Court File and Parties
Court File No.: FC486/23
Date: 2025-03-17
Court: Superior Court of Justice – Ontario
Applicant: Hans Charles Jonckheere
Respondent: Irene Theodora Maria Slegers
Before: T. Price
Applicant Counsel: S. Laubman (and agent for Lerners LLP)
Respondent Counsel: I.D.D. Sneddon
Heard: 2025-02-12
Endorsement
Nature of Motion and Issues it Raises
1The Respondent, Irene Theodora Maria Slegers (“Irene”), seeks an order disqualifying Lerners LLP (“Lerners”) from acting for the Applicant, Hans Charles Jonckheere (“Hans”), in the current proceeding because of what she claims is a conflict of interest.
2Her request raises four issues. They are:
- Issue #1: Was Irene ever in an actual solicitor-client relationship with Lerners LLP?
- Issue #2: If the answer to Issue #1 is “yes”:
- Did Lerners lawyers Allison Dale or Mark Lerner receive confidential information attributable to that solicitor-client relationship relevant to the matter at hand?
- Is there a risk that it will be used to the prejudice of the client?
- Issue #3: If the answer to Issue #1 is “no”, did Irene’s communication of her allegedly confidential information to Allison Dale or Mark Lerner place Lerners in a conflict of interest in this litigation, despite the absence of an actual solicitor-client relationship with Lerners?
- Issue #4: Is the chance that Allison Dale may be a witness in this litigation sufficient to disqualify Lerners from representing Hans?
Background to the Motion
3The parties began to cohabit in 2015, were married on July 18, 2018 and separated in January 2021. Before cohabiting, they had been involved in a long-term relationship of undefined duration.
4Over the course of their relationship, the parties executed two Domestic Contracts. The first was a Cohabitation Agreement, executed on June 28, 2017. The second was an Amending Agreement, executed on October 29, 2021.
5While provision was made in the agreements for Irene to be paid some fixed term spousal support, she otherwise released all property and other spousal support claims. The 2017 Agreement also contained an acknowledgment that Irene was disabled and was in receipt of CPP disability income.
6On May 5, 2023, Hans’ former solicitor issued an application in which he sought only a divorce.
7On February 16, 2024, Irene filed an Answer in which, while acknowledging the validity of the agreements, she sought to extend her spousal support, claiming that she has suffered post-agreement material changes to her health.
8The situation is different now. Irene has a motion pending in which she seeks leave to amend her Answer to request the setting aside of the agreements. Should the amendment be allowed, she will be seeking ongoing spousal support, a continuation of her benefits and equalization of the parties’ net family properties. That motion is not before me.
9Perhaps needless to say, Hans disputes Irene’s various claims.
10In December 2023, before Irene filed her Answer, Hans consulted with, but did not retain, Bryan Smith, an experienced family law counsel and partner at Lerners’ Toronto office, about Irene’s claim to extend her fixed term spousal support.
11After Irene had filed her Answer, Hans retained Mr. Smith in June 2024, who became counsel of record for Hans on July 4, 2024 when he served a Notice of Change of Representation on Mr. Sneddon, who is Irene’s counsel.
12Before he was retained, Mr. Smith arranged for a conflicts search. The search utilized Irene’s name, her date of birth, and details with respect to her occupation, although she was unemployed at that time. The search results yielded no information suggesting that Irene was either a current or a past client of Lerners, or that she ever had been an opposite party on any Lerners matter. Mr. Smith was satisfied that the conflicts check was clear.
13Mr. Smith conducted oral questioning of Irene on October 9th and November 7, 2024. She answered the questions put to her.
14Mr. Smith’s questioning of Irene was to be completed on January 16, 2025. Two hours before it was scheduled to resume, Mr. Sneddon, for the first time since Lerners had become counsel of record six months earlier, claimed on behalf of Irene that Lerners was in a conflict of interest by its representation of Hans.
[15] He did so in a letter to Mr. Smith in which he asserted that the conflict arose because Lerners had previously represented: a. Irene’s mother, Theodora, in connection with the preparation of her will and general estate planning; and b. the Estate Trustees of Irene’s mother’s estate after her death.
16Mr. Sneddon’s specific assertion was that “[Lerners] has a conflict of interest as my client’s mother would have conveyed confidential information about her daughter’s physical and emotional well-being.”
17Mr. Smith’s affidavit provided the following information, none of which was disputed by Irene in her reply affidavit:
a. Within 24 hours of receiving Mr. Sneddon’s letter of January 16, 2025, Lerners had created a privacy/ethical wall so that no one from Lerners’ Toronto Family Law Group is able to gain access to Allison Dale’s files relating to Theodora’s will and estate planning or her estate, and Allison Dale cannot gain access to Hans’ family law file;
b. At no time prior to the creation of the privacy/ethical wall did he or anyone else in Lerners’ Toronto Family Law Group have access to any of Allison Dale’s files, or any contents thereof, relating to Theodora’s will and estate planning, estate administration, or the sale of Theodora’s residence, all of which are maintained in Lerners’ Strathroy office;
c. He has only attended Lerners’ London offices twice in the past 12 years, and has never been to Lerners' offices in Waterloo or Strathroy; and
d. He has never met Allison Dale, has never talked to her, and did not know who she was before January 16, 2025.
18Moreover, Mr. Smith deposed that, during the matrimonial litigation, Irene has produced hundreds of pages of medical records covering the years 2010 to 2024, which detail her history of depression, anxiety, grief, chronic pain, and other physical and mental health issues, as well as her financial difficulties and use of pain medications, including Fentanyl, for “constant physical and emotional pain from her back injury, fibromyalgia, panic attacks and depression.”
