CITATION: Vered v. Innes, 2020 ONSC 894
COURT FILE NO.: FC-18-2169
DATE: February 10, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN: )
Ron Vered ) Gordon E. Sheiner for Applicant
Applicant/Responding party )
- and - )
Jennifer Innes ) Gregory A. Ste Marie for Respondent
Responding/Moving party )
) HEARD: January 14, 2020
RULING ON MOTION TO REMOVE LAWYER OF RECORD
JUSTICE SALLY GOMERY
Since late 2017, Ron Vered and Jennifer Innes have been attempting to resolve issues arising from the end of their marriage. They have, to their credit, settled issues with respect to the parenting and financial support of their four children. The equalization of family assets and Ms. Innes’ entitlement to spousal support remain hotly contested. The parties signed a marriage contract in December 2001. Mr. Vered takes the position that this limits Ms. Innes’ claims. Ms. Innes argues otherwise.
Although the parties attempted to reach a mediated settlement of the outstanding issues in 2018, they were unsuccessful, leading Mr. Vered to begin this divorce application.
In this motion, Ms. Innes seeks to remove Michael Rankin as counsel of record for Mr. Vered. Mr. Rankin was retained by Mr. Vered as trial counsel in July 2019. Ms. Innes claims that she retained Mr. Rankin in June 2018, and that this retainer precludes him from now acting for Mr. Vered. Mr. Rankin and Mr. Vered deny any disqualifying conflict of interest.
The test for disqualification
- The test for removing counsel for conflict of interest is set out in MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235. Applying that test, I must answer three questions:
Did Ms. Innes and Mr. Rankin have a solicitor-client relationship in 2018?
Did Mr. Rankin, in the context of this relationship, receive confidential information from Ms. Innes that could be used to her prejudice in this litigation?
Does the relationship and the transmission of confidential information give rise to a disqualifying conflict of interest that prevents Mr. Rankin from acting for Mr. Vered?
(1) Did Ms. Innes and Mr. Rankin have a solicitor-client relationship?
Ms. Innes and Mr. Rankin never had a face-to-face meeting in 2018 and they never executed a written retainer agreement. She says however that she provided him with confidential information that could be used to her prejudice during a phone call on June 5, 2018 and in an email on June 12, 2018. Mr. Vered concedes that, if Mr. Rankin received such information, this would give rise to a solicitor-client relationship. He denies however that it did in this case.
To determine whether a solicitor-client relationship arose, I must therefore consider and assess the evidence with respect to the two interactions between Ms. Innes and Mr. Rankin. Before doing so, I will review the chronology of events giving rise to the motion, to provide needed context.
Chronology of events
In late 2017, Ms. Innes began looking for a lawyer to represent her in the context of her discussions with Mr. Vered. She contacted the offices of five lawyers in Ottawa. Two of them could not act, due to a conflict of interest. This was not surprising, since Mr. Vered owns construction and engineering companies active in the Canadian market. After speaking with the three lawyers who indicated they could accept her retainer, Ms. Innes retained Pam MacEachern.
In May 2018, Ms. MacEachern was appointed to the bench. Ms. Innes then made calls to four other lawyers in Ottawa. None of them were lawyers she had contacted earlier. Two of these four lawyers again told Ms. Innes that they could not act due to a conflict of interest. The two remaining lawyers were Mr. Rankin at McMillan LLP and Gregory Ste Marie at Mann Lawyers LLP.
Ms. Innes first contacted McMillan LLP on June 4, 2018 and spoke with Mr. Rankin’s assistant, Wanda Phanor. After this conversation, Ms. Phanor ran a conflict search on Mr. Vered and his companies. After getting the results, she sent Mr. Rankin the results of the conflict search with the following email:
Michael, Jennifer Innes telephoned me this afternoon. She is looking for a new lawyer as her lawyer, Pam MacEachern, has been appoint (sic) a Superior Court Judge. You were not at your desk, so she called me and suggested that I run a Conflict Search to make sure we haven’t acted for her husband. I am to email her to let her know whether there is a conflict. I haven’t done so yet.
