SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-12-468882
DATE: 20130920
RE: Jajj v. 100337 Canada Limited cob as BJ International/BJ Supermarket
BEFORE: Master Glustein
COUNSEL:
K. Alexander for the plaintiff
G. Sidlofsky for the defendant
HEARD: September 11, 2013
REASONS FOR DECISION
Nature of motion and overview
[1] The defendant 100337 Canada Limited cob as BJ International/BJ Supermarket (“BJ Supermarket”) brings this motion to remove Kenneth Alexander (“Alexander”) as lawyer of record for the plaintiff Jaswinder Kaur Jajj (“Jaswinder”).
[2] This motion raises a novel issue as to the applicable test to remove a lawyer of record when the party seeking removal of the lawyer of record consulted with another lawyer on the same or sufficiently related matter and that latter lawyer works in association with the lawyer of record.
[3] There has been a considerable volume of case law arising from the situation in which a former client seeks removal of a law firm since a partner or associate in that law firm obtained confidential information from the former client in the same or sufficiently related matter, arising after the leading case of MacDonald Estate v. Martin, 1990 32 (SCC), [1990] S.C.J. No. 41 (“MacDonald Estate”). However, counsel provided no authority to the court as to how the law in MacDonald Estate would apply to lawyers who work in an association. Consequently, I deal with this issue as a matter of first instance.
[4] In MacDonald Estate, the Supreme Court held that:
(i) If the client satisfies the court that there existed a previous relationship with the lawyer which is sufficiently related to the retainer at issue, the court should infer confidential information was imparted unless the lawyer satisfies the court that no information was imparted which could be relevant. The Supreme Court held that this would be a difficult burden to discharge, since the lawyer would have to do so without revealing the specifics of the privileged communication; and
(ii) If a lawyer had relevant confidential information from the client, that lawyer could not act against the client in that matter.
[5] With respect to protecting the confidentiality of the relationship between a lawyer and his or her former client, there should be no distinction based on how a lawyer practices, whether as a sole practitioner, lawyer in a law firm, or lawyers with separate practices sharing premises in an association. Consequently, I apply and adopt both of the above principles in MacDonald Estate to a lawyer who works in association with other lawyers.
[6] However, the novel legal issue arises in this case because BJ Supermarket did not meet with Alexander, but instead, BJ Supermarket (through individuals defined below as the Juejar Group) met with Kevin Fox (“Fox”), another lawyer who works in association with Alexander and other lawyers under the name of Davenport Law Group (“Davenport”).
[7] In MacDonald Estate, the Supreme Court held that a reasonably informed person would infer that partners and associates in a law firm discuss files, and as such, a law firm would have to establish that protective measures were put into place to prevent the disclosure of confidential information, in order to avoid removal when the former client provided relevant confidential information to another partner or associate. The Supreme Court held that conclusory statements that a lawyer did not speak to anyone in the firm about the matter, offered by either (i) the initial lawyer who met with the client, (ii) the lawyer of record, or (iii) any other member of the firm, would not be sufficient.
[8] For the reasons I discuss below, I find that the same inference cannot be applied to lawyers who have separate practices, even if they share common premises and expenses by working in association.
[9] Lawyers with separate practices who work in association should not be presumed to be discussing the file with other separate practitioners who share premises or share some support staff. Such a presumption would be contrary to the lawyer’s professional and ethical obligations. Consequently, a reasonably informed client would not expect his or her lawyer to share confidential information with any other lawyer in the association, unlike the situation in MacDonald Estate in which partners and associates work in a law firm and the client’s reasonable expectation is that all resources of the firm are available to assist the client.
[10] Consequently, the requirement under MacDonald Estate that the partner or associate acting on the file establish protective measures to prevent disclosure of confidential information ought not to apply to lawyers who have separate practices and work in an association, just as it would not apply if the lawyers had separate practices and did not share premises. In fact, even disclosing in a conflict check system that a lawyer was consulted or retained would violate the independent practitioner’s professional obligation of confidentiality to his or her client.
[11] Without a presumption of disclosure of confidential information, the court must review the evidence to determine whether the lawyers in the association have separate practices. If the lawyers have separate practices and there is no evidence that confidential information was disclosed, removal is not appropriate and permitting the lawyer of record to remain on record is consistent with the values discussed in MacDonald Estate of (i) the high integrity of the legal profession and (ii) the importance of a client’s right to choose a lawyer. Such a conclusion is also consistent with the desirability of permitting lawyers with separate practices to work in association.
