Court File and Parties

COURT FILE NO.: 21-00000008-0000 (Goderich) DATE: 2021-10-29

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Carla Louise DeCorte Applicant

– and –

Michael David DeCorte Respondent

COUNSEL: Ken Fraser, for the Applicant Erin L. Reid, for the Respondent

HEARD: September 22, 2021

Ruling on Conflict of Interest

Pomerance J.:

[1] Can a family lawyer act against a former client? That is the issue at the heart of this motion. The lawyer for Ms. DeCorte acted for Mr. DeCorte in 2006. At the time, Mr. DeCorte was separating from his first wife. The issues in 2006 included a determination of income for purposes of calculating support. Now, 15 years later, the lawyer who acted for Mr. DeCorte is acting for his second wife. Issues in the current litigation include determination of income for purposes of calculating support. Can the lawyer act for the second wife, or is there a disqualifying conflict of interest?

[2] Ms. DeCorte resists the allegation of conflict. She says that the lawyer’s representation of Mr. DeCorte some 15 years ago, on an unrelated matter involving a different party, is sufficiently remote from this litigation such that there is no impediment to the lawyer representing her in this proceeding. Mr. DeCorte takes a different view, objecting to the lawyer’s representation of Ms. DeCorte. He says that he shared confidential information with the lawyer all those years ago, and he is concerned about the prospect of seeing that lawyer on the other side of the courtroom.

[3] While he is now taking a vigorous stance, Mr. DeCorte did not immediately seek removal of the lawyer. His former counsel took the position that there was no conflict of interest. He has now retained a new lawyer who took immediate steps to bring this issue to court. Ms. DeCorte argues that the delay in advancing this argument is an additional reason to dismiss the allegation of conflict. Mr. DeCorte argues that he acted with dispatch after changing his own representation.

The Lawyer’s Affidavit

[4] The file from 2006 was destroyed due to the passage of time. Some correspondence remains, but the lawyer does not clearly recollect the details of his representation of Mr. DeCorte. In his affidavit, the lawyer stated the following:

I have none of my file notes from acting for the Respondent. The only recollection I have of the file is that it involved a request for support variation. Beyond that, I have no information at all. I no longer have the various items of correspondence which the Respondent has attached to his Affidavit as Exhibits “A” and “B”.

The Respondent refers to my having acted for him “as it pertains to various family law matters including those related to my income and support issues” (paragraph 4). However, I know from review of my historic file list maintained since the start of my legal practice in 1980, that I have never acted for the Respondent except on this one occasion. I would point out that the fact that I obtained a $1,000.00 retainer from the Respondent, when my ordinary retainer at that time was $3,000.00, is indicative to me that my retainer was to be limited in scope and time. It is apparent from the Respondent’s material that this matter did involve quite a narrow issue with his former spouse and quantum of child support relating to their existing Separation Agreement.

I did not act for the respondent in connection with the original Separation Agreement, apparently some years earlier. I have never represented him, nor any of the corporations that he controls or has a principal interest in, at any other time.

I have also never represented him in connection with the marriage in question in this proceeding, involving the Applicant as my client. This proceeding involves these parties who were married on October 11, 2008; and the separation in November of 2020, leading to these proceedings in early 2021.

I simply do not have any confidential information that has any relevance to the matters at hand in the existing litigation, arising from the issues in respect of which I represented the Respondent, on a limited basis and for a limited time, roughly 15 years ago. There is certainly no resort I can have at this stage to any such relevant confidential information, since my entire file, beyond the 3 items set forth at Exhibit “A” hereto, was destroyed in 2013.

I did not take lightly the fact that I was being asked to act against someone who had been a former client, although it was about 15 years prior and involving a prior marriage of that former client. Accordingly, I undertook a further investigation through our old file records, finding only those that are attached at Exhibit “A” to this Affidavit. This included discovering that the old file had been destroyed in December 2013, and the only memory I had of it was as indicated above – a support variation.

