Hogarth v. Hogarth
Ontario Reports Ontario Superior Court of Justice, Glustein J. June 17, 2016 131 O.R. (3d) 736 | 2016 ONSC 3875
Case Summary
Professions — Barristers and solicitors — Conflict of interest — Wife's boyfriend meeting once with husband's lawyer to decide whether to retain lawyer to act for him in his own matrimonial litigation — Boyfriend not retaining lawyer — Husband subsequently filing answer in which he stated that he suspected in 2005 that wife and boyfriend were having affair and that wife spent extravagantly on boyfriend after parties separated — Motion by wife and boyfriend to remove lawyer as counsel for husband dismissed — Boyfriend not telling lawyer that he and wife were dating — Relationship between wife and boyfriend not confidential in any event — Wife's and boyfriend's matrimonial proceedings not sufficiently related to give rise to presumption that boyfriend provided relevant confidential information to lawyer — Lawyer not having conflict of interest and not breaching any duty of loyalty to boyfriend.
The wife and her boyfriend, A, who was not a party to the matrimonial litigation (the "H litigation"), brought a motion to remove the husband's lawyer N on the ground that N had a conflict of interest. In 2015, A met briefly with N on one occasion to decide whether to retain him to act for him in his own matrimonial litigation (the "A litigation"). He decided not to do so and retained another lawyer. The husband subsequently filed an answer in which he stated that, after reading a series of text messages in 2005, he suspected that the wife and A were having an affair, that the wife denied it and he believed her, and that the wife spent extravagantly on trips with A after the parties separated. A claimed that he told N about his relationship with the wife.
Held, the motion should be dismissed.
A had standing to bring the motion as a former client who objected to the use of his allegedly relevant confidential information. N and his associate, who was present during N's meeting with A, credibly denied that A told them that he and the wife were dating. In any event, by that time, the relationship between the wife and A was not confidential information. The moving parties had not established that the H litigation and the A litigation were sufficiently related such as to result in a presumption that A provided confidential information to N relevant to the H litigation. N was not in a conflict of interest. Assuming that N owed A a limited duty of loyalty, he did not breach that duty. A fair-minded and reasonably informed member of the public would not conclude that the proper administration of justice compelled N's removal as the husband's counsel.
Performance Diversified Fund v. Flatiron GP Group, 2016 ONSC 1133 (Div. Ct.); MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, apld
Other cases referred to
Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd., 2008 NSCA 22; Canadian National Railway Co. v. McKercher LLP, [2013] 2 S.C.R. 649; Chapters Inc. v. Davies, Ward & Beck LL.P. (2001), 52 O.R. (3d) 566 (C.A.); Chiefs of Ontario v. Ontario (2003), 63 O.R. (3d) 335 (S.C.J.); Consulate Ventures Inc. v. Amico Contracting & Engineering (1992) Inc., 2010 ONCA 788; Credit Suisse First Boston Canada Inc. (Re), 2004 LNONOSC 774 (Sec. Comm.); Girgis-Boktor v. Reddy, 2014 ONSC 4411 (S.C.J.); Mallory v. Werkmann Estate, 2015 ONCA 71; Marinangeli v. Marinangeli, [2004] O.J. No. 3082 (S.C.J.); Paylove v. Paylove (S.C.J.); R. v. Brissett (2005), 74 O.R. (3d) 248 (S.C.J.); R. v. Neil, [2002] 3 S.C.R. 631; R. v. Woodcock, 2010 ONSC 484 (S.C.J.); Remus v. Remus (2002), 61 O.R. (3d) 680 (S.C.J.); Trizec Properties Ltd. v. Husky Oil Ltd., 1997 ABCA 182; Zaldin v. Zaldin, 2014 ONSC 6504 (S.C.J.)
Authorities referred to
Perell, Paul M., Conflicts of Interest in the Legal Profession (Toronto: Butterworths, 1995)
MOTION to remove the husband's lawyer.
Aaron Franks and Michael Zalev, for applicant. F. Yehia, for Antony Nella. Jonathan Lisus and Paul Michell, for respondent.
GLUSTEIN J.: —
Nature of Motion and Overview
1The applicant, Constance Frances Hogarth ("Connie"), and Antony Nella ("Antony") (collectively, the "moving parties"), jointly bring the present motion to remove Harold Niman ("Niman") and the law firm of Niman Gelgoot & Associates as lawyer for the respondent, Timothy Hogarth ("Tim").
2Connie and Tim are currently parties in the present matrimonial litigation which was commenced by application, dated December 11, 2015 (the "Hogarth litigation").
3Antony is a party in matrimonial litigation brought in relation to his marriage (the "Nella litigation").
4Connie and Antony are currently in a "committed relationship", which is not defined by either of them, except that they both acknowledge they are not cohabiting. Counsel for the moving parties described the relationship as "girlfriend" and "boyfriend".
