MOTION HEARD: 20201216
ENDORSEMENT RELEASED: 20210416
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JORDAN SACKS, LISA SACKS, MICHAEL SACKS and ANNETTE SACKS
Plaintiffs
and
DUNCAN EMBURY, DANIELA PACHECO, NEINSTEIN LLP, GAVIN MACKENZIE and MACKENZIE BARRISTERS PROFESSIONAL CORPORATION
Defendants
BEFORE: Master D. E. Short
COUNSEL: Leigh Harrison LHarrison@frhlaw.ca for the Plaintiff
Marc Kestenberg & Hunter Norwick Marc@kslaw.com Agents for AGB, Lawyers for the Defendant, Duncan Embury, Daniela Pacheco, and Neinstein LLP for the Respondents HNorwick @kslaw.com
HEARD: December 16, 2020
DECISION: April 16, 2021
REasons for Decision
I. Overview
1Without differences of opinion, litigation counsel would have little to do. This motion addresses the appropriate impact on a firm’s entitlement to act for a client, when one of the firm’s members discussed, in general terms, a possible involvement, as an expert witness, for the plaintiff, in a case arising from the plaintiffs’ loss at a previous civil trial.
2That case, arose from the manner in which the patient received medical care. Now on this motion by the Plaintiffs, they seek to disqualify the law firm, Adair Goldblatt Bieber LLP (“AGB”) from continuing to act as counsel for the Defendants, Duncan Embury, Daniela Pacheco, and Neinstein LLP (the “Responding Defendants”) in the present action, wherein the plaintiffs seek damages from those previous counsel, as a result of manner in which they were represented, in the original action, that arose from the medical treatment of one of the plaintiffs .
II. Initial Discussions
3Mr. Adair is a partner at AGB. Mr. Adair’s partner, Simon Bieber, is the lawyer with carriage of this action for the Responding Defendants.
4The Plaintiffs’ counsel, Falconeri Rumble Harrison LLP (“FRH”), has retained Mr. Adair in the past, on occasion, to provide expert opinions on standard of care issues in legal malpractice actions wherein FRH has acted for other plaintiffs.
5On April 4, 2019, Mr. Adair attended at the offices of FRH. The purpose of the meeting was to discuss an expert opinion that Mr. Adair had been retained to provide in a legal malpractice action.
6The evidence before me was that, at that point in time, prior to this action being commenced, the Plaintiffs’ counsel, in this matter, had a brief discussion with Mr. Adair. At that time, they discussed the possibility of Mr. Adair providing an expert opinion, in this action, on the standard of care and approach of trial counsel in the earlier action.
7After this portion of the Meeting was completed, Mr. Adair, Mr. Falconeri and Mr. Rumble discussed Mr. Adair’s new partnership, AGB. Specifically, they asked whether Mr. Bieber’s practice of acting on behalf of LawPro would interfere with Mr. Adair’s ability to render standard of care opinions for FRH in legal malpractice actions. Mr. Adair advised that it would not.
8Mr. Adair explained that he was not bound by any arrangement that Mr. Bieber or others in the firm had with regard to acting against the interests of LawPro. Mr. Adair said that LawPro was aware that Mr. Adair regularly prosecuted (and defended) cases for and against lawyers for professional negligence and gave expert standard of care opinions on both sides of such disputes.
9Mr. Falconeri then began telling Mr. Adair about a case in his office involving a potential legal malpractice claim against a lawyer arising out of the prosecution of a medical malpractice action. That action had gone to trial against both the doctors and the hospital. Apparently, the plaintiffs’ action been dismissed, with costs.
10Mr. Adair’s evidence, on this motion, was that he was informed, in very general terms, that:
(a) the underlying litigation was against some unidentified physicians and a hospital;
(b) the hospital had made a substantial offer to settle in a very substantial amount, which was not accepted by the plaintiffs; and
(c) the case had gone to trial without an expert opinion being obtained [sic] on “causation” against the hospital (the “Discussion”).