[12] On the evidence in this case, it is not contested that (i) Alexander and Fox had separate practices, separate bank accounts, and separate conflict check systems and (ii) Fox never discussed with Alexander the issues raised in the meeting between BJ Supermarket and Fox, other than Fox indicating that he provided general employment advice. Alexander obtained the file through a referral from an unrelated lawyer.
[13] For these reasons, I reject BJ Supermarket’s submission that the test applicable to law firms under MacDonald Estate should apply to lawyers who work in association. While I find that Fox received confidential information from BJ Supermarket about the same matter which is now the subject of the action by Jaswinder, I accept the evidence of Fox summarized above and dismiss the motion to remove Alexander as lawyer of record because I am satisfied that a reasonably informed person would not perceive a conflict in Alexander acting against BJ Supermarket when Alexander had a separate practice and never discussed any confidential information with Fox.
Evidence
[14] I rely on the evidence from the affidavits of (i) Juejar Jajj (“Juejar”), an officer of BJ Supermarket who swore the affidavit in support of BJ Supermarket’s motion, and (ii) Fox, who swore the affidavit in support of Jaswinder. Neither affiant was cross-examined so the factual evidence is largely uncontested, although Fox and Juejar differ on some evidence as to what was discussed at the meeting between them and whether any confidential information was disclosed.
[15] I summarize the evidence below:
(i) BJ Supermarket is a family business. Balwant Sing Jajj (“Balwant”) is a former director of BJ Supermarket and the brother of Juejar. Jaswinder is Balwant’s wife;
(ii) As a result of a series of events and arguments, there was a breakdown in the relationship between the Jajj family members. Balwant and Jaswinder retained a lawyer to make demands of BJ Supermarket;
(iii) As a result, Juejar, one of his sisters (Sulinder Gill), and their parents sought legal advice respecting issues pertaining to BJ Supermarket including (a) BJ Supermarket’s shareholding structure, (b) potential claims by and against Balwant, and (c) a potential claim that they anticipated would be made by Jaswinder against BJ Supermarket (the “Issues”);
(iv) Juejar, Sulinder Gill, and their mother (the “Juejar Group”) met with Fox on August 7, 2012 to obtain legal advice on the Issues. Fox’s business card indicated that (a) he was a lawyer with “Davenport Law Group, Barristers & Solicitors” and (b) his email address was kfox@davenportlaw.ca;
(v) Juejar led evidence that the Juejar Group provided Fox with a copy of Jaswinder’s pensionable earning statements and Fox reviewed BJ Supermarket’s minute books;
(vi) Fox denies that he “received” the pensionable earning statements, but does not state that the Juejar Group did not “provide” the statements to him. Fox led no evidence to contradict BJ Supermarket’s evidence that Fox reviewed BJ Supermarket’s minute books;
(vii) Juejar led evidence that the Juejar Group discussed the Issues with Fox “at length”. The duration of the meeting was not in evidence;
(viii) Juejar led evidence that Fox provided the Juejar Group with legal advice on the Issues and in particular:
(a) the Juejar Group “specifically discussed our views concerning Jaswinder’s potential claim against the company and what BJ Supermarket ought to do pending receipt of a claim”;
(b) “Fox provided specific advice regarding Jaswinder’s employment status that we relied upon for our subsequent actions”; and
(c) “[i]n addition to Jaswinder’s anticipated claim, we discussed with Mr. Fox the potential shareholder dispute with Balwant stemming from a demand letter we received from his lawyer, and which we provided to Mr. Fox. The issues concerning Balwant form part of this action as set out in the counterclaim”;
(ix) Fox states that he only provided “general employment law advice” and that while Juejar and his sister Sulinder Gill “raised matters related to the family corporation”, “I told them that I did not handle corporate matters and referred them to other counsel outside of the Davenport Law Group”;
(x) Fox states that the meeting was a “consultation” and that he was “never retained” by BJ Supermarket. Fox adds that “I was not given any confidential information regarding the claim in this matter”;
(xi) Fox rendered an invoice the same date (August 7, 2012) to BJ Supermarket for his time at the meeting. The letterhead on the invoice was entitled “Davenport Law Group” with further information on the letterhead stating “Kevin Fox, Barrister & Solicitor”, and with Fox’s email address of kfox@davenportlaw.ca. Fox’s name was set out at the bottom of the invoice;