5In September 2015, Antony's (then) counsel, Andreus Snelius ("Snelius"), advised Nella that Snelius was ill. Snelius advised Antony to meet with several counsel, 1 including Niman, to decide who Antony wanted to retain as Antony's counsel in the Nella litigation. On September 27, 2015, Antony met with Niman and his associate, Erin MacKenzie ("MacKenzie"), for that purpose.
6At the September 27, 2015 meeting (the "meeting"), Antony alleges that he advised Niman and MacKenzie that Antony was dating Connie.
7Antony chose not to retain Niman and advised Niman of his decision three days after the meeting.
8Tim filed an answer, dated January 29, 2016 (the "answer"), in which he alleged (i) he discovered text messages between Antony and Connie in 2005 that led him to conclude they were having an affair; and (ii) after Tim and Connie separated, Connie spent extravagant sums on trips with her "boyfriend" (who was Antony).
9The moving parties submit that Niman 2 must be removed as Tim's lawyer since (i) Niman 3 breached his duty of confidence and used confidential information from Antony relevant to the Hogarth litigation; (ii) even if no confidential information relevant to the Hogarth litigation was disclosed, Niman breached his duty of loyalty to Antony; (iii) Niman breached his duty of candour to Antony; and (iv) Niman could not cross-examine Antony at trial, who is likely to be a witness.
10The moving parties also submitted in their factum that Niman breached his professional obligations by providing his file in relation to the meeting to outside counsel who acted for Niman on this motion. At the hearing, counsel for the moving parties acknowledged that it was proper for Niman to retain outside counsel, but submitted that Niman ought to have sought and obtained permission from Antony before providing the file.
11In any event, the moving parties are not relying on the issue of professional obligations as a basis for removing Niman, so I do not address the issue of whether Niman needed to obtain permission from Antony before delivering his file in relation to the Nella litigation to his outside counsel when faced with a removal motion.
12For the reasons I discuss below, I dismiss the motion.
A Note on Standing
13I note that unlike the cases relied upon by the moving parties, Antony is not bringing the motion as the adverse party in the Hogarth litigation. Connie is not a "former client" of Niman, and Niman is not acting against Antony (or in any capacity) in the Nella litigation.
14Nevertheless, for the purposes of the legal analysis below, I apply the conflict and removal principles to the moving parties.
15I find that Antony has standing as a former client who objects to the use of his allegedly relevant confidential information.
16The above analysis is consistent with the approach taken by the Divisional Court in Performance Diversified Fund v. Flatiron GP Group, 2016 ONSC 1133 ("Performance Diversified"), in which D.L. Corbett J. held that a former client would have standing in an action to seek removal of counsel even if not a party to the other action, "to prevent misuse of his confidential information" (Performance Diversified, at para. 20).
17With respect to Connie's standing, the court in Performance Diversified upheld the reasons of the motion judge that the moving defendants did not have standing as they were not former clients of the firm. In Performance Diversified, the former client did not object to the use of the confidential information, as the plaintiff had discontinued the action against the former client and the plaintiff executed a release in favour of the former client with the former client having "agreed to make himself available for examination by the plaintiff" (Performance Diversified, at para. 10).
18The court in Performance Diversified did not address a situation such as in the present case when a party who is not a former client (Connie) seeks to remove counsel who is allegedly using relevant confidential information of a former client who opposes the use of that information (Antony). However, for the purposes of this motion, the issue of Connie's standing is not relevant as Antony and Connie jointly brought the motion.
19Consequently, I consider the principles below to determine whether the moving parties have established a conflict of interest to remove Niman as lawyer of record for Tim.
Analysis
20I address each legal argument below, as well as the evidence relevant to the issue.
21Connie and Antony filed affidavits on behalf of the moving parties. Niman, MacKenzie and Tim filed responding affidavits. Antony filed a reply affidavit to address the issues raised in the responding affidavits. There was no questioning on the affidavits.
Issue 1: Did Niman breach a duty of confidence?
22I first address the applicable law on the duty of confidence owed by a lawyer to a former client. I then review the relevant facts as they apply to the present case.
a) The applicable law
23In MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 ("MacDonald Estate"), 4 the Supreme Court of Canada set out a two-part test as to whether a lawyer can act against a former client. The court must determine (i) did the lawyer receive confidential information to a solicitor and client relationship relevant to the matter at hand, and (ii) is there a risk that it will be used to the prejudice of the client (MacDonald Estate, at para. 45)[?]
24In MacDonald Estate, the court noted that "[n]othing is more important to the preservation of [the solicitor-client] relationship than the confidentiality of information passing between a solicitor and his or her client" (MacDonald Estate, at para. 15).
25On a motion to remove counsel for conflict of interest, the court must weigh the competing values of "[t]he concern to maintain the high standards of the legal profession 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).
