Court File and Parties

COURT FILE NO.: CV-18-599348

MOTION HEARD: 20181205

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Kayla Bacher, Plaintiff

AND:

Sterno Home, Defendant

BEFORE: Master Abrams

COUNSEL: J.K. Grossman, for the Plaintiff

S.R. Sasso, for the Defendant

HEARD: December 5, 2018

REASONS FOR DECISION

[1] While an employee of the defendant, Ms. Bacher took maternity leave. When it was time for Ms. Bacher to return from maternity leave, she and the defendant could not agree on the terms of her return. On Ms. Bacher’s behalf and before this proceeding was commenced, lawyer Jerrod Grossman reached out to Gary Luftspring, managing partner of Ricketts Harris LLP, to arrange a call with Ms. Bacher, so that she might discuss her circumstances with him. Mr. Grossman is Ms. Bacher’s husband.

[2] The evidence of Mr. Luftspring is that he did speak with Ms. Bacher, but he did not open a file; he did not bill or receive compensation for his time; and, he cannot recall what was discussed. It is clear, though, that he recalls having spoken with Mr. Grossman about his wife and he recalls having been contacted by Ms. Bacher. Ms. Bacher says that she and Mr. Luftspring spoke twice.

[3] A few months after Ms. Bacher and Mr. Luftspring spoke, Ms. Bacher brought claim against her employer. Mr. Grossman is lawyer of record for her. Ms. Sanche, a lawyer at Ricketts Harris LLP, was retained by the employer defendant to defend Ms. Bacher’s claims. Ms. Sanche delivered a notice of intent to defend on the defendant’s behalf.

[4] Before opening her file, Ms. Sanche conducted a conflict search. Mr. Luftpring disclosed the fact of his discussions with Ms. Bacher; but, both he and Ms. Sanche depose that no information of any kind was relayed by him to Ms. Sanche about Ms. Bacher and her circumstances[^1] (and none will, Mr. Sasso says, if Ms. Sanche is permitted to continue to act for the defendant).

[5] Ms. Sanche deposes that, before this action was commenced by Ms. Bacher, she communicated with Ms. Bacher and Mr. Grossman on a few occasions, advising that she and her firm were counsel to the defendant (and, in fact, had been since 2012). Ms. Sanche says that, at no time before this action was commenced, did Ms. Bacher or Mr. Grossman question whether she or her firm was in a position of conflict (or notify her that Ms. Bacher had spoken with Mr. Luftspring).

[6] In now challenging the right of the defendant to have counsel of its own choice, Ms. Bacher says that she disclosed confidential information to Mr. Luftspring: information that is critical and would be prejudicial to her if disclosed to the defendant or Ms. Sanche. Some of the information that Ms. Bacher says is confidential was filed by her on this motion, without a request having been made by her for a sealing or other protective Order. Mr. Sasso says that any privilege which may have attached to that information could thus be said to have been waived.

[7] There is no question but that “…a litigant’s counsel of choice may not be removed lightly. The decision to disqualify is a discretionary one, to be made only in the clearest of cases… The overarching test to be applied on a motion to remove a lawyer from the record is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires it. This determination is fact-specific and based on an examination of all the factors in the case and the specific reason why the motion is being brought” (Tiffin v. Teplitsky Colson LLP, 2018 ONSC 5122 (S.C.J.)), at paras. 29-31).

[8] Here the motion is brought because of a concern on the part of Ms. Bacher that Mr. Luftspring has conveyed or will convey confidential information to Ms. Sanche and, thus, to the defendant. Mr. Luftspring and Ms. Sanche both deny that this is so. Further, they both attest to the fact that they will not discuss Ms. Bacher’s case at any future time and that Mr. Luftspring will not access Ms. Bacher’s file. Ms. Sanche also says that Mr. Luftspring has never, in the past, been involved in her firm’s representation of the defendant.[^2]

[9] Then too, and without now disclosing the nature of what was imparted to Mr. Luftspring, I can indeed confirm (as discussed in paragraph 6, above) that some of what Ms. Bacher shared with Mr. Luftspring is detailed in Ms. Bacher’s motion material (including as it relates to evidence that, Ms. Bacher believes, “would jeopardize [the defendant’s] legal argument”: para. 36 of Ms. Bacher’s affidavit of August 22/18). As in Mayer v. Rubin, 2017 ONSC 1404, on which the defendant relies, “…the [plaintiff has] disclosed voluntarily…the very information for which [she]…seek[s] protection”; but, unlike in Mayer v. Rubin, the defendant here is not saying that the confidentiality of the plaintiff’s disclosure is lost. The defendant and the members of the firm of lawyers acting for it, save Mr. Sasso, have not viewed the plaintiff’s motion materials and they undertake not do so.

[10] Mr. Sasso says, and I agree, that the safeguards that the defendant and the firm of Ricketts Harris LLP have put in place in agreeing not to permit anyone working on the defendant’s file or the defendant to view Ms. Bacher’s confidential information, as referenced in her motion materials, afford Ms. Bacher protections that will be lost if Ricketts Harris LLP is removed from the record. Mr. Sasso further says that he is not opposed to the court making an Order that the motion materials be sealed so that Ms. Bacher will have added comfort.[^3] Such an Order is now made.

[11] I can understand the reason for Ms. Bacher’s expression of concern. In the particular circumstances of this case, though, I cannot say that her concern is warranted. On the evidence before me (including Ms. Bacher’s disclosure in her motion materials some of what was imparted to Mr. Luftspring--herself revealing information for which she now seeks protection; and the information of Mr. Luftspring and Ms. Sanche as to Mr. Luftspring’s (lack of) recall and the lack of communication on the issue of Ms. Bacher and the defendant as between Mr. Luftspring and Ms. Sanche), and with (a) the undertakings given as to continued silence on the issues relating to Ms. Bacher as among members of the Ricketts Harris firm, and (b) the added comfort now afforded in the form of a sealing Order with respect to the motion materials (and the non-disclosure/promised non-disclosure by Mr. Sasso of the contents of the motion materials to others in his firm and to the defendant—protections to which Ms. Bacher would not be entitled, ordinarily), I cannot say that a fair-minded, reasonably informed member of the public would deprive the defendant, in this case and on these facts, of its counsel of choice. As Mr. Sasso posits, and I agree, “there is no practical or principled reason [in these circumstances] why Ms. Sanche should not remain as [the defendant’s] counsel” (paragraph 26 of the defendant’s factum). The plaintiff’s motion is therefore denied.

[12] Failing agreement as to the costs of this motion, I may be asked to rule—this by letter of request sent by the 28th of February/19.

February 6, 2019 _______________________

[^1]: Mr. Luftspring deposes that he recalls none.

[^2]: Ms. Bacher says that “[m]ost concerning [is the lawyers’ attestation] that their client [believes] no conflict exists” (para. 31 of Ms. Bacher’s affidavit of August 22/18). That statement on the part of Ricketts Harris LLP is not determinative of the issues. I agree with Ms. Bacher that the issue is not one on which the opinion of the defendant (as to whether there is/isn’t a conflict) carries or should carry sway.

[^3]: But even if the confidentiality was not lost (and I believe that it was), I accept that “a lawyer who has relevant confidential information cannot act against his client or former client. In such a case the disqualification is automatic”. But “…[t]he answer is less clear with respect to the partners or associates of the firm”, as here. While I accept that “…undertakings and conclusory statements in affidavits without more are not acceptable”, there is more. Ricketts Harris LLP and the defendant have provided the court and the plaintiff with “some additional guarantees [see: paragraph 11] that confidential information will under no circumstances be used” (MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235).