(xii) The invoice was titled “Re: Consultation Meeting on Employment Law Matter”;
(xiii) BJ Supermarket paid the invoice by cheque to “Kevin Fox” on the same date of August 7, 2012;
(xiv) On November 29, 2012, Jaswinder issued a claim for (a) wrongful dismissal and (b) damages for overtime pay. Jaswinder retained Alexander as her lawyer;
(xv) Alexander obtained the file through a referral from Chris Wirth, a lawyer who acts for Jaswinder “in the commercial aspect of the case, of which [Fox] know[s] nothing about”. Alexander did not obtain the file from Fox;
(xvi) The statement of claim sets out “Davenport Law Group, Barristers and Solicitors” as lawyers for Jaswinder, with Alexander’s name as the lawyer of record;
(xvii) On December 4, 2012, BJ Supermarket’s counsel wrote to Alexander to object to Alexander acting for Jaswinder since “your firm is in a conflict of interest respecting the above noted claim”;
(xviii) BJ Supermarket issued a statement of defence and counterclaim on January 11, 2013 in which BJ Supermarket alleged that Jaswinder was not an employee and was not terminated, or in the alternative that Jaswinder resigned and did not work the hours or years claimed or was terminated for cause. BJ Supermarket counterclaimed against Jaswinder and Balwant for breach of fiduciary duty including misappropriation of funds and goods from the supermarket and establishing or pursuing a business to compete against the supermarket;
(xix) Alexander and Fox “work in association under the name Davenport Law Group along with other lawyers; however, we have completely separate practices, separate bank accounts, and separate conflicts search system”; and
(xx) Fox states that “I have not discussed the issues that were discussed in the consultation I had with Juejar Jajj and Sulinder Gill with Kenneth Alexander other than to indicate I provided general employment advice”.
Analysis
(a) General principles and test applicable in MacDonald Estate to removal motions when a lawyer acts against a former client
[16] Both parties rely on the decision of the Supreme Court in MacDonald Estate[^1] as setting out the applicable test for removal of a lawyer acting against a former client.
[17] In MacDonald Estate, the conflict issue arose when the appellant’s (defendant’s) then lawyer Mr. Twaddle (later appointed to the bench in 1985) was assisted by Kristin Dangerfield (“Dangerfield”) an articling student (later a junior associate) in an action by the respondent (plaintiff) for an accounting against the appellant. Dangerfield acted for the appellant on the matter between 1983 and 1985 and was “actively engaged in the case and was privy to many confidences disclosed by the appellant” to senior counsel. In 1985, Dangerfield joined a law firm when Mr. Twaddle was appointed to the bench. In 1987, Dangerfield joined Thompson, Dorfman, Sweatman (“TDS”), the firm who was acting for the respondent. The appellants brought a motion to remove TDS as the respondent’s lawyer of record (MacDonald Estate, at para. 2).
[18] Dangerfield and senior members of TDS swore affidavits that the case (i) had not been discussed since Dangerfield had joined TDS and (ii) would not be discussed (MacDonald Estate, at para. 3).
[19] In MacDonald Estate, Sopinka J. set out the following competing values to be considered by the court in determining whether a lawyer is disqualified from continuing to act for a client by reason of conflict of interest (MacDonald Estate, at para. 13):
(i) “the concern to maintain the high standards of the legal system and the integrity of our system of justice”,
(ii) “the countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause”, and
(iii) “the desirability of permitting reasonable mobility in the legal profession”
(See also Chapters Inc. v. Davies, Ward & Beck LLP, 2001 CarswellOnt 178 (C.A.) at paras. 18-19 in which Goudge J.A. summarizes the principles set out in MacDonald Estate that are to be considered by the court).
[20] Sopinka J. held that the court on a removal motion must first consider whether the lawyer obtained confidential information in the course of a previous relationship which is sufficiently related to the present retainer. If such evidence is established, the lawyer would face a “difficult” and “heavy” burden to satisfy the court that no information was imparted that could be relevant. Sopinka J. held (MacDonald Estate, at para. 46):
In my opinion, 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. 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. [Emphasis added.]