26The preservation of the integrity of our system of justice is the "most important and compelling" value (Consulate Ventures Inc. v. Amico Contracting & Engineering (1992) Inc., 2010 ONCA 788 ("Consulate Ventures"), at paras. 35-36).
27Confidential information is information one would not ordinarily reveal to an opposing lawyer. It includes such matters as personal expenses, assets and liabilities, as well as information about the "personal habits, faults and foibles of the aeclient', knowledge of which might be valuable to the lawyer in the adversarial world of litigation" (Paylove v. Paylove (S.C.J.), at para. 19).
28The importance of confidentiality has been particularly noted in family law cases since clients often "come to family lawyers when they are at their most vulnerable" (Marinangeli v. Marinangeli, [2004] O.J. No. 3082 (S.C.J.), at paras. 17-20).
29If a former client can establish 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 which could be relevant "unless the solicitor satisfies the court that no information was imparted which could be relevant". That burden must be discharged without revealing the specifics of the privileged communication (MacDonald Estate, at para. 46).
30The former client bears the onus of showing that the previous retainer is sufficiently related to the current retainer (Canadian National Railway Co. v. McKercher LLP, [2013] 2 S.C.R. 649 ("McKercher"), at para. 24; Chapters Inc. v. Davies, Ward & Beck LL.P. (2001), 52 O.R. (3d) 566 (C.A.) ("Chapters"), at para. 29).
31The former client must adduce "clear and cogent" evidence, not mere assertions that the two retainers are sufficiently related. The former client must show that the possibility of relevant confidential information having been acquired is realistic, not just theoretical (Chapters, at paras. 29-30).
32The test of "sufficient relationship" is whether "[g]iven the nature and detail of the confidential information received" in the first retainer, it is "likely that at least some of that information could be relevant to the current matter" and "likely to be part of the factual context directly informing" counsel's advice to the new client. The information "will be relevant if it assists the lawyers to advance the cause of the new client against the old client" (Chapters, at para. 36).
33It is incumbent on a party seeking to disqualify a solicitor to specify why the documents and information supplied previously to the solicitor are connected or related to the new matter rather than leave the court to have to guess at the degree of connection (Remus v. Remus (2002), 61 O.R. (3d) 680 (S.C.J.), at para. 14).
34There may be cases in which a simple description of the two retainers shows them to be so closely connected that the court will infer the possible misuse of confidential information and, hence, find the retainers to be sufficiently related. More commonly, an outline of the nature of the confidential information passed to the lawyer pursuant to the first retainer will be needed (Chapters, at para. 30).
35The court must determine whether the former client has shown that the former matters on which they retained counsel could have yielded relevant confidential information that could be used against it in "some tangible manner" (McKercher, at para. 54).
36The court must carefully review and compare the retainers to determine whether they are sufficiently related (see Chapters, at paras. 4-6 and 32, in which the court reviewed the first retainer in detail and then reviewed the new retainer, at paras. 10, 35-36).
37The test for determining whether there is a conflict of interest is whether the "public represented by the reasonably informed person would be satisfied that no use of confidential information would occur" (MacDonald Estate, at para. 44). The test was stated recently as "whether a fair minded and reasonably informed member of the public would conclude that the proper administration of justice compels the removal" (Mallory v. Werkmann Estate, 2015 ONCA 71 (C.A.), at para. 28).
38Because the test is objective, "[t]here does not need to be a finding of impropriety in order for the solicitor to be removed, rather it is the appearance of impropriety that is the test", a principle which has been applied in the family law context (Zaldin v. Zaldin, 2014 ONSC 6504 (S.C.J.), at para. 13).
39While the court is not limited to the narrow scope of the pleadings to determine whether issues may arise in which relevant confidential information could be used against a former client, there must be "a real possibility that the issues will expand beyond" the range of the pleadings (Consulate Ventures, at para. 14).
40If the former client cannot meet the onus to establish that the previous retainer is sufficiently related to the current retainer, no presumption arises (Trizec Properties Ltd. v. Husky Oil Ltd., 1997 ABCA 182, at para. 12).
41The necessary corollary of the "sufficiently related" rule in MacDonald Estate is that if a party cannot demonstrate that the two matters are sufficiently related, the former client can lead evidence that the law firm actually possesses relevant confidential information.
42Unlike the "irrebuttable presumption" that will be a "difficult burden to discharge" because it must be discharged "without revealing the specifics of the privileged communication" (MacDonald Estate, at para. 46), the burden to show actual knowledge of relevant confidential information necessarily falls on the party who cannot establish that the retainers are sufficiently related, and leaves that party with the choice of the extent to which the party must disclose enough information about the communications to satisfy that burden.
b) Application of the law to the evidence on the motion
43I consider below whether the moving parties have established that (i) the Nella litigation and Hogarth litigation are sufficiently related; and (ii) if they are not sufficiently related, is there any evidence that Niman possesses actual relevant confidential information from Antony in relation to the Hogarth litigation.