The Conflict Search is attached, and it appears that her husband, Ron Vered, was a client of Andrea Camacho’s respecting a Marriage Contract. … Let me know how to respond to Jennifer Innes.
In his responding email, Mr. Rankin told Ms. Phanor to contact Ms. Innes to tell her that “she needs to speak with me to address the conflict issue. She can call me, and I will explain. It all depends on what the issue is”. Ms. Phanor then sent an email to Ms. Innes passing on the message that there was a “potential conflict depending on what your matter relates to” and that, if she phoned Mr. Rankin directly, he would explain this to her and get more details.
On June 5, 2018, Ms. Innes spoke with Mr. Rankin by phone. They have different accounts of their discussion. I will return to their evidence about the call shortly.
At the end of the call, Ms. Innes and Mr. Rankin agreed that they should meet in person for a further discussion. The date set for this meeting was June 20.
On June 12, 2018, Ms. Innes sent Mr. Rankin an email attaching the parties’ marriage contract and a 2002 reporting letter prepared by Barb Thompson, the lawyer who negotiated the contract on her behalf. In her brief email, Ms. Innes said that she was looking forward to the June 20 meeting and was forwarding the documents for Mr. Rankin’s information. She did not refer to any discussion about these documents during their phone call or any issues that she wished to explore in their upcoming meeting.
Ms. Innes says that, at some point between June 6 and June 20, she wrote an email to Mr. Rankin’s assistant Ms. Phanor saying that she wanted to postpone the June 20 meeting until after an upcoming mediation with Mr. Vered on June 21st. Ms. Innes wrote in this email that she would ‘“touch base” on June 22 to re-schedule the meeting. Unfortunately, she inadvertently sent this email to herself rather than to Ms. Phanor.
On June 20, Ms. Innes failed to show up for the planned meeting with Mr. Rankin.
Mr. Vered and Ms. Innes did not settle their dispute at the June 21 mediation. In her cross-examination on this motion, she said that she retained her current counsel, Mr. Ste Marie, after this mediation failed and before a lawyer-assisted mediation session in July 2018.
Ms. Innes did not follow up with Ms. Phanor on June 22 to schedule another date for a meeting with Mr. Rankin. In her cross-examination, she said that she was surprised not to receive any acknowledgment of the email she had intended to send postponing the June 20 meeting, and so did not see any immediate need to contact his office again.
On September 17, 2018, Mr. Vered contacted Mr. Rankin’s office and left a message. Mr. Rankin acknowledged in cross-examination that he was looking for a lawyer in the context of this proceeding. Mr. Rankin responded with an email. They did not meet or have any further communications at the time.
Mr. Rankin has refused to disclose the contents of either Mr. Vered’s telephone message or the email, or to explain why he did not agree to meet with Mr. Vered or represent him at the time. He takes the position that, because he was subsequently retained by Mr. Vered, these communications are protected by solicitor-client privilege.
On October 1st, 2018, Ms. Innes called Mr. Rankin again and they spoke briefly. Both of them agree that she began by indicating that she wanted to speak to him confidentially. Ms. Innes says that Mr. Rankin said abruptly: “you have a lawyer” and hung up the phone. Mr. Rankin agrees that he told her that he could not be involved in her case and their conversation ended but denies that he hung up on her.
In November 2018, Mr. Vered began this proceeding. In her responding disclosure in early 2019, Ms. Innes provided Mr. Vered with a copy of the opinion that she had received from Ms. Thompson.
In early July 2019, Mr. Vered retained Mr. Rankin to act as co-counsel with Mr. Sheiner. In his affidavit, he explains that he wanted to retain a lawyer with a large national firm that could handle this complex case. Prior to accepting the retainer, Mr. Rankin says that he confirmed, through Mr. Sheiner, that the documents that Ms. Innes had emailed to him on June 12 had been disclosed to Mr. Vered.
