COURT FILE NO.: FC-18-FO-193
DATE: 2020/12/18
WARNING: This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:
87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CHILDREN’S AID SOCIETY OF THE REGION OF WATERLOO, Applicant (Moving Party)
AND:
J. N., Respondent Mother
AND:
A.F., Respondent Father
AND:
M.S., Respondent Father
BEFORE: Madam Justice J. Breithaupt Smith
COUNSEL: Mr. Jeffrey Boich, for the Applicant Society
Ms. Anna Towlson, for the Respondent Mother, Moving Party
Mr. Patrick Brohman, for the Respondent Father, A.F., with Mr. Maciej Milczarczyk appearing as his agent on the Motion
Ms. Phaedra Klodner, for the Respondent Father, M.S.
Ms. Diane L. McInnis, for the Children through the Office of the Children’s Lawyer
HEARD: December 17, 2020
E N D O R S E M E N T -- COVID 19 PROTOCOL
[1] AS A RESULT OF COVID-19 the regular operations of the Superior Court of Justice are suspended at this time, as set out in the Notice to the Profession dated March 15, 2020 available at https://www.ontariocourts.ca/scj/covid-19-suspension-fam/
[2] In accordance with the consolidated Regional Notices to the Profession issued on June 26, 2020 (effective July 6, 2020) and on December 1, 2020 (effective December 2, 2020) and the Protocol for Central South dated April 7, 2020, the following materials were filed electronically:
a. Notice of Motion dated October 30, 2020;
b. Affidavit of Maternal Grandfather dated October 30, 2020;
c. Affidavit of Patrick Brohman dated November 10, 2020;
d. Reply Affidavit of Mother, J.N., dated November 20, 2020;
e. Reply Affidavit of Patrick Brohman dated November 30, 2020;
f. Factum of Mother, J.N., dated November 27, 2020 with authorities hyperlinked;
g. Factum of Father, A.F., dated December 2, 2020 with hyperlinked Book of Authorities; and
h. Affidavits of Service.
[3] This is the argument of Mother’s Motion seeking to have Mr. Brohman removed as A.F.’s solicitor of record. None of Mr. Boich, Ms. Klodner or Ms. McInnis take any position on behalf of their respective clients on Mother’s Motion. Notably, pleadings are complete and a Trial Management Conference has been held, and thus the matter is ready to be placed on a trial list. Further, the parties continue to engage with mediation in the faint hope that settlement will be possible.
[4] At the outset I note that all counsel in this matter have behaved in a highly professional manner. Having worked with each of them in practice, and now having the great privilege to see them from a different perspective from the Bench, I know each to be an advocate of the highest integrity. Ms. Towlson took pains to point out that the question in such a matter is never a reflection of the actions of counsel, but is an assessment viewed from the perspective of the reasonable person who is adequately informed of the circumstances. Indeed, when Mother raised the fresh evidence that she had recalled a telephone conversation with Mr. Brohman’s assistant in the Summer of 2019, Ms. Towlson offered to author the Motion Form seeking leave to provide Mr. Brohman with a further right of reply. Inasmuch as today’s topic is a sensitive one, counsel have “a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that [he or she] thinks will help the client’s case…”[^1] I therefore sincerely hope that this matter will not cause any awkwardness between counsel moving forward.
Issue #1 – Conflict of Interest
[5] Counsel agree that the law regarding removal of a solicitor on the basis of conflict of interest is well-settled. Disqualification of counsel calls into play issues of procedural fairness and of the integrity of the justice system in the eyes of the general public.[^2] The Law Society of Ontario’s Rules of Professional Conduct confirm that a lawyer shall not act against a former client in the same matter; any related matter; or any other matter if the lawyer has relevant confidential information arising from the original retainer. However, a lawyer may properly act against a former client in a fresh and independent matter wholly unrelated to the scope of the prior retainer where any information obtained would be irrelevant.[^3] In MacDonald Estate v. Martin, Justice Sopinka writing for the majority summarized the law as follows:
The law in Canada and in other jurisdictions has adopted one of two basic approaches in determining whether a disqualifying conflict of interest exists: (1) the probability of real mischief, or (2) the possibility of real mischief. The term "mischief" refers to the misuse of confidential information by a lawyer against a former client. The first approach requires proof that the lawyer was actually possessed of confidential information and that there is a probability of its disclosure to the detriment of the client. The second is based on the precept that justice must not only be done but must manifestly be seen to be done. If, therefore, it reasonably appears that disclosure might occur, this test for determining the presence of a disqualifying conflict of interest is satisfied.