1. The "sufficiently related" test
44In order to consider whether the Nella litigation and Hogarth litigation are sufficiently related, the moving parties rely on (i) the fact that they are both involved in ongoing matrimonial litigation; (ii) the documents and e-mails delivered to Niman for review in relation to the meeting as well as Niman's telephone conversation and e-mails with Snelius prior to the meeting; (iii) an alleged conversation during the meeting in which Antony told Niman that Antony was dating Connie; and (iv) the allegations in the answer relating to Antony. I address each of these grounds below.
(i) The pleadings in the two applications
45Under the Chapters test, either (i) a simple description of the two retainers shows them to be so closely connected that the court will infer the possible misuse of confidential information and, hence, find the retainers to be sufficiently related; or (ii) more commonly, an outline of the nature of the confidential information passed to the lawyer pursuant to the first retainer will be needed.
46In his affidavit, Antony provided no description of the Nella litigation, except to state that "I am currently involved in family law litigation with my wife". The moving parties did not file any pleadings from the Nella litigation. Consequently, I cannot find that the Nella and Hogarth litigations are sufficiently related based on the pleadings.
47Rather, Antony relies on an overview of the Nella litigation set out in an e-mail letter from Snelius to Niman, dated September 25, 2015 (the "Snelius letter"), provided prior to the meeting, which I review at paras. 54 to 56 below as part of the evidence about the documents, e-mails and telephone conversations related to the meeting.
(ii) Documents provided for the meeting and telephone conversations and e-mails prior to the meeting
48The uncontested evidence was that Niman was never retained as Antony's lawyer in the Nella litigation. Niman and MacKenzie met with Antony for a brief meeting (either an hour as per Niman and MacKenzie's evidence or two hours as per Antony's evidence), at the suggestion of Snelius, who "fell ill and could no longer continue representing me in my case". Antony's evidence is that Snelius told Antony that Niman was "exceptionally aesmart' and aetough'".
49Snelius also recommended that Antony meet with Ms. Esther Lenkinski, who Antony did retain as his counsel.
50Niman's involvement in the Hogarth litigation was known to Connie since Niman's co-counsel 5 advised Connie's counsel of Niman's retainer by letter dated May 5, 2014.
51Antony relies upon "23 pages of schedules and attachments", which were provided at the hearing (along with the Snelius letter) in a sealed format as all parties agreed that the documents included some confidential information (the "sealed document brief"). The sealed document brief also included public orders and endorsements (without the pleadings).
52However, the issue is not whether the sealed document brief contained confidential information relevant to the Nella litigation. Rather, the court, under the Chapters test, must determine whether those documents demonstrate a sufficient relationship between the Nella and Hogarth litigations.
53Antony's counsel could point to no document in the sealed document brief that referred to Tim, Connie or to the Hogarth litigation. Niman is not seeking to act against Antony in the Nella litigation. Rather, the issue is whether there is any confidential material relevant to the Hogarth litigation contained in the sealed material.
54At the hearing, counsel for Antony relied on the Snelius letter which summarized the background of the Nella litigation. Counsel for Antony relied on a description in that letter of an issue in the Nella litigation as to the date of separation as a basis that the two actions are sufficiently related. 6
55Antony's counsel provided no explanation as to why any issue as to the date of separation in the Nella litigation is "so closely connected" to the Hogarth litigation to "infer the possible misuse of confidential information and hence find the retainers to be sufficiently related". A bald assertion that a contested separation date is relevant to the Hogarth litigation cannot suffice to meet the "clear and cogent" requirements of the Chapters test.
56There is no discussion of Connie or Tim in the Snelius letter.
57With respect to Antony's financial information in the sealed document brief, counsel for Connie acknowledged 7 that spousal support (which is at issue in the Hogarth litigation) does not depend on the financial means of a "boyfriend" who a spouse is dating.
58Similarly, if there were any confidential information as to the conduct of the Nella litigation contained in the sealed document brief, it would be irrelevant to the case strategy that Connie might adopt in the Hogarth litigation. The two matters are separate matrimonial litigations, with different counsel.
59The moving parties submit that the court can find that relevant confidential information to the Hogarth litigation was transmitted in an e-mail chain between Snelius and Niman and a telephone conversation prior to the meeting. However, Niman produced the e-mail chain, and there is no information except Antony's name and that Snelius said "I have a client that I am going to be referring out" and "Tough case, family companies and large dollars involved".
60As to the telephone call from Niman to Snelius, Niman's uncontested evidence was that "I called him, and he told me that he wanted to set up a meeting with his client. He explained that he was counsel to Antony Nella in a family law dispute with his ex-wife. Mr. Snelius did not mention Connie or Tim".