What was discussed during the June 5 call?
According to Ms. Innes, her phone call with Mr. Rankin lasted between 25 and 30 minutes. She says that, during the conversation, she disclosed to him that she feared litigation with Mr. Vered as well as Mr. Augustine’s view of the parties’ marriage contract.
According to Mr. Rankin, the discussion was shorter. He denies that Ms. Innes shared any confidential information with him.
Where Ms. Innes’ evidence about the June 5 call conflicts with Mr. Rankin’s evidence, I accept his version of events. There are two reasons for this.
First, Mr. Rankin’s recollection is consistent with notes taken at the time and was not challenged on cross-examination. Mr. Rankin was examined on his affidavit but was not asked any questions about the June 5 call.
Given the lack of cross-examination, I cannot accept the position taken by Ms. Innes’ counsel, at the motion hearing, that I should simply disbelieve certain points in Mr. Rankin’s account. Mr. Ste Marie contended, for example, that Mr. Rankin did not telephone Ms. Camacho before he spoke with Ms. Innes, as he stated in his affidavit, because on his June 5 docket entry recording .5 non-billable for these two calls, he listed the call with Ms. Innes first. If counsel wanted to make this argument, he was required to put the purported discrepancy to Mr. Rankin, in cross-examination. Mr. Rankin might have been able to provide a reasonable explanation. He might have said, for example, that he had a practice of preparing his dockets at the end of the day, without particular regard to the chronology of specific calls. Having failed to confront Mr. Rankin with a potential discrepancy between his affidavit and the docket, and not permitting him to explain it, counsel for Ms. Innes cannot now argue that the witness’s lack of explanation undermines his credibility.
If Mr. Rankin’s affidavit evidence was obviously implausible or far-fetched on its face, Ms. Innes could argue that I should give it no weight even in the absence of any cross-examination about the June 5 call. Mr. Rankin’s evidence is however entirely reasonable. I would add, with respect to the example just given, that I find it hard to believe that Mr. Rankin, an experienced family lawyer well aware of the pitfalls presented by conflicts, would have agreed to a person-to-person meeting with Ms. Innes without first speaking with Ms. Camacho.
Second, Ms. Innes’ evidence in her two affidavits was sometimes either internally inconsistent or at odds with contemporaneous records. When she was challenged during cross-examination, she did not provide plausible explanations for these inconsistencies.
Examples of the problematic nature of Ms. Innes’ evidence include her account of her discussion with Mr. Rankin about conflicts, her explanation of the reference to Phillip Augustine in Mr. Rankin’s notes, and her contention that she told Mr. Rankin that she feared litigation with Mr. Vered.
At paragraph 27 of her first affidavit dated November 1st, 2019, Ms. Innes asserted that, at the beginning of the June 5 call, Mr. Rankin told her that there was a potential conflict based on work that his firm had done, in the past, for one of Mr. Vered’s companies:
Mr. Rankin indicated that there was some past dealing of his firm with a corporation in which [Mr. Vered] was involved. I cannot recall if he said it was with him personally or a member of his firm. He indicated that there was “a way around the conflict” issue.
Ms. Innes’ recollection that Mr. Rankin told him that someone at McMillan LLP had acted for one Mr. Vered’s companies is clearly wrong. When Ms. Phanor ran a conflict search on June 4, 2018, the only potential conflict identified was Mr. Vered’s retainer of Mr. Rankin’s former partner to obtain advice about his marriage contract with Ms. Innes. There is no evidence of any conflict arising from work that Mr. Rankin’s firm did for a corporation in which Mr. Vered was involved. I do not believe that Mr. Rankin would have actively misrepresented the nature of the potential conflict to Ms. Innes. There was no reason for him to do so.