19According to Mr. Smith, a psychiatric report from August 2021 also confirmed Irene’s history of depression, use of narcotics, fibromyalgia, degenerative disc disease, migraines, chronic back pain, and suicidal thoughts, amongst other things.
20Mr. Smith further deposed that correspondence from Irene's legal counsel leading up to the 2017 and 2021 agreements “made clear that the existence of Irene's disabilities predated the signing of the agreements and that she was not able to work.”
Lerners’ Representation of Theodora Slegers and Her Estate Trustees
21In 2020, Irene’s mother, Theodora Slegers (“Theodora”), retained Allison Dale of Lerners to prepare her Will. Theodora’s previous Will had been prepared by a now-retired lawyer whose practice had been assumed by Lerners.
22The new Will was signed by Theodora on July 2, 2020. Irene, together with her siblings Peggy Slegers and Mario Slegers, were named as beneficiaries. Peggy Slegers and Mario Slegers were also named as Theodora’s Estate Trustees. Irene was not.
23Theodora Slegers died on April 3, 2022.
Irene’s Evolutionary Understanding of the Effect of Being an Estate Beneficiary
24Irene’s initial understanding of her claim was contained in the following statement to which she deposed in her initial affidavit: “I always considered myself to be a former client of Lerners as I was a beneficiary of my mother’s will and had contact with staff and Allison Dale at Lerners from time to time after my mother died.”
25However, at the time she swore her initial affidavit, she had come to understand, based on advice that she had received from Mr. Sneddon, her “current lawyer,” that she “may not be considered a former client of Lerners as I was a beneficiary of my mother’s will and not an executor of her will,” a distinction that she claimed not to have “understood until” Mr. Sneddon had told her.
26As to this assertion, Mr. Smith noted that Irene said nothing to this effect during oral questioning, nor did she say anything about Lerners’ involvement with her mother’s estate planning or the administration of her mother’s estate.
Review of Irene’s Specific Allegations
Lerners has a conflict of interest because:
Allison Dale possesses private, confidential information about Irene which Theodora Slegers “would have” conveyed to her during Theodora’s retainer for the preparation of her Will.
Allison Dale possesses information which Irene disclosed to her at some undefined time in relation to her “medical situation” and her “medical disabilities and their deterioration” the latter of which, Irene contends, are relevant to the conduct of this proceeding in respect of her spousal support and equalization claims.
Allison Dale wrote her, on or about January 31, 2023, about her mother’s estate and her entitlement as a beneficiary, providing her with an estate accounting for the period between April 23, 2022 and December 30, 2022, and an “Acknowledgement, Release, Indemnity and Undertaking.”
Allison Dale may need to be a witness in the matrimonial proceeding and if that were to occur, she would be subject to either examination or cross-examination by a lawyer from her own firm.
That she is a former client of Mark Lerner, a partner at Lerners, regarding a financial lawsuit that is relevant to this proceeding, a claim that she raised, for the first time, in her reply affidavit.
Lerners’ Response
Allison Dale
27Ms. Dale deposed that “Irene was never a client of any matter” that she worked on “during [her] career at Lerners.”
28More specifically, she asserted that:
a. “Irene was not a client of Lerners with respect to [her mother’s] Estate Planning File;”
b. “Irene had no involvement in the work Lerners performed for Theodora regarding her estate planning and will preparation;” and
c. having reviewed Theodora’s estate planning file [1], there was nothing in it which would “indicate any involvement by Irene in that matter,” thus explaining Ms. Dale’s inability to recall any interaction with Irene regarding her mother’s estate planning and will preparation.
29Ms. Dale, similarly, denied Irene’s claim that she had been a client of Lerners in connection with the administration of Theodora’s estate. Lerners’ clients for those legal services were the estate executors. They happened to be Irene’s two siblings, who were also the other beneficiaries of Theodora’s will.
30Noting Irene’s total lack of knowledge about what, if anything, her mother may have told Ms. Dale about her medical condition [2], Ms. Dale deposed that, having reviewed the notes of her discussions with Theodora Slegers about the preparation of her new will, she found “no information provided about Irene’s medical condition.”
31According to Ms. Dale, Theodora only provided her with the following standard information about her beneficiaries, which included Irene: their full name, address, marital status, and whether they had children.
32Irene did not dispute this evidence of Allison Dale in her reply affidavit.
Further Allegations and Responses
33Ms. Dale did acknowledge that she had “very limited direct contact with Irene” while representing her mother’s executors. Ms. Dale specifically identified a telephone call she had received from Irene in October 2022, about which she had made notes.
34While neither Irene nor Ms. Dale identified the reason for Irene’s call, Irene’s affidavit appears to identify it. She deposed that her estate trustee siblings, with whom there were “complications” at the time of their mother’s death, wanted her to be removed from their mother’s home, an issue that she “discussed…briefly with Ms. Dale.”
35Support for Irene’s possible removal from her mother’s home being the reason for her call to Ms. Dale is found in Ms. Dale’s evidence that, as a result of receiving Irene’s call, she told Irene that:
a. she did not represent her;
b. she could not provide her with legal advice; and
c. she should seek independent legal advice in relation to the administration of her mother’s estate.
36Ms. Dale further deposed that the notes which she took about Irene’s call in October 2022 “do not record any discussion of Irene’s medical conditions.”