61Again, there is no evidence arising from the telephone call that could support a claim that Niman obtained relevant confidential information with respect to the Hogarth litigation.
62Consequently, the mere existence of two independent matrimonial litigations in the circumstances where Antony and Connie happen to be dating, along with the delivery of materials related to the Nella litigation prior to the meeting do not, on the evidence summarized above, satisfy the test that the Nella and Hogarth litigations are sufficiently related.
(iii) The alleged discussion at the meeting
63Antony alleges that at the meeting, he told Niman and MacKenzie that Antony and Connie were dating. I find that (i) the conversation did not occur; and (ii) even if it did, there was no relevant confidential information disclosed.
1) The conversation did not occur
64With respect to the issue of whether Antony told Niman and MacKenzie at the meeting that Antony and Connie were dating, I adopt the approach of Stinson J. in Girgis-Boktor v. Reddy, 2014 ONSC 4411 (S.C.J.) ("Boktor"). On a review of all the evidence on this issue, I find that no such conversation took place.
65In Boktor, the defendant, Mr. Chew, alleged that he had a conversation with plaintiff's counsel, Mr. Maurer, in which Mr. Maurer counselled Mr. Chew to lie under oath and "coach" Mr. Chew's testimony (Boktor, at paras. 32-33). Stinson J. relied on the contemporaneous detailed memorandum of counsel to accept counsel's evidence that the conversation did not take place (Boktor, at para. 37).
66In the present case, MacKenzie's lengthy contemporaneous notes of the discussions at the meeting make no reference at all to Connie. The notes refer to the fact that Antony's wife was dating someone else, and to numerous other issues relevant to the Nella litigation. As in Boktor, those notes were prepared contemporaneously with the meeting, "at a time well in advance of any suggestion that Mr. Maurer had somehow acted improperly in obtaining so-called confidential information from Mr. Chew. This negates any suggestion that the memo contains only selected portions of what was discussed" (Boktor, at para. 47).
67There is no basis to conclude that MacKenzie would not have recorded in her notes that Antony was dating Connie as of 2015. Both MacKenzie and Niman swore affidavits in which their uncontested evidence was they both remember the meeting, and no such discussion took place.
68Further, Antony makes the serious allegation in his affidavit that he believes that after Antony allegedly told Niman that he was dating Connie, "my meeting with Mr. Niman was about aemining' me for information relevant to his case with Mr. Hogarth". In Boktor, when addressing similar allegations of improper conduct made by the moving party against counsel, Stinson J. held (Boktor, at para. 37):
[I]t makes little sense that Mr. Maurer would act in the fashion alleged, putting his personal and professional reputation at risk for no good reason. It is illogical that he would conduct himself in such a fashion, in the context of a lawsuit such as this, with no compelling reason to do so. The defendants have offered no logical explanation for why Mr. Maurer would conduct himself as the defendants allege he did. Viewed in this light, together with his contemporaneous memo to file (which was prepared well before any controversy arose regarding the contents of the telephone conversation), Mr. Maurer's evidence makes sense and I prefer and accept it.
69I adopt the same analysis in the present case. When making a finding of credibility as to the contents of the conversation, the suggestion by Antony that he believed Niman was "mining" him for information about the Hogarth litigation, particularly when Antony does not allege any other issue discussed about Connie at that meeting (other than that they were dating), impugns his credibility in light of the evidence from Niman and MacKenzie and the contemporaneous notes.
70For these reasons, I find that the alleged conversation in which Antony claims he told Niman that he was dating Connie did not occur.
2) Even if the conversation did occur, no confidential (or relevant) information was disclosed
71Even if I had found that the conversation did occur, it would still not establish that the Nella and Hogarth litigations were sufficiently related.
72Under the MacDonald Estate test, the court must be satisfied (either by presumption or on the evidence) that confidential information relevant to the new retainer was disclosed.
73However, the fact that Antony and Connie were dating as of September 2015 was not confidential. They were in a "committed relationship" since "late 2014" and there is no evidence that they kept the relationship secret.
74Tim gave unchallenged evidence that when he saw Connie and Antony having dinner in the summer of 1995, "[t]hey were hosting a group of friends and it was evident to me that there was no effort on their part to maintain any confidentiality of their relationship". Antony did not contradict that evidence in his reply affidavit, which he filed to address the allegations in the Niman, MacKenzie and Tim affidavits.
75Further, the fact that Antony and Connie were dating would not be relevant to the Hogarth litigation. While the issue of whether Connie was spending extravagant sums on travel with Antony after separation is raised in the answer, there is no evidence from Antony that he discussed that issue at the meeting.
76To the contrary, Antony's evidence was that "we discussed all of the various aspects of my case with my wife", and even after the alleged discussion about dating Connie, Niman then "inquired as to whether I'm an aeoutdoors guy' and then spoke to me about the Toronto Blue Jays before continuing to ask me questions and discussing the confidential details of my case with me".
