DATE: 20051207
DOCKET: C41511
COURT OF APPEAL FOR ONTARIO
RE:
GENEST MURRAY DESBRISAY LAMEK ALAN FURBACHER, VACLAV FURBACHER, CORRECT BUILDING CORPORATION, ORANGEVILLE, INDUSTRIAL & COMMERCIAL PARKS LTD., AURORA BUSINESS PARKS LIMITED, 727075 ONTARIO LIMITED and CORRECT CONSTRUCTION COMPANY LIMITED –AND BETWEEN- ALAN FURBACHER, VACLAV FURBACHER, CORRECT BUILDING CORPORATION, ORANGEVILLE, INDUSTRIAL & COMMERCIAL PARKS LTD., AURORA BUSINESS PARKS LIMITED, 727075 ONTARIO LIMITED and CORRECT CONSTRUCTION COMPANY LIMITED
BEFORE:
LASKIN, SHARPE and MACFARLAND JJ.A.
COUNSEL:
Alan Hutchinson and
Stephanie Campanaro
for the appellants
Peter C. Wardle
for the respondents
HEARD & RELEASED ORALLY:
November 30, 2005
On appeal from the judgment of Somers J. of the Superior Court of Justice dated February 11, 2004 made at Toronto, Ontario.
E N D O R S E M E N T
[1] The appellants submit that the respondent law firm breached its fiduciary duty in two ways: first, it acted when it had conflicts of interest; and second, it did not give the clients the zealous representation and dedication to which they were entitled. We do not accept either branch of this submission.
- Conflict of Interest
[2] The appellants claim that the law firm was conflicted because it was also acting for Ernst & Young Inc. The appellants contend that they wished to leave open the possibility of suing Ernst & Young, and that therefore the law firm should have disclosed its ongoing retainer by Ernst & Young Inc. The appellants’ contention must fail in the light of the trial judge’s findings of fact at para. 38 of his reasons. Those findings are supported by the evidence of Mr. Murray and Mr. McKinnon, and by the clients’ fax of January 12, 1995.
[3] Although there was other evidence from which a judge might reach a different conclusion, we are not persuaded that the trial judge’s findings are tainted by any palpable or overriding error.
[4] Accordingly, we decline to interfere with these findings.
[5] The appellants also argue that the firm had a conflict of interest because two directors of National Trust whom the appellants also wished to sue had been retained by the firm as witnesses in other litigation. However, as the retainer agreement made clear, Genest Murray agreed to act for the appellants only on condition that these two directors would not be sued, and that the outstanding action against them would be discontinued. The retainer agreement shows that the appellants accepted this condition.
[6] We do not consider that the appellants’ later attempt to qualify this condition with the words “if our case is not impaired” improves their position. The appellants understood from the outset that Genest Murray would not take this brief if doing so meant suing the two directors. The appellants agreed to the law firm’s condition.
[7] For these reasons, we are not persuaded that the trial judge erred in finding no conflict of interest.
- Lack of zealous representation
[8] Mr. Furbacher obviously was a difficult and demanding client, and difficulties arose between him and Mr. Murray over the appropriate strategy for defending the law suit. Eventually the relationship broke down, and by October 1995, Mr. Murray advised Mr. Furbacher to get new counsel. Mr. Murray wrote again to the same effect in November 1995. Still, the appellants waited five months to retain another firm.
[9] On appeal, the appellants say that Mr. Murray should have withdrawn at the beginning of August 1995, because from then onwards he ceased to provide the appellants with zealous representation. We are not satisfied that Mr. Murray’s evidence about his difficulties with the client shows that he failed to act zealously and in the client’s best interests.
[10] Accordingly, we decline to give effect to this ground of appeal.
- Judgment against the individual appellants
[11] At the conclusion of his argument, counsel for the appellant submitted that even if we dismiss the appeal, judgment should not go against Alan Furbacher and his father, Vaclav Furbacher. The trial judge considered this argument, and rejected it at para. 45 of his reasons. We think that he was right to do so.
[12] Both father and son were sued, and the law firm’s retainer extended to all of the defendants. This argument therefore fails.
[13] The appeal is accordingly dismissed with costs fixed in the amount of $15,000 inclusive of disbursements and GST.