In her second affidavit dated November 20, 2019, sworn after she was served with Mr. Rankin’s affidavit, Ms. Innes attempted to explain her earlier evidence about a potential corporate conflict. She said that she incorrectly assumed that it was a corporate conflict, because Mr. Rankin did not provide her with any details about the nature of the potential conflict. Despite this, she also contends that Mr. Rankin proposed to “write a letter that Mr. Vered would sign to waive the conflict”. There is no reference to this proposal in her first affidavit even though, during her cross-examination, Ms. Innes said that she would have told Mr. Rankin that Mr. Vered would never sign a waiver.
I have already concluded, in the absence of any cross-examination of Mr. Rankin about the June 5 call, that I must give weight to his account. At paragraphs 22 and 23 of his affidavit, Mr. Rankin states that, at the outset of the call:
I made it clear to Ms. Innes that Mr. Vered had previously spoken with Andrea Camacho of my firm and that there was a file opened dating back to 1999 pertaining to the marriage contract. I did not see disqualifying conflict to potentially act for Ms. Innes as Ms. Camacho had left my firm, the file was off site in storage, Mr. Vered was not a current client of the firm where his consent to act against him would be needed and I had no knowledge of the matters in question.
Given the fact that Mr. Vered had continued with Mr. Ages to complete the marriage contract on his behalf, Ms. Innes was not concerned about the potential conflict and our conversation ensued from there. The potential conflict had been canvassed and resolved, as noted above.
Mr. Rankin denies that he told Ms. Innes that there was a way to work around the conflict, both because this is not language that he would use, and because, based on his discussion with Ms. Camacho, there was no disqualifying conflict. His evidence is consistent with the notes he took on June 5, 2018. They refer twice to discussions with Ms. Camacho.
Ms. Innes contends that Mr. Rankin never mentioned the work that Ms. Camacho had done for Mr. Vered and that, had he done so, she would have viewed this as highly problematic and may well have ended the call. She contends that Mr. Rankin’s note “Spoke to Andrea” refers not to a discussion that he had with Ms. Camacho but to an interaction that Ms. Innes had with her, which she mentioned to Mr. Rankin at one point during their call. This is implausible. This note is almost the very first one made by Mr. Rankin with respect to or during the June 5 phone call. He and Ms. Innes agree that the very first thing they discussed was whether he had a conflict. Mr. Rankin’s explanation of the note is moreover supported by a further note he made, elsewhere on the record, that reads: “TT Andrea. She has no info or recall on this file. Re: MC?”. This clearly refers to Mr. Rankin’s call to Ms. Camacho to inquire about whether the work she had done for Mr. Vered constitutes a disqualifying conflict for his retainer.
Finally, just as I have concluded that it is unlikely that Mr. Rankin would have agreed to meet with Ms. Innes without satisfying himself that there was no conflict, I also cannot see any good reason why Mr. Rankin would have concealed Ms. Camacho’s past retainer for Mr. Vered. This would only invite trouble at some later date. Based on Ms. Innes’ telephone conversation with Ms. Phanor on June 4, 2018, she was alive to the issue of potential conflicts of interest. She herself suggested that a conflicts search be run. It would have made little sense, in this context, for Mr. Rankin to refuse to tell Ms. Innes about the nature of the only potential conflict, particularly one that, in his view, had been resolved.
A second problematic area in Ms. Innes’ evidence is her contention that she told Mr. Rankin about legal advice that she had received from Mr. Augustine about her marriage contract.
Mr. Augustine was one of the lawyers that Ms. Innes spoke to before retaining Pam MacEachern. In her first affidavit on November 1st, Ms. Innes did not have a precise recollection of her alleged disclosure about Mr. Augustine’s advice. Commenting on Mr. Rankin’s note “Phil AUGUSTINE – not happy w/it Husband”, she said that “I would most likely have shared with Mr. Rankin in that call, Mr. Augustine’s views about the situation, which were a product of my confidential discussions with Mr. Augustine” [emphasis added].