[6] At a minimum, therefore, a lawyer will be in a disqualifying conflict of interest if it reasonably appears that disclosure of confidential information might occur in a subsequent matter to the detriment of the former client. Three components are necessary: (1) the existence of a prior solicitor-client relationship; (2) the lawyer’s actual possession of relevant confidential information regarding the prior client; and (3) the reasonable possibility of disclosure of such information.
Mr. J. N., Maternal Grandfather
[7] Mr. Brohman agrees that he was consulted by Maternal Grandfather, “years ago” (to quote Mr. J.N.’s evidence). Having reviewed his records, Mr. Brohman determined that he met with Mr. J.N. on February 24, 2012 and on March 5, 2012 and spoke with him by telephone on a couple of additional occasions in that time frame. Mr. Brohman attests that he “prepared the necessary pleadings for a custody order” regarding an unrelated child (a cousin to Mother’s children) but that, at the second meeting when such documentation was to be reviewed and signed by Mr. J.N., Mr. J.N. “instructed [him] not to continue with the custody application.” This ended the solicitor-client relationship between Mr. Brohman and Maternal Grandfather.
[8] It is not apparent to me that Mr. Brohman is in actual possession of confidential information relevant to the facts in issue in this case. Mother argues that Maternal Grandfather’s police background check, which would have been obtained as part of the preparation of a non-parent application for custody under Rule 35.1 of the Family Law Rules, is both confidential and relevant. She argues that the Respondent Fathers in this matter are questioning the integrity of her father’s character, and that the timing of the request for Maternal Grandfather’s police background check is close to the start of Mr. Brohman’s retainer and therefore suspicious. Significant focus is placed on the difference between Mother’s relationships with each of Mr. A.F. (Mr. Brohman’s client) and Mr. M.S. (Ms. Klodner’s client), with a view to suggesting that Ms. Klodner would have no reason to request Maternal Grandfather’s criminal background check on her own client’s behalf. If Mr. M.S. has no reason to request Maternal Grandfather’s criminal background check, Ms. Klodner must therefore have colluded with Mr. Brohman, who “would not – due to a solicitor and client conflict – have been able to have made this request of [Maternal Grandfather] on behalf of A.F.” I disagree. Regardless of the timing of the request, Mother has Mr. M.S.’ child in her care on an equally-shared parenting schedule and she relies upon her father for transportation assistance when in a care-giving role. Maternal Grandfather’s criminal history, if any, is therefore perfectly relevant to Ms. Klodner’s client and Ms. Klodner’s request is not indicative of a plot.
[9] The second category of confidential information arises from casual conversations which took place between Mr. Brohman and Maternal Grandfather at the Courthouse before Mr. Brohman was retained by Mr. A.F. These conversations are problematic because: (1) it is impossible to know with certainty what actual information might have been transmitted (Maternal Grandfather’s own Affidavit is quite vague in that regard, and appears to reference complaints and opinions regarding the treatment of his daughter at the hands of the two Respondent Fathers); (2) it is unclear that such information was, in fact, “confidential” as Maternal Grandfather saw fit to discuss it in a public place; and (3) the only connection between the disclosure of the information and the prior solicitor-client relationship is one of familiarity, i.e. the information disclosed did not come to Mr. Brohman’s attention during the course of his solicitor-client relationship with Maternal Grandfather. While the exact details of the allegedly confidential information need not be set out in detail for the purpose of a motion such as this one (which would be counter-intuitive if the goal of the wronged former client is to keep such solicitor-client disclosures confidential), surely there must be some definitive nexus between the scope of the historic retainer and the current relevance of the information disclosed.
[10] On the question of disclosure, certainly if Mr. Brohman were to attempt to use the 2012 police background check to discredit Maternal Grandfather in cross-examination, that would be the type of “mischief” described in MacDonald Estate v. Martin. It seems to me that the simple fact that an updated police background check was requested demonstrates both the stale-dated nature of anything that may be found in Mr. Brohman’s 2012 file and counsel’s transparency in raising the issue of Maternal Grandfather’s criminal record in advance of trial. Simply put, any 2012 document predates both this litigation and the final separation of Mother and Mr. A.F. in August of 2013.[^4] Further, Mr. Brohman’s plan to leave all cross-examination of Maternal Grandfather to Ms. Klodner addresses any perception of procedural unfairness that could well arise in the mind of the reasonable and informed objective person.[^5]
Ms. J.N., Mother
[11] As Mr. Milczarczyk noted, when the focus shifts to interactions between Mother and Mr. Brohman’s office, the conclusion is clear – at no time was Mr. Brohman retained by Mother, and thus she is not owed any “duty of loyalty” by him. The telephone message slip filed as an Exhibit to Mr. Brohman’s Affidavit provides a sketch of the information disclosed by Mother to Mr. Brohman’s assistant (now retired), and Mother agrees that she never in fact spoke directly with Mr. Brohman. The simple reality of child protection work is that family constellations may well span across multiple files in a manner that is not seen in any other aspect of civil litigation. As Mother was never a client of Mr. Brohman’s, this part of the analysis ends here.