11Mr. Adair’s evidence was that he cannot recall whether Mr. Falconeri or Mr. Rumble mentioned the name or names of the potential plaintiffs during the Discussion. However, there is no dispute that they were discussing the general facts of this action.
12Mr. Adair formed the impression during the Discussion that the client had turned down the offer, based on the lawyer’s recommendation. Mr. Adair also made comments regarding his surprise that a lawyer could have expected to win a medical malpractice action without an expert report on causation.
13No specific information was given to Mr. Adair concerning any communications between the lawyer and the client, or anyone else, regarding any advice the lawyer may have provided on the offer to settle or any other matter.
14Mr. Falconeri then asked Mr. Adair if he would be willing to provide an expert opinion regarding the issue of whether the lawyer fell below the standard of care, if asked. However, Mr. Adair does not recall discussing any specifics regarding the subject of his prospective opinion or the nature of the standard of care (i.e. whether it was on causation or the approach to the offer to settle).
15Mr Adair’s evidence is that there was no meaningful discussion of the trial tactics of the lawyer or the proposed tactics to be relied upon in the prospective case against him.
16I accept that the Discussion was general in nature and limited to whether Mr. Adair would be willing to provide another expert opinion.
17It appears to me that Mr. Adair, Mr. Falconeri and Mr. Rumble each left the Discussion with the impression that Mr. Adair would be open to providing an opinion in the future, if asked, when sufficient information was available.
III. After the Discussion
18After the Discussion, Mr. Adair’s evidence is that he gave no thought to the Discussion for the next several months.
19Mr. Adair’s evidence is that he did not, at any time, make any notes, memo or record of the Discussion. He did not run a conflict check or open any file. The discussion was very general and was limited to discussing the possibility of a future retainer. So, Mr. Adair treated it as such.
20I accept that Mr. Adair did not consider or turn his mind to the Discussion until Mr. Bieber advised him that Mr. Falconeri had objected to AGB continuing to act on behalf of the Responding Defendants on July 30, 2019.
21In responding to Mr. Falconeri, Mr. Adair told Mr. Bieber and an associate at AGB, Jordan Katz, nothing more about the Discussion than is indicated in Mr. Katz’s letter and Mr. Adair’s Affidavit on this motion.
IV. Issue on this Motion
22The sole issue on this motion is whether, by virtue of the sole meeting outlined above, AGB is in possession of any confidential information attributable to the solicitor-client relationship between the Plaintiffs and FRH such that AGB must be removed as the Responding Defendants’ solicitors of record.
23I turn to that determination on the understanding that there is no indication that Mr, Adair has been involved in any way (other than this motion) with the defence of the Plaintiffs’ Claim in the current action.
The Principles and Test Regarding the Disqualification of Counsel
24On a motion to remove a lawyer of record, the Court must consider:
(i) the maintenance of high standards of the legal profession and the integrity of our system of justice;
(ii) the right of a litigant to its choice of counsel, which he or she should not be deprived of without good cause; and
(iii) the desirability of permitting reasonable mobility in the legal profession.
25Only the first two considerations are relevant on this motion.
26In my view, disqualifying a lawyer from representing a party is an extreme remedy. Courts must exercise the "highest level of restraint" before granting such a remedy. [ see Lautec Properties Inc. v. Barzel Windsor (1984) Inc., [2002] O.J. No. 4068 at para 16.]
27A litigant's right to choose counsel should not be interfered with, except in very clear cases. [ see Essa (Township) v. Guergis, 1993 8756 (ON SCDC), [1993] O.J. No. 2581at para 43.] I am not satisfied that this is such a case.
28The Supreme Court of Canada has held in MacDonald Estate v. Martin, (1990 32 (SCC), [1990] 3 SCR 1235 at para 47). that the appropriate general test is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires the removal of the lawyer.