Mr. DeCorte’s Affidavit

[5] Mr. DeCorte has a memory of various discussions with the lawyer in which he shared confidential information about financial, business, and personal affairs. According to Mr. DeCorte’s affidavit,

Glen Carey was my family law lawyer. He acted for me as is pertains to my separation from my former spouse, Teresa Campbell.

Glen Carey acted as my family law lawyer from July 2006 through February 2007. Mary Cull acted for my former spouse, Teresa Campbell.

Mr. Carey acted for me as it pertains to various family law matters including those related to my income and support issues. The existing family law litigation, in which Glen Carey is opposing counsel, directly involves my income and support issues.

Over the course of his acting as my family law lawyer, I had telephone discussions with Glen Carey during which my confidential information was discussed, including issues related to my income, business, financial and personal affairs.

It was my understanding and belief that, as my family law lawyer, I could discuss personal and confidential issues with Mr. Carey, which I did. I did not believe or know, when having these discussions, that he could or would end up working for my spouse against me in the future.

Analysis

General Principles

[6] These are complex issues. There is no hard and fast rule that a lawyer can never act in opposition to a former client. That said, the integrity of the system will sometimes require that a lawyer refrain from taking on a file that pits him or her against someone he or she acted for in the past.

[7] There is a clear tension in cases of this nature. On the one hand, the law recognizes the importance of litigants’ right to counsel of choice. On the other hand, that right is not absolute and is subject to reasonable limitations. A litigant cannot choose counsel that has a conflict of interest in circumstances that would detrimentally affect the administration of justice: see R. v. Hendrickson, [2002] O.J. No. 1982 (S.C.); *R. v. Speid* (1983), 1983 CanLII 1704 (ON CA), 43 O.R. (2d) 596 (C.A.); *R. v. Robillard* (1986), 1986 CanLII 4687 (ON CA), 28 C.C.C. (3d) 22 (Ont. C.A.); *R. v. Brissett* (2005), 2005 CanLII 2716 (ON SC), 74 O.R. (3d) 248 (S.C.).

[8] In assessing whether there exists a disqualifying conflict of interest, the court must balance competing interests. On the one hand, the court must be concerned to maintain the high standard of the legal profession and the integrity of our system of justice. On the other hand, the court must recognize the strong countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause.

[9] In *R. v. W.(W.)* (1995), 1995 CanLII 3505 (ON CA), 25 O.R. (3d) 161 (C.A.), Doherty J.A. set out the test that a trial judge must apply in assessing an alleged conflict of interest, at pp. 18-19:

It is important to distinguish between the respective functions of a trial judge and an appellate court when faced with a conflict of interests claim. Where the issue is raised at trial, the court must be concerned with actual conflicts of interests and potential conflicts that may develop as the trial unfolds. In deciding whether counsel should be permitted to act for co-accused, trial judges must, to some degree, speculate as to the issues which may arise and the course the trial will take. The trial judges' task is particularly difficult since they cannot be privy to the confidential discussions which may have passed between the clients and counsel and which may reveal the source of potential conflicts. Given those circumstances, trial judges must proceed with caution and when there is any realistic risk of a conflict of interests they must direct that counsel not act for one or perhaps either accused.

[10] The test set out in W.(W.) is whether there is any realistic risk of a conflict of interest. This test is similar to the one set out by the Supreme Court of Canada in *MacDonald Estate v. Martin*, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235 (“MacDonald”) in which the Court held that a “possibility of real mischief” will warrant the removal of counsel. The term “mischief” in that case, at p. 1246, referred to “the misuse of confidential information by a lawyer against a former client.” Where it is shown that a lawyer was previously retained on a related matter, the onus will shift to the lawyer to prove that no information was imparted that could be relevant. On this point, Sopinka J. stated the following, at pp. 1260-1261:

In my opinion, 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. This will be a difficult burden to discharge. Not only must the court’s degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed but the burden must be discharged without revealing the specifics of the privileged communication. Nonetheless, I am of the opinion that the door should not be shut completely on a solicitor who wishes to discharge this heavy burden.

[11] The “heavy burden” resting upon counsel requires that a “reasonably informed member of the public” be satisfied that the new retainer will not give rise to a conflict of interest.