37In her reply, Irene did not dispute Allison Dale’s evidence about their telephone contact, or what Allison Dale deposed to having told her at that time.
38Ms. Dale confirmed that between January 27 and February 12, 2023, she had sent out to each of the beneficiaries of Theodora’s estate, including Irene, a document that she referred to as “a standard letter sent to beneficiaries on behalf of the executors, reporting on the administration of the estate.” She also confirmed Irene’s evidence that the correspondence included a release to be signed in connection with the executors’ administration of Theodora’s estate.
39In her reply affidavit, Irene disputed Ms. Dale’s evidence about the limited nature of their communications during the administration of her mother’s estate. While she claimed that she had “several communications with Ms. Dale” over an undefined period, she produced only one email from Ms. Dale dated January 31, 2023. Irene claimed that the email was sent to her by Ms. Dale in reply to an email that she had written to Ms. Dale about “the distress and migraines I suffered as a result of previous unintended correspondence” she had received from Ms. Dale.
40That “unintended correspondence” was a draft of Ms. Dale’s “standard letter” to beneficiaries. The draft had been intended for the executors of Theodora’s estate for review and approval. Irene received a copy in error. Her copy did not include the release since the draft letter was not intended for her.
41In her January 31, 2023 email, Ms. Dale both apologized to Irene for having sent her a draft letter that did not include the release and expressed her understanding that not including the release in the draft letter might have confused Irene. Ms. Dale suggested that a simple email from Irene requesting clarification about what she had received would, hopefully, have resulted in “less stress to yourself.”
42Tellingly, Ms. Dale also asked that “any and all future communications between” Irene and Lerners “be done in a professional manner.”
43Addressing this claim, Mr. Smith deposed that Hans had instructed him to neither object to Ms. Dale testifying nor to cross-examine her if she testifies. Additionally, Hans has undertaken to not call Ms. Dale or anyone on her team as a witness in the matrimonial proceeding.
Mark Lerner
44She met at a London restaurant with Mark Lerner, a senior partner at Lerners, in the spring of 2009 when she and Hans were in a relationship although he was married to someone else at the time. Hans had arranged the meeting, although he was not in attendance.
45The meeting was “to discuss a lawsuit that [Irene] wished to commence against RBC Dominion Securities related to financial issues involving them.” She alleged that confidential information was disclosed to Mr. Lerner during “a lengthy discussion about the merits of the lawsuit.”
46For reasons she claimed not to recall, Mr. Lerner declined to have Lerners represent her. Instead, he referred her to Toronto counsel.
47Their next contact was three years later on March 9, 2012. At that time, Mr. Lerner again provided her with “legal advice” about the litigation against RBC Dominion Securities after she expressed dissatisfaction about her then-current lawyer. According to Irene, after the parties “discussed the merits of my lawsuit again,” Mr. Lerner referred her to a different Toronto lawyer.
48According to Irene, Mr. Lerner and Hans are close friends, and Mr. Lerner has “significant confidential medical and financial confidential information” about her and her litigation against RBC Dominion Securities.
Lerners’ Response
49According to Mr. Lerner, Irene was never a client of mine or Lerners LLP as she alleges. He asserted that he and Irene have never discussed a claim that she wanted to commence against RBC Dominion Securities, nor has he ever given her any legal advice regarding such a claim or with respect to any other matter.
50He indicated that he was contacted by Hans in 2009, who told him that Irene wanted to sue RBC Dominion Securities because of alleged mismanagement of her accounts by her investment advisor.
51He told Hans that Lerners could not represent Irene because RBC is a client of Lerners. Lerners would not act against it. No details of Irene’s claim were discussed with Hans. Instead, he provided Hans with the names of some commercial litigators in Toronto.
52Shortly thereafter, Irene contacted him. She asked to meet with him at a London restaurant near Lerners’ offices to thank him for providing the names of the commercial litigators in Toronto. Hans did not arrange their meeting.
53Their social meeting lasted for less than one hour. At no time did they discuss her claim against RBC Dominion Securities, or her financial or medical circumstances. Irene disclosed no confidential information during the meeting.
54He also denied speaking with Irene in 2012 about her litigation against RBC Dominion Securities.
Irene’s Second Reply
55Irene took issue with Mark Lerner’s denials of any discussions with her about a possible or ongoing action against RBC Dominion Securities.
56More particularly, she responded to his denial of having spoken to her about her litigation in 2012 by appending to her affidavit two heavily redacted emails which she sent on March 9, 2012 to two Toronto lawyers. In each email, the only unredacted portions indicate that she was contacting the recipient because Mark Lerner had “highly recommended” that she do so. She also noted that both Mark Lerner and another lawyer agreed that she needed to replace the lawyer who was currently representing her.
57She deposed that Mark Lerner’s recollection of their interactions is inaccurate, and that she had “always understood” that he was providing her with advice “in his capacity as a lawyer.”
Issue #1: Was Irene ever in an actual solicitor-client relationship with Lerners?
58Not surprisingly, the parties take opposing positions on this question.