29More specifically, on a motion for the removal of counsel on the basis of an allegation that a lawyer received confidential solicitor-client information from an expert witness. The Ontario Court of Appeal noted in Miele (Litigation Guardian of) v. Humber River Regional Hospital, [2009 ONCA 350 at para 26] that the Court must ask the following questions:
[a] Has the moving party shown that the expert witness received confidential information attributable to the solicitor-client relationship between the moving party and their counsel that is relevant to the action?
[b] Has counsel for the responding party received the confidential information?
[c] Is there a risk that the confidential information will be used to the prejudice of the moving party?
[d] Is the removal from the record the appropriate remedy?
30Here the responding counsel acknowledge that Mr. Adair is not only an expert, but he is also a partner of AGB. Accordingly, the Responding Defendants concede that, if the Plaintiffs demonstrate that Mr. Adair received confidential information (the first question above), AGB will be taken to have received that information as well (the second question above).
31However, that does not resolve the central issue on this motion. The responding parties AGB submit that this motion can be decided and dismissed on the basis of the first question alone. It is submitted that Mr. Adair “did not receive any confidential information attributable to the solicitor-client relationship between the Plaintiffs and FRH during the Discussion, or at all.”
De Minimus non Curat Lex
32AGB further submits that:
“In the unlikely event that this Court finds any confidential information was imparted to Mr. Adair, that information was of such insignificance that it could not be used to prejudice the Plaintiffs. Accordingly, the disqualification of AGB is not be an appropriate remedy in any event.
33As well, to the extent this may be a “close call”, I need to consider who has the onus of proof in this particular fact situation.
34A significant portion of the Plaintiffs’ Factum addresses the reverse onus that applies to the inquiry of whether counsel has received confidential information after consulting with an expert. However, I accept AGB’s position that the inference that counsel has received confidential information is not applicable until after the moving party has demonstrated that the expert themselves has received confidential information attributable to a solicitor and client relationship.
35In Charlebois v. SSQ, Life Insurance Co., Justice Ellies of the Divisional Court rejected the appellants’ argument that the motion judge erred by requiring the moving party to demonstrate that the expert had received confidential information. The significance of this distinction was described, as follows:
There is a substantial difference in who bears the onus of proving that confidential or privileged information has been imparted to an expert as opposed to proving that such information has been imparted by an expert. [emphasis in original]
[see Charlebois v. SSQ, Life Insurance Co., 2015 ONSC 2568at para 32-39, see particularly paras 32 and 35, citing Miele (Litigation Guardian of) v. Humber River Regional Hospital, 2009 ONCA 350at para 26 and 34.
36Justice Ellies went on to note that the Court of Appeal for Ontario’s decision in Miele, placed the onus on the moving party to demonstrate that an expert had received confidential information.
37Accordingly, based upon this jurisprudence, the Plaintiffs bear the onus of demonstrating that Mr. Adair received confidential information attributable to a solicitor-client relationship. I am not satisfied, based on the evidence before me, that the Plaintiffs have not met this burden.
Mr.Adair Did Not Receive Confidential Information Attributable to a Solicitor-Client Relationship
38The respondents assert that Mr. Adair did not receive confidential information attributable to FRH’s relationship with the Plaintiffs. The information received by Mr. Adair was not confidential and held negligible significance, if any.
39I am persuaded that the Discussion was short and general in nature. It was limited to allowing Mr. Adair to consider whether he would be prepared to provide an opinion to FRH with respect to the manner in which the Plaintiffs’ case was handled. More specifically I note:
a. the Discussion took place at the end of the Meeting that was not scheduled for the purpose of discussing this action;
b. the facts of this action were only described in “very general terms”;
c.no specific information has been identified as having been given to Mr. Adair concerning any communications between Mr. Embury and his client(s), or anyone else, regarding any advice Mr. Embury may have provided on the offer to settle or any other matter;
d. the specific subject matter of a prospective opinion from Mr. Adair was not discussed;
e. there was no meaningful discussion of the trial tactics of Mr. Embury or those to be relied upon in this action; and
f. Mr. Adair did not make any records of the Discussion, run a conflict check or open a file at his office.