Issue #2 – Disposition – Disqualification
[12] If I am wrong and a reasonable and informed objective person were to perceive a conflict of interest in Mr. Brohman’s potential interaction with Maternal Grandfather in the context of his daughter’s litigation, I find that Mother’s motion must nonetheless fail on the question of disposition.
[13] In the Supreme Court of Canada case of Canadian National Railway Company v. McKercher LLP,[^6] a law firm representing the railway in multiple matters accepted the retainer for a class-action lawsuit against it. In CN v. McKercher there was no question that a conflict was self-evident, and therefore the Court’s focus was on disposition, namely whether the law firm ought to be disqualified from continuing representation of the party adverse in interest to CN. The Court set out a non-exhaustive list of three factors to guide lower courts, namely: (i) the existence of behaviour disentitling the complaining party from seeking the removal of counsel, such as delay in bringing the motion for disqualification; (ii) significant prejudice to the new client’s interest in retaining its counsel of choice, and that party’s ability to retain new counsel; and (iii) the fact that the law firm accepted the conflicting retainer in good faith, reasonably believing that the concurrent representation fell beyond the scope of the bright line rule or applicable Law Society Rules.
[14] Setting aside for the moment the question of Mother’s behaviour in raising her conversation with Mr. Brohman’s assistant at the last possible moment, I will address the other two factors from CN v. McKercher, namely prejudice to Mr. A.F. in having to retain alternate counsel and an assessment of “good faith” in Mr. Brohman’s acceptance of Mr. A.F.’s retainer. A Trial Management Conference was held in this matter in January of 2020, preceding the trial sittings that were interrupted by the COVID-19 situation. Mother has consistently complained that the delays that have taken place have been prejudicial to her position. Now that trials have resumed in earnest, this matter should be placed on the list for the sittings commencing January 25, 2021. It would be significantly prejudicial to require Mr. A.F. to retain and instruct alternate counsel, particularly considering the duration and complexity of this matter. Further, as Mr. Brohman’s formal contact with Maternal Grandfather was almost nine years ago, and as he has a clear plan in place for Ms. Klodner to conduct cross-examination of Maternal Grandfather at trial, I find that even if he was aware of an aura of conflict, Mr. Brohman accepted Mr. A.F.’s retainer in good faith, and has a cogent plan in place to ensure that he will not interact directly with Maternal Grandfather at any point in the conduct of this file. Disqualification would be an extreme remedy that would disproportionately affect Mr. A.F.’s right to retain experienced counsel of his choice. Thus, Mother’s Motion must fail under the CN v. McKercher analysis on the issue of disposition.
[15] Based on the foregoing:
Respondent Mother’s Motion to disqualify Mr. Patrick Brohman from representing Mr. A.F. is dismissed.
Costs of this Motion are reserved to the judge disposing of this matter on a final basis (i.e. whether by means of Respondent Mother’s Summary Judgment Motion or at the conclusion of a trial). Counsel are advised to prepare Costs Outlines separately with respect to this Motion.
J. Breithaupt Smith, J.
DATE: December 18, 2020
[^1]: Law Society of Ontario, Rules of Professional Conduct, commentary to Rule 5.1-1. [^2]: MacDonald Estate v. Martin, [1990] 3 SCR 1235. [^3]: Law Society of Ontario, Rules of Professional Conduct, Rule 3.4-10 and commentary thereto. [^4]: per the Answer filed by Ms. Normore dated September 30, 2014 in the action between Mr. Fisher and Ms. Normore having Kitchener Court File No. FC-14-FO-837. [^5]: To paraphrase the Ontario Court of Appeal in R. v. Robillard, 28 CCC (3d) 22 at page 28, public confidence in the administration of justice would surely be undermined by a lack of procedural fairness caused by the cross-examination of a witness by her previous counsel. [^6]: 2013 SCC 39, [2013] 2 SCR 649 (“CN v. McKercher”).