Court File and Parties

CITATION: McCoy v. Loveday, 2017 ONSC 4998

COURT FILE NO.: CV-15-543523

MOTION HEARD: 20170821

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Joel McCoy, Plaintiff

AND:

Christine Loveday, Defendant

BEFORE: Master Jolley

COUNSEL: Alex Morrison, Counsel for the Moving Party Defendant

Ian Drong, Counsel for the Responding Party Plaintiff

HEARD: 21 August 2017

REASONS FOR DECISION

[1] The plaintiff has a motion pending to remove Benson Percival Brown LLP as counsel for the defendant on the basis of a conflict of interest. In support of that motion the plaintiff swore an affidavit on which he was cross examined. He refused to answer certain questions on the basis that the information sought was privileged. The defendant brings this motion to compel answers to those refused questions.

[2] The plaintiff alleges that he was involved in a motor vehicle accident and suffered a traumatic brain injury as a result. He alleges that he discussed his situation with and gave confidential information to two lawyers at Benson Percival and obtained legal advice from each of them. Benson Percival was subsequently retained by the defendant.

[3] Michael Schmidt was one of the lawyers with whom the plaintiff spoke. Mr. Schmidt was acting as a mediator in a case where the plaintiff was representing one of the parties. The plaintiff alleges that he spoke to Mr. Schmidt during the mediation about his accident and on other occasions while the two saw each other at the mediation office. The second lawyer, Natasha Razack, and the plaintiff had a file together. The plaintiff alleges that he spoke to Ms. Razack about his accident while they were together outside trial scheduling court waiting for an endorsement. Both Mr. Schmidt and Ms. Razack were lawyers at Benson Percival at the time these conversations are alleged to have taken place.

[4] The plaintiff deposes in his affidavit in support of his motion to remove Benson Percival as counsel for the defendant that, in the course of those discussions with either or both of Mr. Schmidt and Ms. Razack, he provided them with confidential information about his injury and that they discussed “the circumstances, facts and legalities surrounding my case”. He deposed that they talked about “the liability of the defendant, issues pertaining to threshold in my case … details of treatment and findings of assessments”.

[5] He was asked on cross examination for the details of what he told the two lawyers and what they told him. He has refused to answer those questions, claiming that the contents of the conversations are covered by solicitor client privilege.

[6] The defendant argues that that full disclosure of these conversations is relevant and necessary for the recusal motion to determine whether or not the plaintiff entered into a solicitor client relationship with the lawyers and, in the event it is found there was such a relationship, to rebut any presumption that the lawyers received confidential information from the plaintiff and that the information would be used to the plaintiff’s detriment (MacDonald Estate v. Martin 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235).

[7] The defendant also takes the position that if she can show there was no solicitor client relationship formed between the plaintiff and Benson Percival, there is no presumption that confidential information passed to the lawyer and the plaintiff must therefore disclose what he said to prove that he provided confidential information to Benson Percival.

[8] The plaintiff’s position is that he disclosed confidential information to Mr. Schmidt and Ms. Razack on a range of topics relevant to his accident and received legal advice from the lawyers in turn. He argues that a solicitor client relationship was created in each instance. It would be unfair to have the lawyers to whom he provided this information act against his interests using information he gave to them.

[9] The plaintiff takes the position that the generic list of topics that he indicated were discussed (the circumstances, facts and legalities of his case, issues of liability and threshold, details of his treatment and findings of medical assessments) is sufficient to prove that he gave the lawyers confidential information and they do not need further particulars, particularly when the content of those discussions is privileged.

[10] The parties agreed that the refusals would stand or fall as a group with one qualification and one exception. First, the question at 503-505 would be treated as a refusal as it was not clear on the record what the status of the question was. It was admitted for the purposes of this motion that the question would have been refused on the same solicitor client privilege basis. Second, question 461 fell outside the scope of the other questions as it related to discussions between the plaintiff and his current counsel and not with the Benson Percival lawyers.

[11] The questions refused generally ask for particulars about what the plaintiff told the lawyers and what advice they gave him. The plaintiff is being asked to repeat information that he says he already gave the lawyers and advice that he already got from those lawyers, which information and opinions form the basis of his recusal motion.

[12] It is challenging to understand how the defendant can test the plaintiff’s assertion that he gave the lawyers confidential information without the plaintiff disclosing that the plaintiff says he told them. The plaintiff’s argument is somewhat circular – he argues that Benson Percival should be disqualified because it received confidential communications from him but that he should not be required to disclose that information because it is confidential/privileged. Further, he says that he obtained legal advice from the Benson Percival lawyers but won’t disclose what that advice was because it is privileged.

