CITATION: Maso v. Martinez, 2015 ONSC 3467
COURT FILE NO.: 36767/14
DATE: 2015-05-29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: EMILIA GARCIA MASO, Applicant
AND:
HENRY MARTINEZ, Respondent
BEFORE: Gray J.
COUNSEL: Elena E. Mazinani, Counsel for the Applicant
Claudia Falquez-Warkentin, Counsel for the Respondent
HEARD: May 28, 2015
ENDORSEMENT
[1] In this motion, the respondent seeks to remove the applicant’s counsel, Elena E. Mazinani, as the applicant’s solicitor of record. The respondent relies on a disqualifying conflict of interest.
[2] This application was commenced on May 14, 2014. At the time, the applicant was represented by Frances M. Wood. The applicant was represented by Ms. Wood until March 10, 2015, when she served a Notice of Change in Representation. As of March 10, 2015, she has been represented by Elena E. Mazinani.
[3] Until October, 2014, at which point Ms. Falquez-Warkentin began acting for him, the respondent was self-represented. However, while he was self-represented it was necessary for him to file an answer and a financial statement. He swears that he consulted a paralegal, Karenina Castillo. She is a licensed paralegal. She prepared his answer and financial statement.
[4] The respondent swears that in addition to his answer and financial statement, it became necessary to prepare a case conference brief as a result of a case conference that was requested by the applicant. Ms. Castillo prepared that document for him.
[5] The respondent swears that Ms. Castillo assisted him in every aspect of the family law litigation including the drafting of his answer, sworn financial statement and case conference brief. He swears that he met with Ms. Castillo at her office, at EME Professional Corporation located on Dundas Street in Toronto. He says on a couple of occasions, a lawyer by the name of Joel Etienne was present.
[6] In paragraphs six and nine of his affidavit sworn April 23, 2015, the respondent deposes as follows:
All of my communication with respect to my family law case was with Ms. Castillo from the time I was served with Emily’s court documents, through to and including her support and assistance in preparing for an emergency early Case Conference brought by Ms. Wood on within approximately three months of commencement of the litigation. Attached as Exhibit “A” are text messages exchanged with Ms. Castillo throughout that period of time.
I trusted Ms. Castillo and provided her with all of the information she required for the preparation of my responding materials; we discussed strategy I wanted to follow, my position on Emily’s claims and how I wished to ultimately resolve the dispute; the discussions included the details of my disputes with Emily over our marriage, the reason for our separation, my finances, business operation, the daily management of our household during and after separation and parenting of our 15 year-old son, Eric Daniel Martinez-Maso.
[7] Counsel for the respondent became aware, on or about March 4, 2015, that Ms. Wood was no longer acting for the applicant, and that she had retained Elena Mazinani to represent her. Counsel for the respondent was aware that Ms. Castillo worked with Ms. Mazinani on family law files as she had had experience with some files with Ms. Mazinani. She knew that Ms. Castillo was substantially involved with the files in which Ms. Mazinani acted as opposing counsel. There was communication between Ms. Castillo and Ms. Falquez-Warkentin’s law clerk, ranging from the regular scheduling of court appearances, exchanges regarding disclosure, to relaying instructions from clients to opposing counsel.
[8] On or about March 11, 2015, counsel for the respondent notified Ms. Mazinani of a potential conflict of interest and requested that Ms. Mazinani remove herself as counsel of record.
[9] In the affidavit material filed by the respondent, an excerpt from Ms. Mazinani’s website is attached that describes “other lawyers and staff” within Ms. Mazinani’s office. Included is a description of Karenina Castillo. The excerpt states:
Karenina is a paralegal fluent in Spanish. She assists Ms. Mazinani with family and immigration matters. Her experience and dedication is an asset to our clients.
[10] While Ms. Mazinani has taken the position, both in correspondence with counsel for the respondent and in her factum, that she has no disqualifying conflict of interest, she has filed no affidavit material that discloses any policies or procedures within her firm as they relate to “Chinese walls” or other means of shielding confidential information. However, she has filed an affidavit of Ms. Castillo.
[11] In her affidavit, Ms. Castillo deposes that she is a paralegal licensed by the Law Society of Upper Canada. She says she works as an independent contractor both for Mazinani Law Offices and EME Professional Corporation. She swears that the extent of her work at Mazinani Law Offices includes the preparation of court documents, court scheduling, billing, and other administrative duties. She says she provides contract paralegal services to Ms. Mazinani on a call-basis.
[12] Ms. Castillo swears that as a licensed paralegal contractor, “reasonable mobility among the legal profession is essential to my ability to work as a contractor.”
[13] Ms. Castillo acknowledges that in June, 2014, the respondent attended a consultation with Joel Etienne at EME. She says “I was present at said consultation and thereafter assisted Henry in completing and commissioning court forms relating to the within family law matter.” She also swears “the extent of my work in his family law matter at the time was merely filling out the appropriate court forms. At no time did I provide Henry with legal advice as this function is beyond my authorized powers as a licensed paralegal.”
[14] Ms. Castillo swears that she never discussed with Ms. Mazinani’s office, or anyone thereof, of the particulars of the respondent’s family law matter. She swears that as part of her confidentiality obligations, she never discusses any legal matters from EME to Mazinani Law or vice versa. She says she is bound by confidentiality and takes her responsibilities as a licensee very seriously in order to maintain the high standards of the legal profession and the integrity of the justice system.