40In my view, this is not the type of information that Courts consider to be “confidential and attributable to a solicitor client relationship” to a degree sufficient to justify the disqualification of counsel.
41For example, in Fishman v. Fishman, the applicant met with a lawyer at the respondent’s counsel’s firm for the purpose of a potential retainer. The applicant claimed to have had several conversations with members of the firm during which he imparted detailed confidential information regarding the “major issues” in the dispute between the parties, including: (i) offers that had been exchanged; (ii) his position on the offers; and (iii) his proposed strategy and tactics to be used with the respondent, including preference of arbiter. Without providing specifics, the respondent indicated that he feared the information provided to the respondent’s counsel would be used against him.
42The Court in Fishman held that a conversation to allow a firm to evaluate whether it wished to accept a retainer was sufficient to establish a solicitor-client relationship. However, the Court also held that the conversation was not sufficient to disqualify counsel.
43More specifically, the Court found that no confidential information was imparted to respondent’s counsel that could be used to her advantage, because:
a) the conversations were of the nature to permit the firm to determine if it wished to accept the retainer and to quote the appropriate fee;
b) the information imparted by the applicant to the firm would have been readily exchanged between the parties in the course of the litigation;
c) information exchanged during the conversation regarding the substance of the dispute “would have been generic, in nature, and not the topic of confidential information”; and
d) a discussion concerning a choice of arbiter and how to deal with allegations of delay tactics would not generate the type of discussion which, if made known to the respondent, would be prejudicial to the applicant. [see paras 14 &15]
44Accordingly, the Court in Fishman dismissed the applicant’s motion to disqualify counsel.
45In Mannarino's Creative Foods Inc. v. Pezzaniti, 2015 ONSC 1190 (at paras 3-4, 20 and 26), the principal of the plaintiff met with a lawyer for the purposes of a prospective retainer. The principal disclosed "the personal and confidential financial circumstances" of the plaintiff and "the complete details" of a "potential litigation claim on behalf of the plaintiff". The lawyer declined to act for the plaintiff and was subsequently retained to act on behalf of the defendant. The plaintiff brought a motion to disqualify the lawyer on the basis that he had received confidential information relevant to a contemplated security for costs motion.
46The Court in Mannarino’s held that, although the information provided to the lawyer was “confidential”, it was not attributable to a solicitor client relationship. In doing so, the Court cited the lack of information in the plaintiff’s affidavit. Moreover, the Court (citing Tauber v. Tauber, 2009 72088 (ON SC), [2009] O.J. No. 5568) noted that the case was aligned with the “shopping for representation” category of cases, (which do not result in the disqualification of counsel). The Court also held that the relevance of the information was “tenuous at best” and that there was no evidence regarding a risk that the information would prejudice the plaintiff. Accordingly, the motion to disqualify counsel was dismissed.
V. Contrasting Circumstances
47The Plaintiffs rely heavily on the cases of Miele (Litigation Guardian of) v. Humber River Regional Hospital, 2009 ONCA 350.) (“Miele”), and the Supreme Court of Canada’s decision in Celanese Canada Inc. v. Murray Demolition Corp. 2006 SCC 36 (“Celanese”). However, I agree with the Respondents’ submission that the facts of both Miele and Celanese are distinguishable.
48It was clear, in both cases, that relevant confidential information attributable to a solicitor client relationship was communicated to the opposing side. The same cannot be said of the present circumstances. Miele and Celanese have previously been distinguished on this basis. (See Locomotion Tavern v. Toronto Police Services Board, 2009 CarswellOnt 8780 at paras 18-21, affirmed Locomotion Tavern v. Toronto Police Services Board, 2010 ONSC 1184.