[21] Sopinka J. then held that if a lawyer has relevant confidential information, that lawyer cannot act against the former client. Sopinka J. held (MacDonald Estate, at para. 47):
The second question is whether the confidential information will be misused. A lawyer who has relevant confidential information cannot act against his client or former client. In such a case the disqualification is automatic. No assurances or undertakings not to use the information will avail. The lawyer cannot compartmentalize his or her mind so as to screen out what has been gleaned from the client and what was acquired elsewhere. Furthermore, there would be a danger that the lawyer would avoid use of information acquired legitimately because it might be perceived to have come from the client. This would prevent the lawyer from adequately representing the new client. Moreover, the former client would feel at a disadvantage. Questions put in cross-examination about personal matters, for example, would create the uneasy feeling that they had their genesis in the previous relationship. [Emphasis added.]
[22] Consequently, on any removal motion for conflict of interest, the court must consider the competing values at issue. Further, the court in MacDonald Estate held that the same lawyer who received relevant confidential information from a client cannot act against that former client.
(b) The “reasonably informed person” test in MacDonald Estate
[23] In MacDonald Estate, Sopinka J. adopted the test of a “reasonably informed person” or a “reasonably informed member of the public” as the basis for the test for removal of lawyer of record for conflict of interest. Sopinka J. held (MacDonald Estate, at paras. 44 and 46):
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 …
the court's degree of satisfaction [must] be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed…
[24] Consequently, any removal motion must be considered from the perspective of the “reasonably informed person”.
(c) General principles and test applicable in MacDonald Estate to removal motions when a law firm acts against a former client of one of the lawyers in the firm in the same or sufficiently related matter
[25] In MacDonald Estate (as in the present case), there was no issue of the same lawyer seeking to act against the former client. In MacDonald Estate, the issue was whether the TDS law firm could act against the former client of Dangerfield (on the same matter) after Dangerfield joined TDS.
[26] Sopinka J. held that a reasonably informed person would infer that partners and associates in a law firm discuss files and as such disclose confidential information to each other.
[27] Sopinka J. expanded the test set out at paragraphs 20 and 21 above to include “partners or associates in the firm” since there is “a strong inference that lawyers who work together share confidences” (MacDonald Estate, at paras. 48-49).
[28] Sopinka J. permitted a law firm to lead evidence that “all reasonable measures have been taken to ensure that no disclosure will occur by the ‘tainted’ lawyer to the member or members of the firm who are engaged against the former client”, including evidence of conflict walls and cones of silence (MacDonald Estate, at para. 49).
[29] Sopinka J. held that “a fortiori undertakings and conclusory statements in affidavits without more are not acceptable” (MacDonald Estate, at para. 50). A law firm seeking to act against a client in the same or sufficiently related matter could not rebut the presumption by stating that no discussions took place. In MacDonald Estate, there was no evidence of protective measures and as such Sopinka J. allowed the appeal and removed TDS.
[30] Consequently, the result of the decision in MacDonald Estate as it applies to a law firm acting against a client formerly represented by a member of the firm in the same or sufficiently related matter is that (i) there is a presumption that partners and associates in a law firm discuss files and confidential information but (ii) the presumption can be rebutted by evidence that all reasonable measures were taken to avoid disclosure of confidential information.
(d) Application of the principles in MacDonald Estate to removal motions when a member of an association acts against a former client of another member of the association in the same or sufficiently related matter
[31] The application of the principles in MacDonald Estate to removal motions when a member of an association of lawyers acts against a former client of another member of the association in the same or sufficiently related matter is the novel question before this court, given that counsel were not aware of any authority on the issue.
[32] I apply the above principles from MacDonald Estate to consider the issue and set out my analysis below.
(i) The values to be considered by the court
[33] In considering the “competing values” to be assessed by the court on a removal motion involving lawyers who work in association, the first two values considered by the court in MacDonald Estate continue to apply. The court must consider (i) “the concern to maintain the high standards of the legal system and the integrity of our system of justice” and (ii) “the countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause” (MacDonald Estate, at para. 13).
[34] The value discussed in MacDonald Estate of “the desirability of permitting reasonable mobility in the legal profession” (MacDonald Estate, at para. 13) does not apply in the context of a removal motion when a member of an association of lawyers acts against a former client of another member of the association in the same or sufficiently related matter. However, a similar value arises in that there is desirability in permitting lawyers with separate practices to work with other lawyers in association, while maintaining their role as independent lawyers who are not in a law firm and are acting as individual lawyers on behalf of their clients.