59Based on her evidence, Irene has advanced three different scenarios under which, she contends, she is a former client of Lerners. They are:
a. that her mother, when instructing Allison Dale about her own will and estate planning matters, “would have conveyed confidential information about [Irene’s] physical and emotional well-being” to Ms. Dale;
b. that, because she was a beneficiary of her mother’s estate, she was automatically a client of Lerners, meaning that any information that she conveyed to Ms. Dale during contacts with her during the administration of her mother’s estate constituted communications with Lerners in her capacity as a client of the firm; and
c. that she is a former client of Mark Lerner because:
i. despite being told by Mark Lerner that Lerners could not or would not represent her, in 2009 she disclosed “confidential information” to him in a restaurant during a “lengthy discussion about the merits of” “a lawsuit that [she] wished to commence against RBC Dominion Securities related to financial issues involving them;”
ii. on March 9, 2012, she contacted Mark Lerner to complain about the representation that she was receiving in her litigation against RBC Dominion Securities and, during that contact, Mark Lerner again gave her “legal advice” and “discussed the merits of [her] lawsuit,” after which he referred her to a different Toronto lawyer; and
d. she “always understood” that he was providing her with advice “in his capacity as a lawyer.”
Issue #1: The Law
60In deciding whether there is a disqualifying conflict of interest in a case where a party seeks the removal of the opposite party’s lawyer because that lawyer, or a member of that lawyer’s firm, had a prior professional relationship with the party seeking the removal, the key question to be answered by the court is whether “the public represented by the reasonably informed person would be satisfied that” the lawyer whose removal is sought would make “no use of confidential information…” acquired during the prior professional relationship with the party seeking the lawyer’s removal. (MacDonald Estate v. Martin, para. 44)
61Typically, in such cases, the following two questions need to be answered. (1) Did the lawyer receive confidential information attributable to a solicitor-client relationship relevant to the matter at hand? (2) Is there a risk that it will be used to the prejudice of the client? (MacDonald Estate v. Martin, para. 45)
62It is clear from the Martin case… that the concern of the court in dealing with this issue is to prevent the misuse of confidential information — that is confidential information derived from a solicitor-client relationship. (Pielak v. Crown Forest Industries Ltd., [1991] B.C.J. No. 3097, para. 10 (S.C.))
63Generally, before a disqualifying conflict of interest based on the potential misuse of confidential information can be found:
a. a solicitor-client relationship must have existed between the solicitor sought to be removed and a party presently adverse in interest; and
b. the relevant confidential information arose in the context of that relationship. (Moffat v. Wetstein, para. 48)
64The burden of proof is on the party seeking the removal of the lawyer representing the opposite party to establish that it was in a solicitor-client relationship with that lawyer. (Savanna Energy Services Corp. v. CanElson Drilling Inc., 2010 ABQB 645, para. 88)
Issue #1: Analysis
65In his submissions on behalf of Irene, Mr. Sneddon asserted the conclusory fact that Irene and her siblings “are all current or former clients of Lerners.” He cited no authority for his assertion, other than cases relating to the passing of confidential information, which will be discussed below.
66There is no evidence that Irene spoke to Ms. Dale during the currency of her mother’s retainer regarding her estate planning. It is clear from the evidence of Ms. Dale that she had no contact with Irene at any point during her mother’s retainer of Lerners in connection with her estate planning and the preparation of her will.
67Irene tried to bolster her position by claiming that her mother had to have spoken about her to Ms. Dale during their meetings. She provided no evidence of that. Her claim is merely speculative.
68It would be a remarkable thing to claim that you became a client of a lawyer by simply being related to someone who consults with that lawyer about their own business. In my view, such a claim would be nonsensical.
69Irene also claimed that she is a former client of Lerners because she was a beneficiary of her mother’s will, an assertion also made by Mr. Sneddon in his factum, for which he cited no authority. I suspect that he cited none because none exists.
70Indeed, Irene undermined her own contention in this regard when she acknowledged, despite having “always considered” herself to be a former client of Lerners because she was a beneficiary of her mother’s will, that Mr. Sneddon had disabused her of her misunderstanding. Mr. Sneddon was correct to have done so.
71However, he also asserted in his factum that a “reasonable person would not distinguish between a beneficiary and an executor as to whether they are ‘clients.’”
72I disagree. To the extent that Mr. Sneddon may have been trying in his submission to draw upon the policy issue addressed in McDonald Estate v. Martin, the Supreme Court wrote about satisfying “the reasonably informed person.” In her mistaken view of there being no difference between being the executor of an estate and a beneficiary of that estate, I find that Irene was not a “reasonably informed person.” She has admitted as much.
73I hold that merely being named as a beneficiary of a will does not make one a client of the lawyer retained by the executors of that will to perform legal services in connection with the administration of the estate.
74That leaves only Irene’s claim to be a client of Lerners through her mother because she had personally spoken to and communicated with Ms. Dale while she was providing legal services to the executors and, during those communications, she had disclosed information relating to her “medical situation” and her “medical disabilities and their deterioration,” all said by Irene to be germane to the current litigation.
75Against that, I have the uncontradicted evidence of Allison Dale that, during Irene’s contacts with her about Irene’s siblings’ efforts to remove her from their mother’s house — at which time Irene more likely than not sought to make a case for remaining in the house by telling Ms. Dale about her “medical situation” and her “medical disabilities and their deterioration” — she told Irene that she did not represent her, could not give her legal advice and urged her to retain her own lawyer.
76Simply put, Irene, operating under the mistaken belief that Allison Dale was her lawyer, claims that she told Ms. Dale about her medical conditions in what I find was an effort to remain in her mother’s house. Having done so, she was directed to seek legal advice elsewhere because Ms. Dale was not her lawyer.