77Antony's evidence was that three days later, "I emailed Mr. Niman to thank him for meeting with me and to let him know that I had decided to retain another lawyer. Mr. Niman wished me good luck and told me that he would send me his account for the consultation."
78Consequently, I do not find that the "dating" conversation, even if it took place, could ground a basis for removal of Niman as Tim's counsel.
(iv) The allegations in the answer
79The moving parties rely on the allegations in the answer in which Tim pleaded
(a) "In 2005, Tim discovered a series of text messages between Connie and her current boyfriend, Antony Nella, the content of which led Tim to conclude that she was then having an affair. Tim was devastated. Connie denied the affair, and Tim took her at her word" (para. 40); and
(b) "Rather than curb her spending [after the separation], Connie embarked on an unprecedented spending spree. Expenditures included extravagant travel, such as Connie's taking her boyfriend to luxurious resorts in Thailand and Jamaica" (para. 59).
80These allegations do not support the moving parties' submission that Niman obtained relevant confidential information from Antony. In particular, the uncontested evidence of Tim is that
(i) "I am the source of the information underlying the allegations contained in paragraphs 40 and 59 of my Answer in this proceeding dated January 29, 2016";
(ii) "Regarding paragraph 40, in 2005, both Connie and I had the same type of mobile phone. I accidently picked up her phone, thinking that it was mine, and discovered messages between Connie and Antony Nella which led me to believe that they were having an affair. When I confronted Connie about the messages, she denied that she and Antony were having an affair"; and
(iii) "Regarding paragraph 59, in March 2015, Connie and Antony travelled together and stayed at the Half Moon Bay resort. Connie paid for the trip with an American Express card, and the charge appeared on my account statement the next month".
81The moving parties challenged Tim's evidence on the basis that the American Express statement does not demonstrate that (i) Connie paid for Antony's airline ticket or (ii) Antony attended on the trip. However, Tim does not say that he learned of their alleged joint travel from the American Express account, but only that Connie paid for the trip with that credit card.
82Niman's unchallenged evidence was that Antony was not the source of the information that gave rise to either allegation.
83Further, Antony filed no evidence to challenge Niman's and Tim's clear statement that Antony had not provided the information.
84Consequently, there is no basis to find that Antony provided any confidential information which formed the basis for the allegations in the answer.
85The moving parties submit that their motion is also "prophylactic", in that it seeks to avoid "potential conflicts before they actually arise in the course of the proceeding" (Consulate Ventures, at para. 14). However, there is no allegation in the answer relevant to Connie and Antony dating in 2015.
86Further, counsel for Antony could not identify any evidence from the sealed document brief relevant to whether there were text messages that could have led to a suspicion of an affair in 2005, nor whether Connie was spending money on Antony after the separation. Similarly, there is no such evidence arising from the meeting, even if Antony's evidence of his "dating" discussion is accepted.
87There must be a "real possibility" that the confidential information is related to the existing issues or those to which the litigation might expand. That test is not met on the evidence in this case.
(v) Conclusion on the "sufficiently related" test
88For the above reasons, I find that the moving parties have not established that the Nella litigation and Hogarth litigation were sufficiently related such as to result in a presumption that Antony provided confidential information to Niman relevant to the Hogarth litigation. The evidence about the meeting and the documents and e-mails provided in relation to the meeting do not meet the requirement of "clear and cogent" evidence necessary to remove Tim's counsel of choice.
89A fair-minded and reasonably informed member of the public would not conclude that the proper administration of justice compels Niman's removal. The subjective "perspective", failure to "understand how it can possibly be fair", "upset", "concern[s]" and being "troubled", relied upon by the moving parties in their affidavits, are all irrelevant to the objective determination that is not supported by the evidence.
2. The "actual possession" test
90Further, on the above evidence, Antony has not established that Niman actually possesses relevant confidential information from him arising from the meeting. Even if Antony's evidence is accepted that he advised Niman that Antony was dating Connie, there is no evidence to support that this information was confidential or relevant.
Issue 2: Did Niman breach a duty of loyalty?
91In addition to a duty of confidence, a lawyer owes former clients a limited duty of loyalty not to act against them. I address the applicable law and relevant evidence below.
a) The applicable law
92In McKercher, McLachlin C.J.C., relying on the decision of the Supreme Court in R. v. Neil, [2002] 3 S.C.R. 631, distinguished between the law of conflicts and a duty of loyalty.
93With respect to the "law of conflicts", McLachlin C.J.C. held that a lawyer's main duty to a former client is to refrain from using confidential information. McLachlin C.J.C. held (McKercher, at para. 23):
The law of conflicts is mainly concerned with two types of prejudice: prejudice as a result of the lawyer's misuse of confidential information obtained from a client; and prejudice arising where the lawyer "soft peddles" his representation of a client in order to serve his own interests, those of another client, or those of a third person. As regards these concerns, the law distinguishes between former clients and current clients. The lawyer's main duty to a former client is to refrain from misusing confidential information. With respect to a current client, for whom representation is ongoing, the lawyer must neither misuse confidential information, nor place himself in a situation that jeopardizes effective representation.