[13] For solicitor client privilege to attach to a communication, it must meet the following prerequisites (Jetport Inc. v. Global Aerospace Underwriting Managers 2013 ONSC 6380 at para 43):

(1) the communication must be between a solicitor and client;

(2) it must entail the seeking of legal advice; and

(3) the advice sought must be intended to be confidential by the parties.

[14] As stated in MacDonald Estate, in order to determine whether a lawyer should be disqualified, two questions need to be answered:

(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.

[15] The court in MacDonald Estate also noted that where a solicitor and client relationship existed, there is a presumption that confidential information was provided to the lawyer. However, this presumption can be refuted by showing that no information was imparted which would be relevant.

[16] As to the first part of the test, the lawyers says they did not receive confidential information from the plaintiff. The plaintiff says he gave them confidential information. Given the lawyers deny receiving confidential information, I find the law firm must be able to test the plaintiff’s assertion by having the plaintiff tell them what confidential information he gave them. Only then will they be in a position to argue (a) that the plaintiff did not tell them that information or (b) that the information was not confidential.

[17] This will also be relevant to the second part of the test on the underlying motion i.e. whether there is a risk that the information will be used to the prejudice of the plaintiff. Unless the plaintiff sets out what the information is that could be used against him, Benson Percival will not be able to argue that there is no prejudice to the plaintiff because (a) the information was generic or (b) was already in the possession of the defendant, through the plaintiff’s earlier disclosures to the defendant’s insurer. The information sought by the defendant may also be relevant to whether there was a reasonable expectation that a solicitor client relationship was being established when those conversations took place and whether the advice sought was intended to be confidential.

[18] I note in the matter of Sikes v. EnCana Corporation 2016 FC 110, affirmed at 2017 FCA 37 the plaintiff argued that he had given confidential information to the law firm for EnCana when exploring a retainer and that he had received advice about his case from the law firm. He then brought motion to remove the law firm for EnCana on the basis that the lawyer received relevant confidential information from him that could be used to his prejudice. I note that the plaintiff was cross examined on his affidavit in support of his motion and gave evidence about what he told the law firm and what advice he alleged the law firm gave him. Discrepancies were revealed in the course of that cross examination, including about whether the lawyer had given the plaintiff generic advice, as the lawyer alleged or had given the plaintiff advice about the plaintiff’s specific circumstances, as the plaintiff alleged. After cross examination, the law firm was able to demonstrate both that the plaintiff had not provided it with relevant confidential information and that the firm had not provided the plaintiff with legal advice. The court was able to reach its decision on the recusal motion on a full record.

[19] The court may ultimately determine that there is a conflict of interest and that Benson Percival should be removed as counsel for the defendant but that recusal motion is not before me. What is before me is whether these refused questions are relevant to that upcoming recusal motion.

[20] I am of the view that the answers sought are relevant to that motion and are required to be disclosed in order to permit the defendant to respond. The answers will go both to whether the plaintiff provided the lawyers with information, whether that information was confidential and whether that information had already been disclosed by the plaintiff to the defendant’s insurer. It may also shed light on whether there was a reasonable expectation that a solicitor client relationship was being created and whether the information the plaintiff gave was intended to be confidential.

[21] Further, it will assist the court in knowing whether the lawyers did in fact give legal advice, whether they gave generic advice (such as was the case in Sikes) or whether they gave advice particular to the plaintiff and his circumstances, as he alleges.

[22] The plaintiff argues that the disclosure of this information will put Benson Percival in a conflict now if they were not in a conflict before. As noted above, the plaintiff is only being asked to repeat what he says he already told the lawyers and to repeat the advice he says the lawyers already gave him. There is no new information sought. Even if the plaintiff’s position is correct on this point, then the plaintiff may argue this on the return of the motion as a further ground for the firm’s removal.

[23] Question 503-505 is of particular importance as that answer may determine either that the information was not confidential (as it had already been given to the defendant’s insurer) or that there is no prejudice (as the defendant already had the information that the plaintiff gave the lawyers).

[24] Question 461 need not be answered as it does not relate to information the plaintiff gave to Mr. Schmidt or to Ms. Razack or to advice that he received from those lawyers.

[25] The refused questions other than Question 461 are to be answered within 30 days of this order.

[26] The defendant was successful on the motion and I award her partial indemnity costs in the $2,950 inclusive of HST and disbursements (excluding the cost of the transcript which can be claimed on the recusal motion).

Master Jolley

Date: 22 August 2017