77The other communication on which Irene relies is that which followed Ms. Dale erroneously sending her the draft letter that was intended for approval by the executors. According to Irene, she communicated with Ms. Dale about this. While her email was not produced, Ms. Dale’s response suggests that, on receiving the email, Irene contacted her and, in a less than civil tone, complained to Ms. Dale that the receipt of the draft letter without a release caused her to suffer the “distress and migraines” to which she deposed. This, I surmise, is the “confidential medical information” that Irene claims to have conveyed to Ms. Dale at that time. I also note that this communication came after Ms. Dale had already told Irene that she did not represent her; hence, Irene’s sense of freedom to communicate rudely with Ms. Dale, who she knew was not her lawyer.
78I conclude that Irene is now claiming that, because she gratuitously and under a mistaken, unfounded belief offered information about her medical conditions to the lawyer representing the estate executors, including after she knew that the lawyer did not represent her, that lawyer, and by extension the firm of which she was a member, also became her lawyer. I disagree.
79I hold that, without more, the gratuitous and unsolicited disclosure of information by someone opposite in interest to a lawyer’s client cannot possibly result in the person making the disclosure becoming the client of, or creating a conflict of interest for, the lawyer representing the party opposite in interest. More is required, and that will be discussed, below, in respect of Issue #3.
80Therefore, subject to any change that might result from my review of Issue #3, I find that Irene never had a solicitor-client relationship with Allison Dale or, through her, with Lerners.
81I now turn to Irene’s claims with respect to her interactions with Mark Lerner.
82I begin by again noting that the claim made by Irene with respect to her involvement with Mr. Lerner was raised for the first time in her reply affidavit. That fact alone makes inadmissible any evidence of her claim with respect to Mark Lerner’s contacts with her, unless I allowed the affidavit to stand. I made no such order. (Evans v. Watson, [2010] O.J. No. 1018, para. 30 (Ont. S.C.))
83Compounding her problem, Irene filed a second reply affidavit in response to Mark Lerner’s affidavit responding to her claims about him. While Mark Lerner’s affidavit was itself irregular, it was made necessary by Irene’s initial disregard for the Rules. Her second reply merely accentuated her disregard for them.
84Notwithstanding Irene’s disregard for the Rules, I did read her affidavits about her contacts with Mark Lerner and do address the claims that she has made with respect to them because the parties need to know whether what Irene has claimed about her contacts with Mark Lerner is disqualifying for Lerners, to avoid this particular claim being raised again in future, in a new motion.
85The original meeting was initiated by or on behalf of Irene. Mark Lerner did not seek her out.
86According to Irene, when they met, not in his office but in a restaurant — which strikes me as a somewhat unusual location to meet for a discussion about retaining a lawyer to undertake serious commercial litigation — after she told Mark Lerner about her proposed claim, he told her that Lerners could not represent her. She deposed that she cannot remember why he declined to represent her. He said that it was because Lerners represented RBC Dominion Securities. [3]
87Whatever was said at the time, by the end of the meeting, Irene knew that Mark Lerner was not her lawyer and would not be representing her. He referred her to Toronto counsel, and she followed up on his suggestion. She ultimately retained Toronto counsel and commenced her litigation.
88Notwithstanding having this knowledge, Irene claims that she contacted Mark Lerner, again, three years later, because of her dissatisfaction about her then-current representation. She had to have known that he would not represent her because he had told her that three years earlier. The only reason for her to have contacted him would be to seek the names of other counsel who might represent her because he had supplied her with names three years before.
89Mr. Lerner says no such contact occurred. Even if he is mis-recollecting, I find that the contact was for a limited purpose. As to Irene’s disputed claim that they “discussed the merits of [her] lawsuit again,” one would have to wonder why that would be a topic of discussion since Mr. Lerner, who denied the contact in any event, had already made clear that he would not have been able to represent her.
90I find it far more likely that, in contacting Mark Lerner in 2012, on a single occasion, if she did, Irene had one purpose — to obtain the name of a new lawyer who could represent her. Whether she told Mark Lerner the status of her litigation at the time or not was not relevant to the call. If she did impart information about her case to him, I cannot see the difference between what she did on that occasion, and at their first meeting, when she spoke of a proposed action, from what she did in contacting Allison Dale. In short, I find that Irene is and was a person who over-shares information, whether the person with whom she is disclosing it wanted to hear it or not. That is what she did with Allison Dale. I find that she did the same thing with Mark Lerner.
91The emails that Irene produced from 2012 indicate that the contact with the lawyers in Toronto was made on the recommendation of Mark Lerner. While that is consistent with why she indicated that she contacted him in 2012, it does not refute his denial of any contact. She could have simply made up the rationale for contacting the new lawyers. That noted, I think it likely that Irene did contact Mark Lerner in 2012 to request the names of other lawyers who could represent her and the brevity of the contact explains Mark Lerner’s failure to recall it.
92While Mr. Sneddon submitted that it was “reasonable for Irene to conclude that Mark Lerner was acting as her lawyer,” I question the logic of the statement. What she does say is that she “always understood” that Mark Lerner was providing her with advice “in his capacity as a lawyer.” Not as “my’’ lawyer. It would not be surprising that a lawyer declining a retainer might provide the names of lawyers who might be able to represent the person whose retainer is being declined.
93Irene knew in 2009 that Mark Lerner was not representing her and would not do so. She had no contact with him for the next three years, during which she apparently sought no “advice” from him. Why not? Her litigation was ongoing in that period. [4]
94Did Irene think that she was running retainers with multiple lawyers about the RBC Dominion Securities action? She did not say so. Was she ever billed by Mark Lerner for his legal advice about the RBC Dominion Securities claim? She did not say so. By writing the Toronto lawyers in 2012 and, presumably, setting out the information about her claim against RBC Dominion Securities, did she think or has she claimed that those lawyers were also representing her? She did not say so.