94With respect to the duty of loyalty to an existing client, a law firm cannot act for a current client whose interests are directly adverse to the immediate interests of another client, even if the two mandates are unrelated, unless both clients consent and the law firm reasonably believes it can represent each client without adversely affecting the other (McKercher, at para. 27). This duty of loyalty protects against the risk that a lawyer might "soft peddle" his or her representation of a client in order to serve the lawyer's interests (McKercher, at paras. 23, 27).
95It is settled law that a lawyer can act against a former client, so long as the lawyer does not breach the duty of confidence.
96A lawyer also has a limited duty of loyalty to a former client. In particular, even if no confidential information was provided by a former client, a solicitor retained cannot "subsequently take an adversarial position against the client with respect to the same subject matter that he was retained on" (Consulate Ventures, at para. 26).
97Further, a lawyer cannot act take "an adversarial position against the former client with respect to the legal work which the lawyer performed for the former client or a matter central to the earlier retainer" (Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd., 2008 NSCA 22 ("Brookville Carriers"), at para. 17).
98Examples of the above instances of a duty of loyalty to former clients are reviewed in detail by Cromwell J.A. (as he then was) in Brookville Carriers. Cromwell J.A. reviewed the example of Credit Suisse First Boston Canada Inc. (Re), 2004 LNONOSC 774 (Sec. Comm.), in which the law firm was in breach of a duty of loyalty because it had given advice to the Toronto Stock Exchange on the establishment of Market Regulation Services and then acted for Credit Suisse and raised defences that attacked that work and advice (Brookville Carriers, at paras. 43-44).
99Similarly, Cromwell J.A. reviewed the decision in Chiefs of Ontario v. Ontario (2003), 63 O.R. (3d) 335 (S.C.J.) ("Chiefs of Ontario"), in which the law firm acted for the Chiefs of Ontario against a First Nation on casino revenue matters, alleging deception and bribery, when the law firm had acted for that First Nation with respect to the same casino revenue matters (Brookville Carriers, at para. 45).
100The duty of loyalty is based on the need to foster and maintain public confidence in the integrity of the legal profession and in the administration of justice (Perell (as he then was) in Conflicts of Interest in the Legal Profession (Toronto: Butterworths, 1995), cited at Brookville Carriers, at para. 48). The duty protects "the confidence of every litigant that their legal advisers will not later attack their honour in matters closely related to their confidential retainers" (Chiefs of Ontario, at para. 112; cited at Brookville Carriers, at para. 45).
101In Brookville Carriers, Cromwell J.A. engaged in a thorough review of the law. He held that "the scope of this duty [of loyalty] is very limited absent confidential information being at risk". Crowell J.A. held that (Brookville Carriers, at para. 51):
Under the principle relevant here, that concerning acting against a former client in a related matter, the focus is different. As the cases and commentators show, the scope of this duty is very limited absent confidential information being at risk. This broader continuing duty of loyalty to former clients is based on the need to protect and to promote public confidence in the legal profession and the administration of justice. What is of concern is the spectre of a lawyer attacking or undermining in a subsequent retainer the legal work which the lawyer did for the former client or of a lawyer effectively changing sides by taking an adversarial position against a former client with respect to a matter that was central to the previous retainer.
102Consequently, the scope of a duty of loyalty to former clients is restricted to attacking or undermining in a subsequent retainer the legal work which the lawyer did for the former client or a lawyer effectively changing sides by taking an adversarial position against a former client with respect to a matter that was central to the previous retainer.
103The moving parties rely on the comments of Doherty J.A. in Consulate Ventures that a lawyer's duty of loyalty "flows from a broader concept of fidelity that is essential to the proper functioning of the client/solicitor relationship" (Consulate Ventures, at para. 22). However, in that passage relied upon by the moving parties, Doherty J.A. states that the duty is based on the requirement that "clients must be confident that their lawyers will not become their adversaries' lawyers at some subsequent point in the course of the same dispute", an analysis which is consistent with the "very limited" scope of the duty of loyalty to a former client discussed by Cromwell J.A. in Brookville Carriers.
b) Application of the law to the evidence on the motion
104There is no evidence to support the "very limited" duty of loyalty (if it existed as Antony never retained Niman) which might be owed by Niman to Antony.
105In particular, there is no evidence that Niman seeks to attack or undermine legal work (if any) he did for Antony, nor that Niman has taken or will take an adversarial position against Antony that was central to the previous retainer.