(ii) The test to determine whether the former client communicated confidential information should be the same as in MacDonald Estate
[35] The first element of the MacDonald Estate analysis requires the court to consider whether confidential information was communicated to a lawyer by a former client. I find that the test in MacDonald Estate to determine this issue ought to apply in the same way regardless of whether the lawyer has a separate practice in an association, is in his or her own practice, or is a partner or associate in a law firm.
[36] That test provides (MacDonald Estate, 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.
[37] There ought to be no difference in how the court assesses whether the former client communicated confidential information to a lawyer regardless of whether the lawyer acts as a practitioner in or outside an association, or in a law firm. It must remain a “difficult burden to discharge” and a “heavy” burden, which can only be effected without disclosing confidential information (MacDonald Estate, at para. 46).
(iii) The prohibition against the same lawyer acting against the former client in the same or sufficiently related matter should be the same as in MacDonald Estate
[38] Further, the prohibition in MacDonald Estate against the same lawyer acting against a former client in the same or sufficiently related matter must continue to apply regardless of whether the lawyer is a practitioner acting in or outside an association or a partner or associate in a law firm.
[39] The statement by Sopinka J. that “A lawyer who has relevant confidential information cannot act against his client or former client. In such a case the disqualification is automatic” (MacDonald Estate, at para. 47) applies regardless of the nature of the lawyer’s practice.
(iv) There should be no inference or presumption that lawyers with separate practices who work in an association disclose confidential information
[40] I find that the “strong inference that lawyers who work together share confidences” as partners and associates in a law firm (MacDonald Estate, at paras. 48-49) ought not apply to lawyers with separate practices working in an association. Consequently, I find that a lawyer working in an association can lead evidence that the lawyers have separate practices, and if such evidence is led, the court should not (i) presume that disclosure was made or (ii) as a result, require evidence of protective measures to rebut the presumption as would be required for partners or associates in a law firm. I review the reasons for my conclusion below.
[41] I rely on the lawyer’s professional and ethical duty of confidentiality with respect to any information acquired in the course of the professional relationship. Rule 2.03(1) of the Rules of Professional Conduct of the Law Society of Upper Canada states:
2.03 (1) A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless expressly or impliedly authorized by the client or required by law to do so. [Emphasis added.]
[42] The Commentary to Rule 2.03(1) provides more detail as to the purpose and importance of the Rule:
A lawyer cannot render effective professional service to the client unless there is full and unreserved communication between them. At the same time, the client must feel completely secure and entitled to proceed on the basis that, without any express request or stipulation on the client's part, matters disclosed to or discussed with the lawyer will be held in strict confidence.
This rule must be distinguished from the evidentiary rule of lawyer and client privilege concerning oral or documentary communications passing between the client and the lawyer. The ethical rule is wider and applies without regard to the nature or source of the information or the fact that others may share the knowledge.
A lawyer owes the duty of confidentiality to every client without exception and whether or not the client is a continuing or casual client. The duty survives the professional relationship and continues indefinitely after the lawyer has ceased to act for the client, whether or not differences have arisen between them.
Generally, the lawyer should not disclose having been consulted or retained by a particular person about a particular matter unless the nature of the matter requires such disclosure.
A lawyer should take care to avoid disclosure to one client of confidential information concerning or received from another client and should decline employment that might require such disclosure.
A lawyer should avoid indiscreet conversations, even with the lawyer's spouse or family, about a client's affairs and should shun any gossip about such things even though the client is not named or otherwise identified. Similarly, a lawyer should not repeat any gossip or information about the client's business or affairs that is overheard or recounted to the lawyer. Apart altogether from ethical considerations or questions of good taste, indiscreet shop-talk between lawyers, if overheard by third parties able to identify the matter being discussed, could result in prejudice to the client. Moreover, the respect of the listener for lawyers and the legal profession will probably be lessened. [Emphasis added.]
[43] A client who retains a lawyer in a law firm engages the expertise of that firm, and a reasonably informed client expects that the lawyer in the law firm who acts for the client will (i) conduct a common conflicts check to disclose the potential retainer and ensure no conflict arises with other clients of the law firm and (ii) speak to other lawyers in the firm about the client’s file, if it assists the client. While a specific partner or associate lawyer in a law firm may manage the file for the client, it is the law firm as a collective entity whose resources are available to the client. Consequently, the “strong inference that lawyers who work together share confidences” in a law firm as partners or associates is not only warranted for a law firm, but reasonably expected and desired by a client of a lawyer in a law firm.