[15] Ms. Castillo swears that upon her return from vacation on or about March 16, 2015, Ms. Mazinani instituted measures to ensure that she would be isolated from the family law matter. She says she has never had access to nor works on the applicant’s file. She says she has never imparted any information relating to the respondent’s family law matters to Ms. Mazinani’s law firm.
[16] Counsel for the respondent submits that Ms. Mazinani should be removed as counsel of record for the applicant. She submits that in the circumstances there is a disqualifying conflict of interest as contemplated in MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235. Counsel submits that there is a risk that information conveyed by the respondent to Ms. Castillo will be used to his prejudice. At the very least, a reasonably informed member of the public would believe that there is such a risk.
[17] Counsel submits that the fact that Ms. Castillo is not a barrister or solicitor is of no moment. As a paralegal, she was someone whom the respondent reasonably believed was skilled in legal matters, and he entrusted confidential information to her on that basis. She took that information and prepared, on his behalf, his answer, his financial statement and a case conference brief.
[18] Now that the applicant is represented by Ms. Mazinani, he is aware that Ms. Castillo is associated with Ms. Mazinani. Ms. Mazinani is either a sole practitioner or is a partner in a very small law firm. Ms. Castillo, on her own evidence, regularly does work for Ms. Mazinani, including paralegal work.
[19] According to the Supreme Court of Canada in Martin, in order to dissipate any perception that information might be improperly disclosed, there must be in place formal policies and procedures to prevent improper disclosure, and there must be evidence that those policies and procedures are invariably followed. No such evidence has been produced in this case, and in the case of a very small law firm it is doubtful that any such procedures would be effective.
[20] Counsel submits that it is not only where information is imparted to lawyers that the issue of a disqualifying conflict arises. It can properly arise where other people associated with a lawyer are given information, such as secretaries or support staff: see Cartledge (Litigation Guardian of) v. Brown (1998), 1998 CanLII 14696 (ON SC), 41 O.R. (3d) 376 (Gen. Div.).
[21] Ms. Mazinani, counsel for the applicant, submits that the motion should be dismissed. She submits that there is no disqualifying conflict of interest as contemplated in Martin, supra.
[22] Ms. Mazinani acknowledges that information imparted from the respondent to Ms. Castillo was confidential. However, she submits that no confidential information was ultimately imparted to the applicant’s solicitor. Ms. Castillo is a contracted paralegal, and she is not to impart any confidential information, obtained in the course of her work with one lawyer, to any other lawyer by whom she may be engaged. Once Ms. Mazinani was retained by the applicant, Ms. Castillo was specifically instructed not to impart any information.
[23] Ms. Mazinani submits that a member of the public, represented by the reasonably informed person, would be satisfied in these circumstances that no use of confidential information would occur.
[24] For these reasons, Ms. Mazinani submits that the motion should be dismissed.
[25] There is no doubt that the respondent imparted confidential information to Ms. Castillo. Indeed, she drafted on his behalf his answer, his financial statement and a case conference brief. She could not do so unless she had confidential information. This is so even though the documents, at least to some extent, became public after they were filed.
[26] The respondent swears that he discussed the entire background of his marriage and the causes of its break-up with Ms. Castillo, and he discussed his strategy in conducting the litigation with her. In her affidavit, Ms. Castillo does not deny this. She merely says she did not provide the respondent with any legal advice.
[27] The only issue, in my view, is whether a reasonably informed member of the public would be satisfied that no use of any confidential information imparted to Ms. Castillo would or could occur, once the applicant became represented by Ms. Mazinani. The evidence discloses that Ms. Mazinani regularly uses Ms. Castillo for various purposes within her office, including paralegal services. The onus is on the applicant and Ms. Mazinani to demonstrate that no confidential information would or could be imparted, and that a reasonably informed person would be satisfied that that is the case.
[28] In my view, the applicant and Ms. Mazinani have not demonstrated that there is no risk of any improper disclosure of confidential information, and that a reasonably informed person would be satisfied that that is the case.
[29] According to Sopinka J. in Martin, supra, it is incumbent on a law firm who may come into possession of confidential information to demonstrate that it has policies and procedures in place that make it impossible, or at least highly unlikely, that this can occur. The law firm can do so through Chinese walls or other similar policies.
[30] In this case, apart from the bald statement by Ms. Castillo that she has been instructed not to disclose anything, and her equally bald statement that she has not and will not disclose anything, no evidence of any policies and procedures on the part of Ms. Mazinani’s law firm have been produced.
[31] A similar undertaking or promise was given by a law clerk in Cartledge, supra. Lax J. held that that was not sufficient. In the case before me, it is not sufficient either.
[32] Ms. Mazinani argues that Cartledge is distinguishable because the law clerk in that case was an employee who moved from one law firm to another. In this case, Ms. Castillo is an independent contractor who works for a number of law firms. In my view, the distinction is one without a difference. As a paralegal, she comes into possession of confidential information. If confidential information is imparted to her, a law firm that utilizes her services must ensure, in as formal a manner as possible, that it is impossible or at least highly unlikely that any confidential information she has will come into the law firm’s possession.
[33] In my view, Ms. Mazinani has a disqualifying conflict of interest. An order will issue removing her as the solicitor of record for the applicant.
[34] I will entertain brief written submissions with respect to costs, not to exceed three pages, together with a costs outline. Counsel for the respondent shall have five days to file submissions, and counsel for the applicant shall have five days to respond. Counsel for the respondent shall have three days to reply.
Gray J.
Date: May 29, 2015