106Even if it is accepted that Antony or his counsel forwarded confidential financial information relevant to the Nella litigation to Niman for his review, and advised Niman that he was dating Connie, "public confidence in the legal profession and the administration of justice" would not be protected or promoted when there is no connection between the Nella litigation and the Hogarth litigation, other than the coincidental fact that Antony and Connie are dating. There is no evidence that there is any connection between the "legal work" on the Nella litigation and Niman's retainer in the Hogarth litigation, and there is no evidence that Niman is taking an adversarial position against Antony on any issue arising in the Nella litigation.
107For these reasons, Niman is not in breach of his duty of loyalty to Antony.
Issue 3: Duty of candour
108The moving parties rely on a duty of "candour" owed to the client, which requires the lawyer to disclose any factor relevant to the lawyer's ability to provide effective representation (McKercher, at para. 45). However, given that I have found that there was no discussion about Antony dating Connie, it cannot be said that Niman breached any such duty to Antony by failing to advise Antony that Niman had a conflict with another client.
109While the moving parties submit that Niman ought to have "caught" the potential conflict through a more thorough conflict check (which would have asked Antony to list anyone he was currently dating), there is no evidence that such a conflict check is required, and in any event, there is no suggestion that the fact that Antony and Connie were dating in 2015 was a "factor relevant to the lawyer's ability to provide effective representation".
110Finally, even if Niman ought to have "caught" the conflict either at a conflict check or when told that Antony and Connie were dating (if the conversation took place), it is settled law that the duty to a former client is based on a duty of confidence with a limited duty of loyalty. Otherwise, any failed conflict check would be sufficient to remove counsel, which is not supported in the law.
Issue 4: Potential cross-examination of Antony as a witness
111Finally, the moving parties submit that "as [Connie] will need to call [Antony] to give evidence at trial (given the allegations that [Tim] has made in his Answer), it would not be fair or appropriate to allow [Tim] to have [Antony's] own lawyer involved in the cross-examination".
112However, the concern against cross-examination of a former client is based on the same duty of confidence discussed above. In R. v. Woodcock, 2010 ONSC 484 (S.C.J.) ("Woodcock"), relied upon by the moving parties, Pardu J. (as she then was) held (Woodcock, at para. 7):
Where the lawyer has him or herself received confidential information relevant to the matter at hand from a former client, it is clear that he cannot cross examine that former client on behalf of a new client.
113Similarly, in R. v. Brissett (2005), 74 O.R. (3d) 248 (S.C.J.) ("Brissett"), Hill J. stated (Brissett, at para. 39) that "[c]ross-examination of a former client raises the potential for a conflict of interest as information acquired in the course of representing a client may not subsequently be used or revealed by the lawyer to the disadvantage of his or her former client".
114The moving parties submit that Antony could be called as a witness to address the issues of the alleged text messages in 2005 or whether Connie paid for his travel costs after her separation from Tim. However, as there is no presumption of "sufficiently related" retainers or evidence that confidential information on those issues was transmitted, there is no concern that Niman would have "received confidential information relevant to the matter at hand" from Antony.
115Consequently, it would not be unfair or inappropriate to allow Niman to cross-examine Antony on the issues raised in the answer.
Order and Costs
116For the above reasons, I dismiss the motion. The parties asked for the opportunity to deliver costs submissions in writing. Tim may deliver those submissions to the Family Law Office no later than June 30, 2016, limited to a maximum of three pages (exclusive of a bill of costs). The moving parties can deliver responding costs submissions in writing, limited to three pages (exclusive of a bill of costs), to the Family Law Office, no later than July 14, 2016. Tim may deliver reply costs submissions of no more than two pages to the Family Law Office no later than July 24, 2016.
117I order that the sealed document brief be sealed to protect the disclosure of any potential privileged or confidential documents to the Nella litigation. I make this order on the consent of all parties.
Motion dismissed.
Notes
1 The other counsel was also recommended by Snelius and is Antony's current counsel, Ms. Lenkinski.
2 Including his law firm.
3 The motion was argued on the basis that Niman had breached the obligations he allegedly owed to Antony as a lawyer, but all references would, by necessity, include the same conduct of MacKenzie. For the purposes of these reasons, all references to Niman's alleged conduct include the alleged conduct of MacKenzie, unless otherwise specified.
4 The paragraph references in this citation do not match those of the citation at 1990 32 (SCC), 1990 CarswellMan 233 (S.C.C.) produced by the moving parties. As Tim produced the official version of the decision (which does not have paragraph numbers), I rely on the paragraphs as numbered in the QuickLaw version of the official reported [1990] 3 S.C.R. 1235, [1990] S.C.J. No. 41 decision.
5 Maxine Kerr, who is not affiliated with Niman, and who appeared at the motion but not as counsel for Tim.
6 Antony's counsel's submissions about the contents of the sealed document brief were made in the absence of counsel for Connie, to ensure protection of the privilege attached to the brief.
7 Without reviewing any such documents.