49In Miele, the Court considered two actions against a hospital for injury caused during birth. Anne Holden was a member of the management team put together by the hospital to respond to the plaintiffs' claims. In that role, Ms. Holden met with the hospital's counsel four times to discuss the claims and to discuss litigation strategies. Ms. Holden was the representative of the hospital on an examination for discovery in one of the actions. Immediately before her examination, Ms. Holden met with counsel for the hospital to discuss the issues in the litigation and the strategy for her examination. Ms. Holden was also present at a meeting to prepare nurses for their own examinations.
50While the litigation was ongoing, Ms. Holden left her employment at the hospital. Following her departure, the plaintiffs’ counsel contacted Ms. Holden directly. Shortly thereafter, Ms. Holden provided her written opinion on the standard of nursing care to the plaintiffs’ counsel in the same action.
51After providing her opinion, Ms. Holden assisted the hospital's counsel in providing answers to undertakings given at examinations with further discussions of litigation strategy. Ms. Holden did not tell the hospital’s counsel that she had provided the plaintiffs with an expert opinion.
52For good reason, in Miele, the plaintiffs did not contest that Ms. Holden received confidential information attributable to the solicitor-client relationship. The plaintiffs did not even suggest that the confidential information was of negligible significance.
53Accordingly, the Court in Miele focused its analysis almost exclusively on whether it should infer that counsel for the responding party had received confidential information from the expert.
54As noted above, this inference is not applicable here. In fact, it is conceded that if Mr. Adair received confidential information, which they assert he did not, then AGB received that confidential information as well.
55The respondents assert that Mr. Adair did not receive confidential information attributable to FRH’s relationship with the Plaintiffs. The information received by Mr. Adair was not confidential and held negligible significance, if any.
56In my view, this is not the type of information that Courts consider to be “confidential and attributable to a solicitor client relationship” to a degree sufficient to justify the disqualification of counsel.
57I find that Celanese is similarly distinguishable. In that case, the plaintiff's lawyer obtained electronic documents pursuant to an Anton Piller order. Certain of the documents were clearly protected by solicitor-client privilege. By the time the defendant's counsel became aware of this, numerous lawyers at the plaintiff's counsel’s office had reviewed the documents. The responding party admitted that its counsel had received the privileged documents.
58Accordingly, the Court in Celanese held that the moving party had easily satisfied its onus of demonstrating that confidential information had been transmitted. Therefore, the Court’s analysis in Celanese was focused on the issue of whether the moving party would suffer prejudice as a result of the confidential information the responding party’s counsel had admitted receiving. [see Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 at para 45.]
There is No Evidence That Adair Received Confidential Information
59In contrast, the Responding Defendants deny that Mr. Adair received any confidential information from Plaintiffs’ counsel.
60The Plaintiffs have filed nearly identical affidavits from Mr. Falconeri and Mr. Rumble. The Affidavits state that Mr. Falconeri and Mr. Rumble discussed the following with Mr. Adair at the Meeting:
(a) “the general facts of the case”
(b) “the offer to settle that was made in advance of the trial by the Hospital”;
(c) “what advice had been given by the plaintiffs’ counsel with respect to the offer to settle”;
(d) “the decision to have the trial decided by a jury instead of a judge alone”; and
(e) the nature of the standard of care that would be expected of a person in the plaintiffs’ counsel’s position.
61As set out below, none of these matters constitute the type of confidential information that would cause a fair-minded reasonably informed member of the public to conclude that the proper administration of justice requires the removal of AGB.
62In my view, the subject information is generic in nature. Such discussions do not constitute confidential information attributable to the solicitor-client relationship.
