SUPERIOR COURT OF JUSTICE - ONTARIO

Hunter Assaly, a minor, Carson Assaly, a minor,
Maximiliam Assaly, a minor, Chloe Assaly, a minor,
Angeli Assaly, a minor, and Chad Assaly, a minor,
by their Litigation Guardian Karen Assaly

v.

Gloria Assaly and Robert Assaly,
in his capacity as Estate Trustee
of The Estate of Thomas C. Assaly,

2012 ONSC 5859

COURT FILE NO.: 09-45538 (Ottawa)
DATE: 2012/10/16

RE:

Thomas Theodore Assaly, Conor Assaly, a minor, Hunter Assaly, a minor,
Carson Assaly, a minor, Maximilliam Assaly, a minor, Chloe Assaly, a minor, Angeli Assaly, a minor, and Chad Assaly, a minor, by their Litigation Guardian Karen Assaly, Plaintiffs(Moving Parties)

AND:

Gloria Assaly, Defendant(Respondent)

AND:

Robert Assaly, in his capacity as Estate Trustee of The Estate of Thomas C. Assaly, Third Party (Respondent)

BEFORE: Justice Rick Leroy

COUNSEL:
Richard E. Anka, Counsel for the Plaintiffs (Moving Parties)

Rodrigo Escayola, Counsel for the Defendant (Respondent)

Gail S. Nicholls, Counsel for the Third Party (Respondent)

HEARD: October 4 th , 2012

ENDORSEMENT ON LEAVE TO APPEAL

[ 1 ] This is the plaintiffs’ motion under Rule 62 for leave to appeal orders made by Mr. Justice Beaudoin on March 8, and April 25, 2012 by which he removed Andrew Lister and his law firm as solicitors of record for the plaintiffs and then awarded costs.

[ 2 ] Rule 62.02(4) provides that Leave to appeal shall not be granted unless,

(a) There is conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) There appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that in his or her opinion, leave to appeal should be granted.

[ 3 ] Counsel for the defendant and third party submit that this motion fails, from the beginning, because the plaintiffs did not comply with Rule 62.01(2) and that they served a Notice of Abandonment of the motion for leave. Given my decision on the motion merits, I do not need to comment on these submissions, other than to indicate that if the applicant plaintiff met either of the criteria set out in Rule 62.02(4), neither would, in fairness in the circumstances depicted in the material, be an impediment to leave. I will comment more on the issue of the Notice of Abandonment issue when I address costs of this motion.

[ 4 ] Justice Beaudoin applied the test mandated in Martin v. MacDonald Estate (Gray), 1990 32 (SCC) , [1990] 3 S.C.R. 1235. On the facts placed before Justice Beaudoin, JES asserted that he had confidential information attributable to a long standing solicitor-client relationship relevant to the matter at hand – Volume 2 tab 2k, tab 3 paragraph 48. That satisfies the first question in the Martin test. When an experienced lawyer declares a conflict of interest, the court accepts that as accurate without delving into the details. JES did not testify on the motion so the isolation of what it was that he felt compromised his position is speculative at best. As Mr. Justice Sopinka observed, the use of confidential information is usually not susceptible of proof. No one challenged the premise that JES had a conflict of interest at the material times.

[ 5 ] On the facts placed before Justice Beaudoin, there was ample reason to believe that the confidential information would be used to the prejudice of the client. Notwithstanding the assertions of firm separation, the record contained copies of memoranda confirming information flow and that satisfies the second question in the Martin test.

[ 6 ] The facts and law have not changed since Justice Beaudoin’s decision. Everything adduced and submitted on the motion for leave was available with reasonable diligence when the first motion was argued. What has changed is that the plaintiffs decided to change counsel who brings another perspective on the JES conflict of interest and the flow of information. He argues, persuasively, based on his conclusion that the limited retainers outlined in the plaintiffs’ materials is the extent of the potential for the conflict, that JES does not have a conflict of interest with defendant or third party in respect to the core issues in the main litigation and that the information flow between JES, as will draftsperson, and Lister, as beneficiary counsel, is not confidential. As noted, however; that conclusion is not necessarily the correct one. The solicitor-client relationship can involve far ranging flows of information that are well outside the ambit of limited retainers. The court does not have the benefit of seeing into JES’s mind and memory to assess whether his conclusion, that he was in a conflict of interest situation, was valid or not. It is enough that he declared. He is an experienced and mindful lawyer in this community. Based on the information presented to Justice Beaudoin, there is no good reason to doubt the correctness of these decisions on the merits or as to costs.

[ 7 ] In the circumstances presented to Justice Beaudoin, the allocation of costs and responsibility for payment is well within his discretion and the reasons regarding the award of costs are above reproach.

[ 8 ] The motion for leave to appeal Justice Beaudoin’s orders is dismissed.

Costs of the Motion for leave to appeal

[ 9 ] The parties are to bear their own costs. The defendant and third party offered to settle this motion on a without costs basis in May 2012. The plaintiffs delivered a Notice of Abandonment that was conditional on all parties bearing their own costs at the beginning of July 2012, which the responding parties then refused. My decision to deny costs to the responding parties rests on Rules 57.01(e) and (f).

Justice Rick Leroy

Date: October 16 th , 2012