95As I have already noted, it is my view that, in speaking with Mark Lerner, whether once or twice, Irene did what she did with Allison Dale. She over-shared her personal information in an effort to gain assistance or direction. As with Allison Dale, that behaviour, alone, did not make Irene a client of Mark Lerner.
96Consequently, I also find that, subject to any change that might result from my review of Issue #3, Irene also never had a solicitor-client relationship with Mark Lerner or, through him, with Lerners.
Issue #2: If the answer to Issue #1 is “yes”:
- Did Lerners lawyers Allison Dale or Mark Lerner receive confidential information attributable to that solicitor-client relationship relevant to the matter at hand?
- Is there a risk that it will be used to the prejudice of the client?
97I need not discuss this issue because it would only apply in the event that I found there to be a solicitor-client relationship between Irene and Lerners through such a relationship with Allison Dale or Mark Lerner.
98However, as I have already noted, what occurred between Irene and Allison Dale, or between Irene and Mark Lerner, raises the same question: What more is required to place a lawyer who does not represent a person in a position of conflict as the result of receiving confidential information from that person?
Issue #3: If the answer to Issue #1 is “no”, did Irene’s communication of her allegedly confidential information to Allison Dale or Mark Lerner place Lerners LLP in a conflict of interest in this litigation, despite the absence of an actual solicitor-client relationship with Lerners LLP?
99This is, in essence, the thrust of Mr. Sneddon’s case on behalf of Irene. Her case is predicated on her having provided confidential medical and financial information to Allison Dale and Mark Lerner and, through them, to Lerners, thus placing Lerners in a conflict of interest as a result of receiving such information.
100Lerners’ position is set out in its factum as follows:
As stated, disqualifying counsel from the record and depriving a party of their counsel of choice is an extreme remedy. It is even more exceptional when the party seeking disqualification is not a current or former client. Such cases are extremely rare and are limited only to cases where there is clear evidence that confidential information was provided to a lawyer with the strict understanding that it would not be used against the non-client. The burden of proof to meet this high standard lies with the moving party.
Issue #3: Law
101For a party who is not a former client of a lawyer representing an opposite party to succeed in having the lawyer representing the opposite party removed, the non-former-client party seeking the lawyer’s removal must establish that, first, confidential information was given to the lawyer, and secondly, the confidential information was given with the clear understanding that the information was confidential and that it could not be used by the lawyer against the non-client. (Titan Linkabit Corp. v. S.E.E. See Electronic Engineering Inc., [1991] F.C.J. No. 326, para. 4; Ross v. New Brunswick Teachers' Assn., para. 9, both cited in Moffat v. Wetstein, para. 51; Wyn Re Network LP v. Vanden Broek, [2011] O.J. No. 3592; aff’d [2012] O.J. No. 3582 (Div. Ct.))
Issue #3: Analysis
102In my view, Mr. Laubman, counsel for Lerners, accurately articulated the law on this issue in his factum.
103At no point in her evidence did Irene indicate that, whatever the nature of the allegedly confidential medical and financial information that she communicated to either Allison Dale or Mark Lerner, she told either of them that the information was confidential or that it could not be used against her.
104Having not done so, I accordingly find that Irene has failed to establish that, despite neither Allison Dale nor Mark Lerner being her lawyer, her communication to them or either of them of her allegedly confidential medical and financial information has not created a conflict of interest for them or, through them, Lerners.
105While not strictly necessary, and this analysis typically applies to situations where confidential information is given to a party’s former lawyer, I also find that, regardless of not being a Lerners client when she provided her allegedly “confidential medical and financial information” to Allison Dale and Mark Lerner, Irene has also failed to establish that the information that she provided to them was such that it was “relevant to the matter at hand.”
106In a case involving a former client, which distinguishes it from this case, the Ontario Court of Appeal held in Chapters v. Davies, Ward Beck LLP, [2001] O.J. No. 206, that the onus is on a person claiming that information communicated to a lawyer targeted for removal because of conflict was “sufficiently related” to the matter at hand. To do so, the claimant has to “demonstrate that the possibility of relevant confidential information having been acquired is realistic, not just theoretical,” by providing “an outline of the nature of the confidential information,” instead of “rest[ing] on a bald assertion.”
107What is known from Irene’s evidence is that, in October 2022, before the current matter was commenced, she provided Allison Dale with what she referred to as her “medical situation” and her “medical disabilities and their deterioration” in an effort to gain the assistance of Ms. Dale in her effort to remain in her mother’s residence. Later, on or about January 31, 2023, again before this litigation began, she told Ms. Dale in a chastising email that her receipt of a misdirected draft letter caused her “stress and migraines.”
108It is unclear what in particular about the information conveyed to Allison Dale during these interactions would be sufficiently related, or relevant, to the current proceeding.
109This is significant because, as has been noted, Irene has now provided voluminous documentation about her physical and mental heath issues since at least 2010 in this litigation. It is more likely than not that anything expressed by Irene to Allison Dale is encompassed by the productions thus far.
110As for the “confidential information” allegedly provided to Mark Lerner during her first meeting with him, Irene provided no other details beyond her assertion that Mark Lerner has “significant confidential medical and financial confidential information” about her and her litigation against RBC Dominion Securities because of his friendship with Hans. She made not effort to tie that friendship to Mr. Lerner’s acquisition of information about her. She also alleged that, during both of her contacts with Mark Lerner, she also discussed with him “the merits” of her proposed, at first, and later, ongoing litigation against RBC Dominion Securities.