Application to this Case

Are the Cases Connected?

[12] Ms. DeCorte argues that there is no connection between the earlier matrimonial dispute and the dispute currently before the court. On behalf of Ms. DeCorte, counsel said that the earlier representation was 15 years ago, involved a different spouse, and is entirely unrelated to this litigation.

[13] I cannot agree. Taking a functional approach to this issue, I find that the cases are connected.

[14] The earlier case, like the present one, involved a matrimonial dispute. The earlier case, like the present one, raises issues of income for purposes of calculating support. The earlier case, like the present one, calls into play the financial and business affairs of Mr. DeCorte. While the present dispute involves a different spouse, the litigation raises similar issues. The business affairs from 15 years ago may or may not become relevant. To my mind, there is a sufficient nexus that the cases are connected by common issues, even though they do not involve common parties.

[15] I will now turn to the question of whether confidential information was passed to the lawyer during the earlier retainer.

WAS CONFIDENTIAL INFORMATION PASSED?

[16] I will first address the issue of onus, as it was stressed by counsel for Ms. DeCorte.

[17] Mr. Fraser, on behalf of Ms. DeCorte, argued that the onus is on Mr. DeCorte to prove that he passed confidential information to the lawyer when represented by him in 2006. Mr. Fraser asserted that Mr. DeCorte did not provide enough detail to make out this burden in that he failed to identify any specifics of the information provided.

[18] With respect, I cannot agree with that characterization. First, Mr. DeCorte in his affidavit clearly stipulated that he shared confidential information about his financial, business, and personal affairs with the lawyer during more than one telephone conversation. This assertion is not contradicted. The lawyer’s file was destroyed due to the passage of time, and the lawyer does not recall receiving confidential information. However, given the absence of the file, and the lack of memory, the lawyer is not in a position to rebut Mr. DeCorte’s assertion.

[19] Second, and perhaps more importantly, the onus does not fall upon Mr. DeCorte. To the contrary, as held in MacDonald, once a connection is made between the two cases, it falls to the lawyer to meet the heavy burden of establishing that no confidential information was imparted. The “heavy burden” resting upon counsel requires that a “reasonably informed member of the public” be satisfied that the new retainer will not give rise to a conflict of interest: see MacDonad, at p. 1260. The issue is not whether Mr. DeCorte has provided enough detail. The issue is whether the lawyer has been able to rebut the assertion that confidential information was shared.

[20] It makes good sense that the onus rests upon the lawyer rather than the former client. Were it otherwise, the client would face the anomaly of having to disclose the very confidential information that he or she seeks to protect. Neither the client nor the lawyer should be disclosing the information that was passed during the earlier retainer. The privilege attaching to such information must be maintained. While a bald assertion of conflict is not enough to remove a lawyer of record, an assertion that the former client discussed confidential matters relating to financial business and personal affairs is enough to trigger a concern and shift the onus to the lawyer.

[21] This conclusion is fortified when one considers the nature of family law litigation. Courts have recognized the special role that family lawyers occupy, and the broad-ranging, intimate, and personal discussions that will often take place within that context. Some of the information, such as income statements, become part of the public record and are not confidential. However, in the ordinary course, family law litigants are embroiled in emotional disputes that may prompt discussion of highly personal matters. Lawyers who represent family law litigants are trusted confidantes.

[22] I note the following judicial observations:

Dalgleish v. Dalgleish, [2001] O.J. No. 2187, at para. 36:

Family law cases and, especially, family law litigation, are different than most other legal areas. Sopinka J. talks of clients baring their souls to counsel. This is even more the case in family litigation. Clients are nervous and often desperately seeking assistance. The issues are sensitive, especially so in custody matters. There exists in the family law case an emotional vulnerability in people that is often not found in other areas of law. The client must have faith that matters of substance discussed with a lawyer will be held in strict confidence.