[44] However, if there is evidence that the structure of the association consists of lawyers with separate practices, even if the lawyers share some common expenses such as support staff, rent, or other costs of operating a law practice, the court should not presume that lawyers in the association work as partners and associates in a law firm.
[45] Each lawyer with a separate practice in an association is bound by Rule 2.03(1) not to disclose anything about the client to another lawyer in the association, even the fact of having been consulted or retained. Consequently, unlike in MacDonald Estate, it would be inappropriate to presume that a lawyer with a separate practice in the association who meets with a client would then (i) speak to another lawyer in the association about the matter or (ii) conduct a common conflicts check.
[46] Without a presumption of sharing confidences, the protective measures contemplated by Sopinka J. in MacDonald Estate do not logically follow. A common conflict check would be inappropriate, as the Commentary to Rule 2.03(1) notes that even the fact of a retainer should not be disclosed. Conflict walls and locks on file drawers to avoid potential conflict (which may be some appropriate protective measures for a law firm) would not be necessary protective measures for a lawyer who works in an association, as it would not be appropriate to presume that another lawyer in the association has access (or would seek access) to the files of the lawyer of record.
[47] Even if two lawyers in an association share an assistant, receptionist, or bookkeeper or meet socially in the office from time to time, there ought to be no presumption that the assistant, receptionist, or bookkeeper transmit confidential information, or that it is discussed on social occasions. If a common assistant or bookkeeper worked a few days each week for two lawyers with separate practices in separate locations, or if two lawyers with separate practices were friends but did not share premises, there would be no such presumption of disclosure either through work or socially. That analysis ought not to change simply because lawyers with separate practices share premises.
[48] BJ Supermarket relies on the presentation of the association as an entity which in several ways looks like a law firm. As I discuss above, Fox’s business card referred to him as a lawyer with “Davenport Law Group, Barristers and Solicitors”, the letterhead on which Fox rendered his invoice was titled “Davenport Law Group” (although it referred to Fox as “Barrister and Solicitor” in the singular form), and Fox’s email address was kfox@davenportlaw.ca. BJ Supermarket further submits that there was no evidence before the court that Fox and Alexander did not share support staff or expenses.
[49] I further note that even on the statement of claim and in the material filed with the court, the references to Jaswinder’s lawyer are to “Davenport Law Group” with Alexander referred to as a lawyer with Davenport.
[50] The presentation of an association as a collective entity could lead to a reasonable perception by a client that the lawyer is working in a law firm with other partners and associates. Unless there is evidence to satisfy the court that the lawyers in a “group” work in association with separate practices (as there is in the present case as I review at paragraph 58 below), the court cannot be satisfied that the “group” is not a law firm to which the presumption that lawyers disclose confidential information would apply. If there is no such evidence led as to the nature of the association, it may be appropriate for the court to apply the same presumption of disclosure as in MacDonald Estate (although that issue does not arise in the present case).
[51] However, when evidence is led that the lawyers acting in a group have separate practices and work in an association, the court can find that the lawyers do not work in a law firm structure. The test required under MacDonald Estate is that of a “reasonably informed person”, not the perception of a reasonable but uninformed person. If the lawyers work in separate practices, with separate bank accounts and separate conflict search systems, a reasonably informed person would not expect those lawyers to discuss files with each other – in fact, the opposite expectation should apply. To require lawyers with separate practices to implement common conflict search systems would be contrary to the professional confidentiality and non-disclosure obligations to which they are bound.
[52] In R. v. Neil, 2002 SCC 70 (“Neil”), Justice Binnie stated that the courts must link the duty of loyalty at issue on a removal motion to the policies it is intended to further. Binnie J. held (Neil, at para. 15):
[I]t is important to link the duty of loyalty to the policies it is intended to further. An unnecessary expansion of the duty may be as inimical to the proper functioning of the legal system as would its attenuation. The issue always is to determine what rules are sensible and necessary and how best to achieve an appropriate balance among the competing interests.
[53] In the present case, applying the inferences applicable to a law firm to lawyers with separate practices acting in an association would be “inimical to the proper functioning of the legal system” and would not “achieve an appropriate balance among the competing interests” (Neil, at para. 15).