This statement is speculative. It does not describe what Ms. Innes actually recalls, but what she assumes she said based on Mr. Rankin’s note. Rather than supporting Ms. Innes’ assertion that she shared Mr. Augustine’s confidential advice during the June 5 call, the statement in Ms. Innes’ first affidavit suggests that she does not actually remember why Mr. Augustine’s name came up.
In her second affidavit sworn about three weeks later, Ms. Innes no longer has any doubt about her recollection. She states, without qualification, that she ‘informed Mr. Rankin about my historical discussions with Phil Augustine regarding the marriage contract and Mr. Augustine’s views regarding the enforceability of the contract’. She does not provide a good explanation of why her memory of the details of a conversation that took place over a year earlier spontaneously improved.
Beyond this, Ms. Innes’ explanation of the reference to Mr. Augustine is not persuasive. She had spoken with Mr. Augustine months earlier, before retaining Ms. MacEachern. I do not accept her explanation in cross-examination, to the extent it was articulated, about why she would inform Mr. Rankin about Mr. Augustine’s views on the marriage contract, but not the views of the lawyer with a far greater familiarity with her file.
Mr. Rankin offers a more plausible explanation for the reference to Mr. Augustine in his notes. He recalls that Ms. Innes told him that she did not retain Mr. Augustine because, at the time, she and Mr. Vered were trying to settle their dispute amicably, and Mr. Vered objected to Mr. Augustine’s potential retainer because he thought it would make an amicable settlement less likely. This is why Mr. Rankin noted, next to Mr. Augustine’s name, “not happy w/it Husband”. This recollection is consistent with an email sent by Mr. Vered to the parties’ mediator in June 7, 2018, along these lines.
A third example of weaknesses in Ms. Innes’ evidence relates to her contention that she told Mr. Rankin that she feared going to court with Mr. Vered.
Ms. Innes does not say that she expressed a fear of litigation to Mr. Rankin in either of her two affidavits in support of the motion. She referred to this alleged disclosure for the first time during her cross-examination on December 20, 2019. If in fact she made such a disclosure to Mr. Rankin during their telephone call, I would have expected her to mention this earlier.
There is furthermore nothing in Mr. Rankin’s notes that supports Ms. Innes’ contention that she told him she feared going to court. A fear of litigation is something that a lawyer would in all likelihood record, since it would drive litigation strategy in a fundamental way. Mr. Rankin states in his affidavit that he keeps careful notes of every conversation of any substance with a client or potential client. I find that, had Ms. Innes made this important strategic disclosure to him, Mr. Rankin would have recorded it.
Mr. Rankin’s notes reflect that Ms. Innes told him that she wanted to avoid continuing the litigation with Mr. Vered. During their phone conversation he noted “MEDIATION PROCESS - hoping to settle” and “Don’t want to Litigate”. His notes also mention K. D’Artois, the mediator they had engaged. These notes are consistent with a discussion in which Ms. Innes expressed a preference for settlement, but nothing more.
In summary, Mr. Rankin’s evidence about the June 5 call was unchallenged, plausible, and consistent with contemporaneous evidence. I conclude that Ms. Innes’ evidence about it is not as reliable. I therefore accept his account over hers.
Did Ms. Innes provide any confidential information during the June 5 call?
The scope of confidential information is broader in the context of family litigation than it is in commercial or civil litigation. It includes not ‘“such obvious matters as personal expenses, assets and liabilities, but … extends to the personal habits, faults and foibles of the “client,” knowledge of which might be valuable to the lawyer in the adversarial world of litigation”; Paylove v. Paylove, 2001 CanLII 28169 (ON SC), [2001] OJ No 5009 (QL), 23 RFL (5th) 200, at para. 19; see also Marinangeli v. Marinangeli, 2004 CanLII 4041 (ON SC), at para. 17.
I do not find that any of the information provided by Ms. Innes during this discussion constituted confidential information.