111In Dye & Durham Limited v. Ingarra, 2024 FCA 76, the Federal Court of Appeal dismissed a claim that “relevant confidential information” was provided to a lawyer targeted for disqualification because of a conflict of interest where the allegations made by the party seeking the order were “generic”, “theoretical”, insufficiently described to be of assistance to the court, lacking in particularity, unsupported by any evidence, or rebutted by affirmative evidence from the lawyers whose involvement with Irene are the basis for the requested disqualification of Lerners.
112The very briefly described information provided by Irene certainly meets the descriptions of being vague, insufficiently described, lacking in particularity, and rebutted by affirmative evidence from the lawyers facing disqualification.
113Moreover, as to what Irene might have told Mark Lerner about her proposed litigation against RBC Dominion Securities, details of that litigation and the claims that Irene made in it are reported as follows in Slegers v. Sullivan, supra:
2 Ms. Slegers claims damages sounding in breach of contract, negligence and breach of fiduciary duty against her former investment advisor, Mr. Paul Sullivan, his supervisor, Mr. Bryan Vickers, and his employer, RBC Dominion Securities. She alleges that Mr. Sullivan failed to provide appropriate advice and management of her investments with RBC, leading to significant losses when the markets fell in 2008.
3 In her Claim Ms. Slegers pleaded that from September, 2003 until at least October, 2008, she maintained investment and trading accounts with RBC and Mr. Sullivan was her investment advisor during virtually all of that time. She also pleaded that she was sexually intimate with Mr. Sullivan from January, 2007 until the late summer or early fall of that year. Her pleading provides details of the relationship, including allegations about another woman and her discovery that the relationship was at an end when Mr. Sullivan went on vacation with the other woman (who was not named in the pleading). Ms. Slegers pleaded that Mr. Sullivan continued to act as her investment advisor during their period of intimacy.
4 Her pleading went further, describing the emotional and financial expectations she formed as a result of her intimate relationship with Mr. Sullivan, and tying them to her pleadings of financial loss….
Sullivan breached his contractual duties and his duties of care to Slegers in that he: … (h) placed himself in a conflict-of-interest position by pursuing a personal and sexual relationship with Slegers while continuing to advise her on her investments; and, (i) placed himself in a further conflict of interest position by not terminating the advisor-client relationship after Slegers ended their personal relationship.
In addition, Sullivan, by reason of his personal relationship with Slegers and his expertise in the investment field, owed Slegers fiduciary duties to advise Slegers carefully, fully, honestly, and in good faith. In giving Slegers the advice set forth above, Sullivan breached his fiduciary duties to Slegers.
114That litigation was about investment losses incurred by Irene long before she began to reside with Hans in 2015, [5] as she alleges in her pleadings. She has not made clear whether she was even in a relationship with Hans in 2008. If she was, the fact that she was also in a relationship with her broker makes for interesting speculation about her behaviour, but is of no relevance to her claims in this case.
115The agreements which are the subject of this litigation were signed in 2017 and 2021. I fail to see, without much more information from her, what Irene could possibly have told Mark Lerner about her financial losses and her relationship with her broker in 2008 that would be of the slightest relevance to this litigation. The onus was on her to illuminate that relevance for me. She has failed to do so.
116In the result, I conclude that, even if Irene did convey confidential information to Allison Dale and Mark Lerner during her contacts with them, she has failed to show any relevance between the information she provided to them and her claims in this matter.
Issue #4: Is the chance that Allison Dale may be a witness in this litigation sufficient to disqualify Lerners from representing Hans?
117As with the other issues, the parties disagree.
118Mr. Sneddon asserts in his factum that “[w]here it is likely that a lawyer may be called as a witness in the proceeding, a conflict of interest is said to exist. Further, where this is the case, the issue falls squarely within the ambit of the Rules of Professional Conduct.”
Issue #4: The Law
119I firstly reject the suggestion that I am bound by the Rules of Professional Conduct, although I do acknowledge that the Supreme Court in MacDonald Estate v. Martin held as follows:
- …The courts, which have inherent jurisdiction to remove from the record solicitors who have a conflict of interest, are not bound to apply a code of ethics. Their jurisdiction stems from the fact that lawyers are officers of the court and their conduct in legal proceedings which may affect the administration of justice is subject to this supervisory jurisdiction. Nonetheless, an expression of a professional standard in a code of ethics relating to a matter before the court should be considered an important statement of public policy.
120In Lepan Estate v. Lofranco Chagpar Barristers, 2021 ONSC 1757, in upholding a motion decision not to disqualify a lawyer from representing a client because of a risk that the lawyer may become a witness, the Divisional Court wrote:
27 In Essa (Township) v. Guergis, 15 O.R. (3d) 573 (Div. Ct.), this Court outlined a non-exhaustive set of factors that a Court may utilize in considering whether counsel should be disqualified for being a witness. Those factors have been consistently applied in Ontario and include the following:
(a) the stage of the proceedings;
(b) the likelihood that the witness will be called;
(c) the good faith (or otherwise) of the party making the application;
(d) the significance of the evidence to be led;
(e) the impact of removing counsel on the parties' right to be represented by counsel of choice;
(f) whether the trial is by judge or jury;
(g) the likelihood of a real conflict arising or that the evidence will be tainted; and
(h) who will call the witness if, for example, there is a probability that counsel will be in a position to cross-examine a favourable witness, a trial judge may rule to prevent that unfair advantage arising;
(i) the connection or relationship between counsel, the prospective witness and the parties involved in the litigation.