[54] For the above reasons, I do not find a presumption or inference that lawyers with separate practices who work in an association share confidences, unlike the situation considered in MacDonald Estate of a law firm with partners and associates.
[55] Consequently, in a law firm the lawyer will be removed as lawyer of record if the law firm acted on a sufficiently related matter, unless protective measures were in place from the outset. However, a lawyer with a separate practice in an association can act against a former client of another lawyer in the association on the same or sufficiently related matter without the need for advance protective measures, unless there is evidence of disclosure of confidential information to the lawyer of record.
(v) Application of the above principles to the facts of this case
[56] On the evidence, I find that BJ Supermarket met its initial onus to satisfy the court that it had a previous relationship with Fox sufficiently related to the present retainer. BJ Supermarket discussed the Issues now raised in this action with Fox, including discussion of Jaswinder’s employment status which is the basis of the claim. Fox’s assertions that he (i) provided “general legal advice” and (ii) received no confidential information, are not sufficient to discharge the heavy burden to rebut the inference that BJ Supermarket disclosed confidential information to Fox in a matter “sufficiently related to the retainer from which it is sought to remove the solicitor” (MacDonald Estate, at para. 46).
[57] However, as in MacDonald Estate, the issue in the present case does not involve the same lawyer (Fox) seeking to act against the alleged former client BJ Supermarket. The issue is whether Alexander, a lawyer acting in association with Fox at Davenport, is precluded from acting against BJ Supermarket.
[58] Fox’s evidence is uncontested that:
(i) Alexander and Fox “work in association under the name Davenport Law Group along with other lawyers; however, we have completely separate practices, separate bank accounts, and separate conflicts search system”;
(ii) Fox has “not discussed the issues that were discussed in the consultation I had with Juejar Jajj and Sulinder Gill with Kenneth Alexander other than to indicate I provided general employment law advice”;
(iii) Fox has “not imparted any information to Kenneth Alexander”; and
(iv) Chris Wirth, who “acts for the Plaintiff in the commercial aspect of the case, of which I know nothing about”, referred Jaswinder to Alexander since “[Alexander] and Chris Wirth have had a number of cases over the years”.
[59] Consequently, while the perception of Davenport might be that they are a law firm comprised of several lawyers (given the business cards, invoice, email addresses, and pleadings), the evidence is that the lawyers act in an association and each lawyer has a separate practice. There is no basis for a reasonably informed member of the public to presume that Fox disclosed any confidential information to Alexander. It would be a breach of Fox’s professional ethics to discuss the file with another lawyer who shares premises in an association, just as it would be a similar breach to disclose any confidential information to lawyers who work outside the premises of the association. A presumption that Fox disclosed confidential information is not warranted on the facts of this case and the evidence does not support such a finding.
[60] I balance the competing values discussed in MacDonald Estate: (i) the concern to maintain the high standards of the legal system and the integrity of our system of justice, and (ii) the countervailing value that a litigant should not be deprived of his or her choice of lawyer without good cause (the desirability of mobility does not apply in this case). I also consider the desirability of lawyers with separate practices working in association in a manner consistent with their professional and ethical obligations.
[61] I find that permitting Alexander to remain as lawyer of record (i) maintains the high standards of the legal system since Alexander and Fox have separate practices and work with other lawyers in an association and there is no evidence that Fox disclosed any confidential information to Alexander (in fact, the evidence is to the contrary), and (ii) promotes the right to lawyer of choice and the desirability of permitting lawyers with separate practices to work in an association.
[62] Consequently, I dismiss the motion.
Order and costs
[63] The issue before the court was novel, in that no case law was cited on the issue of removal motions in the context of lawyers in an association. As a result, Jaswinder’s counsel submitted that costs ought to be in the cause and I agree, albeit in favour of Jaswinder as the successful party. Jaswinder’s counsel submitted that costs in the amount of $3,000 would be reasonable and I agree, given the importance of the issue, the motion material filed, and the similar costs incurred by BJ Supermarket. Consequently, I fix costs at $3,000 inclusive of taxes and disbursements, payable by BJ Supermarket to Jaswinder if successful in the cause.
[64] I thank counsel for their submissions which were of great assistance to the court.
Master Benjamin Glustein
DATE: September 20, 2013
[^1]: Neither counsel provided the court with MacDonald Estate as an authority on which they relied, but instead referred to the principles cited in MacDonald Estate as discussed in the cases they provided to the court.