I have already rejected Ms. Innes’ contention that told Mr. Rankin that she feared litigation and disclosed to him Mr. Augustine’s views. She argues, however, that she disclosed other confidential information to him. She relies on Mr. Rankin’s notes during the call that “the contract was not appropriate” and that “Conflict – only in court process”.
Mr. Rankin explained in his affidavit that he made the note about conflict “only in court process” in response to Ms. Innes’ answer to a standard question he asks during exploratory discussions with a potential client, as to whether the parties generally get along. This explanation is plausible and supported by other evidence on the record.
In his affidavit in response to this motion, Mr. Vered produced emails that Ms. Innes sent to him between January 2018 and September 2019 in which she expressed a strong preference for a negotiated settlement of their dispute. She did not trust lawyers’ motivations and wanted to avoid the cost of litigation. The parties repeatedly attempted to resolve their differences through mediation. The emails reflect cordial and constructive interactions. All of this is consistent with Mr. Rankin’s recollection of what Ms. Innes told him during the June 5 call.
With respect to the note about the marriage contract, Ms. Innes’ disagreement with a contract that limits her financial recovery against Mr. Vered is the very reason why these parties are currently in litigation. It does not suggest that Ms. Innes told Mr. Rankin anything that he did not already know, or that Mr. Vered did not already know. In paragraph 35 of his affidavit, Mr. Rankin denies that Ms. Innes told him anything about any of the potential grounds on which the marriage contract could be challenged. I accept this evidence.
Ms. Innes’ counsel asks me to infer that the Thompson opinion must have been discussed during the June 5 call, because her June 12, 2018 email to Mr. Rankin did not explain why she was sending these documents to him. Mr. Rankin acknowledges that Ms. Innes mentioned the contract and that she did not think it should be enforced. The purpose of sending him the documents was therefore self-evident. Ms. Innes did not need to explain, in her June 12 email, why the opinion and the contract were relevant to the anticipated June 20 meeting.
I conclude that, on June 5, 2018, Ms. Innes and Mr. Rankin had a short exploratory discussion, during which she told him that she preferred to avoid litigation, and that she did not think she should be bound by the terms of the marriage contract. The information imparted by Ms. Innes was generic and had no strategic value. None of it rises to the level of confidential information.
Did the June 12, 2018 email contain confidential information and, if so, did its receipt by Mr. Rankin give rise to a solicitor-client relationship?
Mr. Rankin concedes that the letter from Ms. Thompson, which Ms. Innes attached to her email to him on June 12, 2018, contained confidential information protected by solicitor-client privilege. He also admits that he read it in preparation for their scheduled meeting of June 20. Mr. Vered’s counsel nonetheless took the position that no solicitor-client relationship arose as a result, because Mr. Rankin never discussed Ms. Thompson’s opinion with Ms. Innes.
The parties have not provided me with a case that deals squarely with the question of whether a solicitor-client relationship arises in circumstances like this.
In my view, a party cannot impose the legal and ethical obligations that flow from a solicitor-client relationship on a lawyer simply by sending them a confidential document, hoping that they will read it. Whether a solicitor-client relationship arises depends on the context in which the information is sent.
In this case, Mr. Rankin received information via email from a person whom he was prepared to take on as a client, in preparation for a meeting with her. The information was clearly confidential and could potentially be used against Ms. Innes’ interests in the litigation. The receipt of this information in these circumstances imposed certain legal and ethical obligations on him. Based on Mr. Rankin’s refusal to meet with Mr. Vered in September 2018, I think that he recognized this. This is why, prior to accepting a retainer from Mr. Vered in July 2019, Mr. Rankin verified that Ms. Innes had disclosed the Thompson opinion to him.
Mr. Vered argued, alternatively, that no solicitor-client obligations can be imposed on Mr. Rankin because of this later disclosure. Ms. Innes’ later disclosure of the Thompson letter in these proceedings is relevant to the second part of the MacDonald Estate test. It cannot be used, however, to re-write history.
