Snider v. Snider, 2015 ONSC 1276

COURT FILE NO.: FC-12-1766-01

DATE: 20150226

CORRECTED DATE: 20150227

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DEBORAH MARIE SNIDER, Applicant/Respondent Party

AND:

RAYMOND MURRAY SNIDER, Respondent/Moving Party

BEFORE: THE HON. MADAM JUSTICE M.E. VALLEE

COUNSEL: R. Chown, for the Applicant

M. Sirdevan, for the Respondent

HEARD: February 19, 2015

ENDORSEMENT

[1] The respondent husband, Mr. Snider, brings this motion to have Ms. Kim Kieller, of Barriston Law Firm, removed as solicitor of record for the applicant wife, Ms. Snider on the basis that Mr. Gionet, Ms. Kieller’s former partner, provided advice to NUDURA, a company partly owned by Mr. and Ms. Snider, and which employed them, with respect to its intended termination of Ms. Snider’s employment. The only issue in the family proceedings is spousal support. When Mr. and Ms. Snider were employed by NUDURA they earned the same amount. Mr. Snider states that Ms. Snider’s termination was the trigger point for her spousal support claim. Therefore, the basis for the termination, that is to say whether it was for cause or not, will have a direct bearing on Ms. Snider’s entitlement to spousal support. There is a perceived and real conflict with Ms. Kieller’s continuing to represent Ms. Snider when her partner, Mr. Gionet advised NUDURA on strategies relating to Ms. Snider’s termination.

Issue

Should Barriston LLP be removed as lawyers of record for Ms. Snider?

The Test

[2] The Supreme Court considered this issue in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, 1990 CanLII 32 (S.C.C.). In that matter, the court noted that two questions must be answered in order to determine whether counsel should be removed as solicitor of record where conflict is alleged. The first question is (1) “Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand and (2) Is there a risk that it will be used to the prejudice of the client?” (see pgs. 19 and 20). The court also went on to state,

…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, a 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 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. …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. …there is, however, a strong inference that lawyers who work together share confidences. In answering this question, the court should therefore draw the inference, unless satisfied on the basis of clear and convincing 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. …I am in agreement with the statement of Posner, J. in Analyitica, supra, to which I have referred above, that the affidavits of lawyers difficult to verify objectively will fail to assure the public. (see Analyitica Inc. v. NPD Research, Inc. 708 F.2d 1263 (7th CIR. 1983), pg. 20 and 21)

Should Barriston LLP be removed as lawyers of record for Ms. Snider?

[3] The parties each own 20% of NUDURA. Another company, Polyform owns 50% of NUDURA. Pierre St-Auben is legal counsel for Polyform.

[4] On June 25, 2013, representatives from NURDURA met with Mr. Gionet to discuss employment issues with respect to Ms. Snider. They discussed confidential information and strategies and they obtained legal advice from Mr. Gionet as to termination of Ms. Snider with and without cause and the relevant factors to be considered. Ms. Snider was then terminated on July 21, 2013.

[5] Ms. Snider retained Ms. Kim Kieller prior to September, 2013. At the time, Ms. Kieller and Mr. Gionet were partners in Barriston LLP.

[6] Ms. Kieller first wrote to Mr. Snider on November 1, 2013 to indicate that she had been retained in a family law proceeding by Ms. Snider. Mr. Snider subsequently retained Mr. Miller to respond to the family law proceeding. He first wrote to Ms. Kieller on November 11, 2013 raising the issue of a conflict and suggesting that the file should be transferred to another office.

[7] Ms. Snider’s application was issued on March 4, 2014. A case conference was held before Justice McCarthy in July, 2014. Mr. Snider’s Notice of Motion with respect to this matter is dated January 30, 2015.

Mr. Snider’s Position

[8] There is another civil proceeding which relates to the family court proceedings. Mr. Snider has brought an action for an oppression remedy against Ms. Snider. She has defended that claim and has named NUDURA as a third party. Ms. Snider alleges that NUDURA wrongfully dismissed her. Other counsel represent the parties in the civil action.

[9] As noted above in MacDonald, there is strong inference that lawyers who work together share confidences. In MacDonald, the court commented on the suitability of screening devices, such as Chinese walls, as to whether they constitute clear and convincing evidence that all reasonable measures have been taken to ensure that no disclosure will occur. The court stated,

Although I am not prepared to say that a court should never accept these devices as sufficient evidence of effective screening until the governing bodies have approved of them and have adopted rules with respect to their operation, I would not foresee a court doing so except in exceptional circumstances.

