Boston-Cloutier v. Boston, 2015 ONSC 2510
CITATION: Boston-Cloutier v. Boston, 2015 ONSC 2510
COURT FILE NO.: 26304/13
DATE: 20150326
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cynthia Louise Boston-Cloutier, Applicant
AND:
Anne Marie Boston, Terrance Roy Boston, and the Public Guardian and Trustee, Respondents
BEFORE: A. D. Kurke J.
COUNSEL: P. Skeggs, Counsel for the Applicant K. Davies, Counsel for the Respondent – Terrance Roy Boston P. Cassan, Counsel for the Respondent – Anne Marie Boston
HEARD: March 26, 2015
ENDORSEMENT
[1] This Motion is brought by Respondent Terrance Roy Boston to have Frederick J. Skeggs (“Mr. Skeggs”) prohibited from acting as solicitor for Applicant Cynthia Louise Boston-Cloutier, on the grounds that Mr. Skeggs is in a conflict of interest.
Facts
[2] Some background is necessary to understand the issues.
[3] Anne Marie Boston is the mother of the Applicant Cynthia Louise Boston-Cloutier (“the Applicant”) and Respondent Terrance Roy Boston (“the Respondent son”). The Applicant brought an Application October 21, 2013 under s. 22 of the Substitute Decisions Act 1992, for, among other things, “an Order declaring that Anne Marie Boston is incapable of managing property and as a result, it is necessary for decisions to be made on her behalf by a person who is authorized to do so.” She sought to be the person appointed to act as guardian of Anne Marie Boston’s property. Accordingly, Anne Marie Boston is also a Respondent in this action (“the Respondent mother”).
[4] On October 26, 2011, the Respondent mother transferred a home at 81 Shannon Road into her own name and the Applicant’s name as joint tenants, and a camp property at 161 Pine Island Road, Echo Bay into her own name and the Respondent son’s name as joint tenants. The interests in these properties were held by the Applicant and the Respondent son in trust for the Respondent mother.
[5] In June 2013, the Respondent mother moved into a retirement home. The Shannon Road home was listed for sale, and, in fact, the Respondent son was present at a family discussion at which it was decided that an offer for it that had been made should be accepted.
[6] It is acknowledged by all parties that Mr. Skeggs acted both for the Respondent mother and the Applicant in the sale of the house registered in both their names which closed on September 30, 2013. That sale was not done by way of a Power of Attorney for Property, although both the Applicant and the Respondent son had been granted that Power. Rather, the Respondent mother was attended upon by the Applicant and Mr. Skeggs, who together assisted the Respondent mother in concluding the transfer of the Shannon Road property. Exhibit “B” to the Affidavit of the Respondent son dated November 28, 2013 is a Land Registry Transfer naming the Applicant and Respondent mother as “Transferors” and Mr. Skeggs as “acting for Transferors”.
[7] The Applicant states in her Affidavit sworn September 12, 2014 that Mr. Skeggs advised her to summon him to get the paperwork completed when the Respondent mother “had the mental capacity to appreciate what she was doing so that the papers could be signed.” She further states that that by June 2013, the Respondent mother “had clear mental ability at times, but other times she was not mentally capable of appreciating what she was doing”. She asserts that during the signing of paperwork related to the transfer of the Shannon Road property, her mother disclosed no confidential information to Mr. Skeggs, and Mr. Skeggs, in his Affidavit of September 15, 2014, states the same.
[8] In his Affidavit, Mr. Skeggs also indicates that he satisfied himself about the Respondent mother’s mental capacity to understand what she was doing, before having her sign the necessary paperwork for the transaction.
[9] In the meantime, the costs of maintaining the Respondent in the retirement home were being borne by the Applicant alone, although she felt that the Respondent son should be paying a portion of the expenses. She therefore also retained Mr. Skeggs before September 26, 2013 to send a demand letter to the Respondent son, requiring that he contribute a share to their mother’s maintenance.