Conclusion on the first part of the test
- I conclude that Mr. Rankin and Ms. Innes had a solicitor-client relationship based on the clearing of conflicts prior to and during the June 5, 2018 call, the agreement to meet, and the receipt and review by Mr. Rankin of the Thompson opinion on or shortly after June 12, 2018.
(2) Did Mr. Rankin receive confidential information from Ms. Innes that could be used to her prejudice on this litigation?
In MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 SCR 1235, at page 1236 (b) , the Court held that “once it is shown by the client 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 unless the solicitor satisfies the court that no information was imparted which could be relevant.” It noted that this will be “a difficult burden to discharge”.
I am satisfied that Mr. Rankin has discharged this burden. Based on my findings with respect to the June 5 discussion, the only confidential information that Ms. Innes provided to him was the Thompson opinion. Mr. Vered was already in possession of Ms. Thompson’s letter before retaining Mr. Rankin. Its prior disclosure to Mr. Rankin gives him no better insight or tactical advantage than any other lawyer would have. It has therefore ceased to be relevant information for the purpose of this motion.
(3) Is there a disqualifying conflict of interest?
In this part of the test, I must consider whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires Mr. Rankin’s removal; MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 SCR 1235, at page 1266 (f), Paylove v. Paylove 2001 CanLII 28169 (ON SC) , at paras. 24 and 25.
Counsel for Ms. Innes argued that Mr. Rankin’s conduct in this case was clearly improper because, for a brief period of time, he was in a solicitor-client relationship with both parties to this litigation. By September 2018, he had received confidential information from Ms. Innes, and seems to have concluded that he could not accept a retainer for Mr. Vered. Despite this, he has claimed solicitor-client privilege over his communications with Mr. Vered during the same period. Mr. Sinclair submits that, whether or not the Thompson letter remained confidential, the court should condemn Mr. Rankin’s obvious conflict of interest by removing him from the file.
I am being asked to conclude that Ms. Innes' decision to send a confidential opinion to Mr. Rankin, without any discussion of it or request for advice, is enough to preclude him from later acting for Mr. Vered, or from asserting privilege over communications with him prior to that retainer. I am not prepared to do this. I would have frankly preferred it if Mr. Vered had waived privilege over the voicemail message he left for Mr. Rankin in September 2018 and Mr. Rankin’s email message to him. This would have clarified the situation. The failure to waive does not however give rise to an inference that Mr. Rankin used the Thompson letter in any way between the time he received and her disclosure of it to Mr. Vered. There is simply no evidence of this or even a working theory about how Ms. Innes could have been prejudiced during this brief period of time.
Ms. Innes’ counsel argued that Mr. Rankin’s abrupt termination of Ms. Innes’ October 1st, 2018 telephone call shows that he recognized he had a conflict of interest. I accept Mr. Rankin’s explanation that, since Ms. Innes had by then retained Mr. Ste Marie, he considered her request to speak to him confidentially was inappropriate. Once again, his notes from the call support his evidence. Her failure to attend the scheduled June 20 meeting may have also factored into his reaction.
I conclude that, in the circumstances of this case, a fair-minded, reasonably well-informed person would not be shocked by Mr. Vered’s retainer of Mr. Rankin in July 2019, after the Thompson letter had been disclosed to Mr. Vered.
Given my conclusion on this point, I do not need to balance the need to respect Mr. Vered’s choice of counsel with other competing considerations.
Disposition
The motion to remove counsel is dismissed.
If the parties are unable to agree on costs, counsel for Mr. Vered may serve and file cost submissions by no later than February 24, 2020. Counsel for Ms. Innes may file cost submissions within two weeks of receipt of Mr. Vered’s submissions. Each cost submission shall be no longer than three pages in length but may attach a draft bill of costs and supporting documents.
Justice Sally Gomery
Released: February 10, 2020