[10] Mr. Snider states that although Barriston put in place a Chinese wall on December 2, 2014, this should not provide comfort to the court that all reasonable measures have been taken to ensure that no disclosure will occur.

[11] Mr. Snider states that in the circumstances, there a valid perception of a conflict and in fact there is a real conflict of interest. Mr. Snider is satisfied that confidential information was provided to Mr. Gionet of Barriston. A reasonable person would not be satisfied that no use of confidential information would occur.

Analysis

Did Mr. Gionet receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?

[12] As noted above, Mr. Gionet was consulted by representatives of NUDURA and he provided advice to them with respect to the termination of Ms. Snider. Subsequently, Polyform’s counsel called Mr. Gionet to discuss the same thing. In order for Mr. Gionet to provide the advice, he would have received information with respect to Ms. Snider’s employment performance and attendance. Counsel for Mr. Snider states that Ms. Snider’s termination from NUDURA is highly relevant to her claim in the family law proceedings for spousal support. In fact, the termination provided the trigger for the claim. Prior to her termination, both Mr. Snider and Ms. Snider were employed by NUDURA earning the same amount. No spousal support was being paid even though the parties separated on August 11, 2011. If Ms. Snider was terminated for cause, an argument could be made that this must be taken into account when determining any spousal support award because perhaps Ms. Snider was not making efforts to remain employed or to seek new employment in order to be self-sufficient. If she was terminated without cause, an argument could be made that her unemployment resulted through no fault of her own and that she is entitled to spousal support payable by Mr. Snider.

[13] Information that Mr. Gionet received in order to advise representatives of NUDURA as well as Mr. St-Auben is entirely relevant to Ms. Snider’s application for spousal support. Accordingly, I find that the first branch of the test has been satisfied, namely Mr. Gionet did receive confidential information attributable to a solicitor and client relationship that is relevant to the matter at hand.

Is there a risk that it will be used to the prejudice of a client?

[14] As noted above in MacDonald, there is strong inference that lawyers who work together share confidences. I should draw this inference unless I am satisfied that all reasonable measures have been taken to ensure that no disclosure will be made by Mr. Gionet to Ms. Kieller.

[15] As noted earlier, Ms. Kieller was retained by Ms. Snider in September, 2013. Barriston LLP created a “Chinese wall” on December 2, 2014 in order to isolate Mr. Gionet’s file with respect to NUDURA. At least two months would have passed between Ms. Snider’s retaining Ms. Kieller and the erection of the Chinese wall.

[16] It should be noted that Mr. Gionet left the Barriston LLP left as of May 1, 2014. He remained in the Barriston building until July 1, 2014 finalizing certain matters. It also should be noted that at no time did Ms. Kieller and Mr. Gionet work together in the same building. Mr. Gionet was located in the Barriston premises on Farris Lane in Barrie. Ms., Kieller was located in the Barriston premises located on Mulcaster Street in Barrie. Ms. Kieller’s evidence is that staff conducts a conflict check before she meets with a potential client. At the time when she was retained, she was not aware that Barriston had also been retained by NUDURA Corporation. Barriston’s corporate department opened its file under NUDURA with a contact name of Mr. Noseworthy (one of the NUDURA representatives who met with Mr. Gionet). Accordingly, it is quite understandable that the conflict check would not have disclosed the NUDURA file. The file opening information did not contain a reference to Mr. Snider.

[17] As noted above, Mr. Snider’s counsel, Mr. Miller wrote to Ms. Kieller and raised the conflict issue on November 11, 2014. Approximately four months later, Mr. Gionet left the Barriston law firm.

[18] Based on MacDonald, I am to infer that confidential information was imparted unless the solicitor satisfies me that none was imparted. This must also satisfy the scrutiny of a reasonably informed member of the public.

[19] I am not entirely satisfied that confidential information was not imparted. A reasonably informed member of the public would not be satisfied either. As noted in MacDonald Estate, there is a strong inference that lawyers who work together share confidences. The family law application should proceed without any concern that the advice that Mr. Gionet provided to NUDURA would be shared with Ms. Snider’s counsel.

Conclusion

[20] For the above noted reasons, Mr. Snider’s motion is allowed.

Costs

[21] If the parties cannot agree on costs, they may make written submissions. Mr. Snider shall file written submissions no longer than three pages of text together with a Costs Outline within three weeks of the release date of this decision. Ms. Snider may file responding submissions of the same length within a further two weeks. Mr. Snider may file a reply within a further one week.

VALLEE J.

Date: February 27, 2015

1. Correction to the first sentence of paragraph 19.