[10] That letter, which stands as Exhibit “F” to the Affidavit of the Applicant of October 21, 2013, begins: “We act for your sister… . As you know your mothers property at 81 Shannon Road has recently been sold. The net proceeds will be placed in trust to pay for your mothers stay at the … Retirement Home at the cost of $3,120.74 per month”. It was then proposed in strong terms that the Respondent son likewise sell the Pine Island Road property to help defray his mother’s expenses. That sale is part of the Application in the instant case.
[11] Among the materials in the various Records filed with the Court is an informational report offered January 8, 2014 by Dr. E. Hirvi, the Respondent mother’s family physician. Dr. Hirvi advised that the Respondent mother had a diagnosis by 2012 of moderate Lewy Body Dementia, and that the disease had progressed. She demonstrated poor executive functioning on cognitive tests, with fluctuating delusional thinking and hallucinations “which may influence how she would manage her property”. The doctor concludes, “I cannot ensure that Ms. Boston was fully capable of understanding and signing legal documents in concern to the transfer of her home in late September, 2013”, or that she was capable of instructing legal counsel to do so.
[12] Within weeks of the transfer of the Shannon Road property, the Applicant brought the Application to have her mother declared incapable of managing property. The nature of that Application makes the Applicant’s mother a Respondent in the action, along with the Respondent son, since one other Order requested is for the sale of the Pine Island Road property, a subject that had been spoken of in the September 26, 2013 demand letter.
[13] Obviously, at issue in the Application proper will be the Respondent mother’s competence and mental capacity.
[14] The Applicant proposes, by this Application, to have the Pine Island Road property sold, so that the proceeds of that sale can be combined with the proceeds of the Shannon Road property, to be used to care for the Respondent mother, who requires care because of her declining mental and physical health. In other words, one intention of this action is to supplement the funds already realized from the sale of the Shannon Road property, a maintenance plan begun by the Applicant in September 2013. The current Application is therefore directly connected to the prior legal work involved in the sale of the Shannon Road property.
Analysis
[15] It is necessary next to consider the law concerning conflict of interest.
[16] A solicitor may be disqualified from representing a party where the lawyer finds him or herself in a conflict of interest, or where the lawyer may become a witness at trial, or even if his or her conduct of a case creates an appearance of impropriety because of previous contacts with the opposing party. The fact that there was nothing untoward about the previous conduct does not detract from the need to protect public confidence in the administration of justice. Rather, the guiding issue has been determined to be: would a reasonably informed member of the public think that the solicitor should be disqualified from continuing to act for the party?: MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, at 1259-1260; Fitzgerald v. Sharp, [2004] O.J. No. 4110 (Sup. Ct.), at paras. 11-12, 15; Everingham v. Ontario, [1992] O.J. No. 304 (C.A.), at page 7 (QL).
[17] While it was Mr. Davies’ position that Mr. Skeggs’ observations concerning the Respondent mother constitute “confidential information” imparted to him by the Respondent mother, I am not satisfied in the circumstances of this case that such observations could rise to that status, and so I will not be addressing the conflict issue with respect to the existence or subsequent use of confidential communications. The Affidavit evidence of the Applicant and Mr. Skeggs satisfy me that no confidential information in the normal sense passed from the Respondent mother to Mr. Skeggs on the occasion of the transfer of the Shannon Road property.
[18] Mr. Skeggs represented the Respondent on a matter, the sale of the Shannon Road property, which is connected to the current litigation, as it clearly forms part of a plan undertaken by the Applicant to ensure the proper maintenance of her mother. This is a conflict of interest, as in the current Application, counsel for the Applicant defines as a Respondent the person whom he had previously assisted as client in the connected transaction. While the Applicant argues that the Application is intended to assist the Respondent mother, that intention does not erase the conflict that is apparent on the face of the Application, or for that matter, the apparent concern of the Respondent mother about Mr. Skeggs’ change in position, as voiced to the court by Mr. Cassan, who was appointed to act as Public Guardian and Trustee for the Respondent mother.
