey all of the information to her employer.

32 As is pointed out in the MacDonald Estate case, the focus should be on ensuring that the public has confidence in the integrity of the judicial system.

33 In this case, it would be reasonable to expect that any information given to the secretary by the prospective client would be imparted to Mr. Schmidt.

34 Mr. Schmidt, during his submissions, argued that there was no previous retainer in this case, nor had he and the respondent entered into a solicitor and client relationship. I do not agree. The concept of the solicitor and client relationship attaches so that privileged and prejudicial information can be imparted with confidence. In my view, it is a concept that attaches immediately once a lawyer is given confidential information with respect to an issue especially when litigation is being discussed. I would exclude matters of a purely business or personal nature between a lawyer and a person who has no intention of retaining the lawyer. This was not the case here. The respondent called the lawyer's office with a view to retaining him. The solicitor and client relationship was, therefore, established just as soon as information of a non-administrative nature was imparted. Also, while the cases relied upon by both counsel seem to concentrate on previous retainers that is irrelevant here. The respondent was calling with respect to the very case which the applicant eventually retained Mr. Schmidt to litigate.

[45] Dina’s conversations with NGA went beyond administrative and scheduling matters. This is obvious given that Dina’s calls with NGA on January 22, 2019 lasted a total of 40 minutes. When Ms. Crimi asked Ms. Bergeron-Warren to call Dina she described Dina as “talkative”. Such evidence is consistent with Dina’s evidence that she disclosed personal and confidential details of her situation.

[46] Having accepted that a previous relationship existed between Dina and NGA, which is sufficiently related to the retainer between Dominic and this firm, it is inferred that NGA received confidential information from Dina.

[47] NGA seeks to overcome this inference. A difficult burden rests on NGA as the court stated in MacDonald Estate at para 46:

This will be a difficult burden to discharge. Not only must the court's degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed, but the burden must be discharged without revealing the specifics of the privileged communication. Nonetheless, I am of the opinion that the door should not be shut completely on a solicitor who wishes to discharge this heavy burden.

[48] NGA seeks to discharge the burden by asking the court to consider the sealed part of the file that contains the “confidential” information. This is not required. As stated in MacDonald Estate “the burden must be discharged without revealing the specifics of the privileged communication”.

[49] I reject Dominic’s evidence that Dina has brought this motion to delay the reunification therapy that Boswell J. ordered. While it is unfortunate that the two Toronto lawyers that Dominic wished to retain were previously contacted by Dina, this is a coincidence. Dina has brought her motion without delay. There are many other excellent family law lawyers who Dominic could promptly retain and reunification therapy can be commenced as soon as this occurs.

[50] NGA has not satisfied the difficult burden that rests on the firm to displace the inference that Dina imparted confidential information to NGA. The reasonably informed person looking at this matter would not be satisfied that no use of confidential information would occur. As the court stated in Dalgleish at para. 36:

Family law cases and, especially, family law litigation, are different than most other legal areas. Sopinka J. talks of clients baring their souls to counsel. This is even more the case in family litigation. Clients are nervous and often desperately seeking assistance. The issues are sensitive, especially so in custody matters. There exists in the family law case an emotional vulnerability in people that is often not found in other areas of law. The client must have faith that matters of substance discussed with a lawyer will be held in strict confidence.

[51] In conclusion, the motion is allowed. I make the following orders:

(i) Niman Gelgoot & Associates LLP are disqualified from acting as counsel for the Applicant, Dominic Barrese (ii) If the parties cannot agree on the costs of this motion, they shall agree on a schedule for the exchange of brief written costs submissions and file them with the court by June 24, 2019.

C. Horkins J. Date: May 23, 2019