28 However, O'Brien J. noted, at page 582 of Essa, that the "courts should be reluctant to make what may be premature orders preventing solicitors from continuing to act" and that, at page 583"all applications to remove solicitors from the record are not brought with the purest of motives."
32 …the decision of Master Glustein (as he then was) in Mazinani v. Bindoo, 2013 ONSC 4744, based on a thorough review of the authorities, cautions that the decision to deprive a litigant of counsel of choice should not be made prematurely and that consideration should be given to these factors, among others:
(x) Courts should be reluctant to make what may be premature orders preventing lawyers from continuing to act. If the evidence does not necessarily have to come from the lawyer and may be obtained through admissions or documentary productions, a removal order will be premature;
(xi) If there is some doubt or "merely a potential" that a lawyer will be called as a witness at trial, the courts should be more generous in allowing the lawyer to remain on the record and deferring the matter until after discoveries or leaving the matter to the trial judge;…
(xiv) Certainty that a lawyer will be called as a witness is not required. Rather, the court must consider the likelihood of the lawyer being called as a witness;
(xv) "It is not sufficient for a moving party to suggest opposing counsel is a potential witness or allege only that he or she might provide material evidence. Rather, it must be established that there is a real basis to believe counsel can likely, or probably, provide material evidence";
(xvii) The court should approach a motion to remove a lawyer of record who may be a witness at trial by following a flexible approach and consider each case on its own merits. [Emphasis added; citations omitted.]
Issue #4: Analysis
121I have already noted the steps that Lerners is prepared to take should Allison Dale be called as a witness by Irene. [6]
122However, since she was not Irene’s lawyer and is not bound by confidentiality to her, I fail to see what value her evidence would have with respect to the issues for which Irene seeks to disqualify Lerners. Her share of her mother’s estate is known and acknowledged.
123Also, if Irene would seek to call Allison Dale to confirm that she had been told of Irene’s medical conditions, I query whether that would amount to calling evidence of a prior consistent statement which, subject to limited exceptions, is inadmissible. In any event, it appears that Irene’s medical conditions are well documented.
124Having regard to the factors taken from Essa (Township) v. Guergis, I find that it is far too early to determine whether Allison Dale will be called, or even would be necessary, as a witness in this case, or even to determine whether her evidence would be material to the issues in this case.
125In Family Court, trials are always heard by a judge without a jury.
126The risk of Allison Dale being cross-examined has been eliminated by the undertakings from Mr. Smith on behalf of Hans.
127Moreover, her evidence about Irene’s mother’s estate and Irene’s share of it could be established in other ways, including by a Request to Admit.
128Beyond these, Irene also made no attempt to “establish that there is a real basis to believe [that Allison Dale] can likely, or probably, provide material evidence.”
129Accordingly, I reject as premature Irene’s attempt to disqualify Lerners on the basis that Allison Dale might be called as a witness. For what this observation might be worth, I also note that, unless something more emerges, I can see no reason that Allison Dale would need to be a witness at all.
Conclusion and Order
130For the above reasons:
- The motion of the Respondent, Irene Slegers, requesting that Lerners LLP be removed as solicitors of record for Hans Jonckheere is hereby dismissed.
Costs
The parties are strongly encouraged to settle the issue of costs. If they cannot, they may forward written submissions to me through the Family Court Judicial Assistants at London.
The parties’ costs submissions shall not exceed five typewritten pages in Times New Roman 12-point font, with double spacing.
The parties’ costs submissions shall be accompanied by any offers to settle, whether accepted or not, together with a list of all persons who worked on the matter for whom a claim for costs is being made, their position, the amount being sought for costs in respect of that person, and a complete and clear description of the work undertaken by each person for whom a claim for costs is being made.
Mr. Sneddon shall also indicate what he has billed Irene Slegers for this motion.
The submissions of the parties are to be served and forwarded to the Family Court Judicial Assistants at London by no later than 15 days from the date that this judgment is released to them.
Should either party wish to respond to the written costs submissions of the other, each such party shall serve and forward their responding submissions to the Family Court Judicial Assistants at London by no later than 30 days from the date that this judgment is released to them.
If no costs submissions are received from at least one of the parties by the date that is 15 days from the date that this judgment is released to the parties, costs shall be deemed to have been settled, neither party shall be entitled to an order for costs, and no such order shall thereafter be made.
“Justice T. Price”
Date: March 17, 2025
Endnotes
1In her affidavit, Ms. Dale also explained that the notes to which she referred in order to prepare her affidavit were kept in hard copy in the physical file at the Strathroy office of Lerners, that her notes are not typically accessible to anyone in Lerners’ Toronto office, and that neither Mr. Smith nor anyone else on his behalf or on behalf of the Applicant had requested any portion of the files relating to Theodora’s estate planning, will preparation or estate administration.
2Irene deposed that she did “not know what my mother told Allison Dale about my medical condition.”
3This was a well-known fact amongst the legal community in London. I had informed counsel before the motion began about my knowledge of this fact, out of an abundance of caution that my knowledge not be seen as tainting me from hearing the motion since, when I was in practice, I had also represented RBC to a far lesser extent, in a different firm, and knew of Lerners’ relationship with RBC. Counsel agreed that my knowledge of this fact was not disqualifying for me.
4Slegers v. Sullivan, 2009 CarswellOnt 7413.
5Answer of Irene Slegers dated February 16, 2024.
6Supra, paragraph 43.