[19] The Applicant’s intentions are not determinative; instead, we must look to what that reasonable member of the public would think, seeing Mr. Skeggs now opposed in legal interest to a person he formerly represented: Fitzgerald v. Sharp, [2004] O.J. No. 4110 (Sup. Ct.), at para. 19. Objectively speaking, it seems incongruous that Mr. Skeggs was satisfied enough with the Respondent mother’s capacity that he assisted her to transfer away property of significant value, but he almost immediately afterwards sought to have her declared incapable to manage her affairs. The Respondent mother’s capacity is central to the current Application, and to the legitimacy of the transfer in September 2013, both of which retainers appear to form part of a single comprehensive maintenance plan.
[20] In such a circumstance of connection, it does not matter whether confidential information passed or did not pass between client and lawyer. As Cromwell, J.A. (as he then was), pointed out concerning the determination of conflict issues in Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd. (2008 NSCA 22, [2008] N.S.J. No. 94 (C.A.), at para. 55):
When, as here, confidential information is not at risk, the relationship between the two retainers is considered in order to identify whether the second retainer involves the lawyer attacking the legal work done during the first retainer or amounts, in effect, to the lawyer changing sides on a matter central to the earlier retainer. [emphasis added]
In this context, I also consider the Law Society of Upper Canada Rules of Professional Conduct, Rule 3.4-10 with Commentary [1]: “Rule 3.4-10 … ensures that a lawyer does not attack the legal work done during a previous retainer, or undermine the client’s position on a matter that was central to a previous retainer.”
[21] The current retainer must cause concerns about the serious possibility that the Respondent mother was mentally incapable at the time of the transfer, and raises the spectre of undue influence by Applicant and solicitor in the earlier transaction. The latter concern cannot be obviated simply by a finding of a court, should there ultimately be such a finding, that the solicitor did nothing improper, and that he was only assisting to initiate a beneficial plan devised by the Applicant to maintain her mother. It is the appearance of the thing that must cause concern for the public’s view of the administration of justice: Everingham v. Ontario, [1992] O.J. No. 304 (Div. Ct.), at 6-7 (QL).
[22] Mr. Skeggs is also in the unenviable position of at least potentially being summoned to witness at trial. His observations of the Respondent mother and evidence about discussions with the Applicant during the sale of the Shannon Road house, cannot be said to be irrelevant to issues that are central to this case. And, quite simply, he cannot be counsel and witness in the same proceeding.
[23] The Applicant wants to continue with Mr. Skeggs as counsel. She points out that a change of counsel will delay the matter and cause her additional expense, and she complains that the Respondent son should have raised this earlier as an issue.
[24] In fact, while this Motion was only filed August 1, 2014, the conflict issue was raised as early as November 28, 2013 in the Respondent son’s Affidavit at Tab 2, paragraphs 11-13 of the Respondent’s Application Record. The Applicant and Mr. Skeggs were put on Notice a little more than a month after the initiation of this Application, of the Respondent son’s concerns about this conflict.
[25] While I sympathize with the Applicant about the delay and expense, those headings of prejudice could and should have been minimized had the Applicant acknowledged the Respondent son’s concerns in November 2013. In any event, the conflict remains and cannot be ignored, even though its remedy will likely affect the timing and costs of the Application going forward.
[26] However, I find that Mr. Skeggs’ continued representation is not possible in the circumstances of this case, as he is conflicted. In this case, Mr. Skeggs assisted in the transfer of property from a client whose capacity to make that transfer is at issue in the Application, for he is now seeking to have that former client found to have been incapable of managing her own affairs from around the time of the transfer. In so doing, he puts himself in a position opposed to hers in this Application, which is closely connected to his prior representation. Additionally, he may also have material evidence to offer about the Respondent mother, and about the Applicant, at a point in time close to the commencement of the Application.
Order and Costs
[27] In the result, I order that Frederick J. Skeggs be removed as counsel on this Application, and prohibited from further representation of the Applicant in this matter. Insofar as Mr. Skeggs may be called as a witness at trial, his firm is also ordered not to continue in its representation of the Applicant on this matter, save to ensure the orderly transfer of materials in their possession to whoever will now be retained to act as counsel for the Applicant.
[28] The Applicant is to pay $1,500 costs to Terrance Roy Boston and $500 to Anne Marie Boston, all inclusive, forthwith. Those funds may not be drawn from Anne Marie Boston’s assets.
A.D. Kurke J.
Date: 20150326