63Details regarding these matters are disclosed in paragraphs 31-35 and 38-39 of the Statement of Claim. For example, it is specifically pleaded that:
a. “One week before the trial commenced, the Hospital Defendants made an oral offer of $2,000,000.00, plus costs to be agreed.”
b. “The Defendants … attended at the home of Jordan and Lisa Sacks who, along with Michael Sacks, discussed the offer.”
c. “The conversation was very brief and the Defendant in this action as the plaintiffs’ counsel in the hospital action recommended an outright rejection of the offer to settle”;
d. “At the time he did not explain to the Plaintiffs the risks created to their case as a result of the new causation theory of the Doctor Defendants. No written instructions were obtained from the Defendants.”;
e. “No instructions were obtained from the Plaintiffs, nor was there any recommendation to make a counter offer”;
f. The Plaintiffs state that the trial counsel for Defendants, “failed to properly communicate to the Plaintiffs the risks to their case that were created by the Doctor Defendants’ causation theory that had developed over the six weeks prior to the offer being made”;7and
g. “The Plaintiffs state that had the risks been properly explained to them, they would have given instructions to make a counter offer, seek an additional pre-trial to determine if additional settlement funds were forthcoming, explore a Mary Carter or Perringer [sic] type agreement, and failing that, provide instructions to the Defendants … to accept the Hospital Defendants [sic] offer of $2,000,000.00 plus costs.”
64Mr. Adair’s evidence is that the Statement of Claim goes into far more detail than the Discussion. I accept and adopt the moving party’s submissions in their factum filed before me that:
“66. Of fundamental importance for this motion, Mr. Falconeri and Mr. Rumble do not testify that anything was discussed with Mr. Adair that goes beyond what is contained in the Statement of Claim, even if that information originally came from their clients. Therefore, there is no evidence that the information provided to Mr. Adair was, in fact, confidential…..
Moreover, the Discussion did not include the type of detailed information that would have been required for Mr. Adair to have provided a standard of care opinion. This is confirmed by the Affidavits of Mr. Falconeri and Mr. Rumble, which both state, identically, that they “left the meeting with the understanding that Mr. Adair would be open to continuing to work with us to provide a standard of care opinion once sufficient information was available.”///
While it is acknowledged that the Plaintiffs may not be required to provide evidence regarding the nature of the confidential information they claim to have disclosed, they are still required to establish that Mr. Adair received confidential information attributable to a solicitor and client relationship that is relevant to this action….
The Affidavits filed by the Plaintiffs are not supported by the type of contemporaneous documents that would be expected from a discussion of significance to their case. They do not attach any notes, correspondence or other records of the Discussion, even if redacted. They do not suggest that these documents exist. An adverse inference should be drawn that no such records exist or, if such records do exist, they do not assist the Plaintiffs on this motion….
Finally, Mr. Adair’s Affidavit responds to and contests aspects of Mr. Falconeri and Mr. Rumble’s Affidavits. However, the Plaintiffs chose not to cross-examine Mr. Adair. Mr. Adair’s evidence is uncontested.”
VI. Conclusion
65Inasmuch as Mr. Adair does not recall discussing anything with Mr. Falconeri and Mr. Rumble about this action beyond what is contained in his Affidavit and the Statement of Claim. Given his evidence of the Discussion, there can be no risk that confidential information may be used to the prejudice of the Plaintiffs. Facts that are exchanged between the parties over the course of the litigation, such as in the pleadings, are not the type of confidential information that would prejudice the moving party.
66Accordingly, it is my determination following a careful review of the very professional and helpful materials filed on both sides, this is not an appropriate case for the extreme remedy of disqualifying counsel.
VII. Result
67In the result, the motion brought to prevent the firm Adair Goldblatt Bieber LLP (“AGB”) from continuing to act as counsel for the Defendants, Duncan Embury, Daniela Pacheco, and Neinstein LLP (the “Responding Defendants”) in the present action, is dismissed with costs.
68However, in the circumstances, I see no reason why the Plaintiffs and thus moving parties in the present action, should bear the costs of a dispute which was not of their making.
69I am therefore directing that the firm that is now the plaintiffs’ counsel, Falconeri Rumble Harrison LLP (“FRH”), shall be responsible for any costs on a partial indemnity basis. Given the somewhat unique previous and perhaps continuing relationships between the participants in this motion; I am leaving the quantum for them to establish (and if necessary, for a determination by an assessment officer),
70I thank both sides for their submissions and written materials.
DS 380
DATE: April 16, 2021 ______________________
Master D.E Short