Marinangeli v. Marinangeli, [2004] O.J. No. 3082, at paras. 17, 18, and 21:

Para. 17: Mrs. Marinangeli disclosed more than financial information to Mr. Grant. In addition to supplying Mr. Grant with financial information, Mrs. Marinangeli would have also revealed her concerns and feelings about her marriage and her former husband, and other deeply personal information about the dissolution of her marriage. The relationship between family lawyers and their clients goes well beyond technical, financial and impersonal information. Clients come to family lawyers when they are at their most vulnerable.

Para. 18: They disclose, whether by direct words or in the very nature of their instructions to counsel, their strengths and weaknesses in the process of settlement discussions, negotiation tactics and litigation strategies. They disclose to their counsel their perception of the strengths and weaknesses of the opposite party in these matters. They disclose their perception of the opposite party’s likely approach to various issues – including which issues are likely to be important to that party and which are not. They disclose to counsel their own preferences in the choices available in the process, including which issues are important and which are not. They disclose whether they prefer to “play hardball” or “softball” in respect to the various issues.

Para. 21: Turning again to MacDonald Estate, Sopinka J. instructs that once it is shown that a previous relationship existed, sufficiently related to the current retainer, the court ought to infer that confidential information was imparted.

*Vered v. Innes*, 2020 ONSC 894, at para. 49, citing *Paylove v. Paylove*, 2001 CanLII 28169 (ON SC), [2001] O.J. No. 5009, at para. 19 (S.C.):

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”.

*K. (M.S.) v. T. (T.L.)*, 2011 ONSC 5478, at para. 26:

I agree with these comments. In family law matters, clients often must share personal details with their lawyers that they might feel uncomfortable about doing, but it is necessary due to the nature of the matters in dispute. It is of the utmost importance, in my view, that in these circumstances, clients have every confidence that what they discuss with their lawyers or their lawyer’s designates will never be divulged to others.

[23] I accept the lawyer’s assertion that, as of today, he does not remember that confidential information was passed. However, I also accept Mr. DeCorte’s assertion that he did provide confidential information to the lawyer. That assertion is not meaningfully contradicted and is therefore accepted, as the lawyer has little recollection of the matter, and the file is no longer in existence. Mr. DeCorte, having passed confidential information to the lawyer, has a legitimate expectation that the lawyer will not act against him in court in a related matter.

[24] There is a potential for actual conflict and a very real appearance of conflict.

[25] As it relates to actual conflict, various scenarios could arise. Hypothetically, the lawyer might happen to remember something that Mr. DeCorte said during the earlier litigation. Were he to act on that information, he would be breaching his duty to Mr. DeCorte. Were he to disabuse his mind of the information, he could potentially be breaching his duty to vigilantly represent Ms. DeCorte. Moreover, to the extent that Mr. DeCorte’s business affairs are in issue, his approach to those issues in the past may become relevant to present calculations. There may be other potential scenarios that would present a conundrum.

[26] So too is the appearance of conflict. Mr. DeCorte has a legitimate sense of unease about seeing his former lawyer on the other side of the courtroom. This engages the duty of loyalty, which is a core feature of legal representation. As I put it in R. v. Billy, [2009] O.J. No. 4737 (S.C.), at paras. 24-30:

The above finding does not end the matter. The lawyer faces a heavy onus to demonstrate that a reasonably informed member of the public would also be satisfied that there is no conflict of interest. That inquiry extends beyond the potential misuse of confidential information. It is concerned with the appearance of conflict and the need to maintain public confidence in the administration of justice. (see MacDonald Estate at para. 41). It is concerned with the duty of loyalty.

The duty of loyalty embraces concepts of privilege and confidentiality, but is also much broader in scope. It recognizes, more generally, that a lawyer who accepts a retainer pledges a certain level of dedication and commitment to the client’s cause; that a lawyer who acts for a client will not act against that client in the same or a related matter.

The duty to refrain from acting “against” a former client has been recognized in various authorities. In *R. v. Neil*, 2002 SCC 70, [2002] S.C.J. No.72 Justice Binnie observed in para. 12 that:

Unless a litigant is assured of the undivided loyalty of the lawyer, neither the public nor the litigant will have confidence that the legal system, which may appear to them to be a hostile and hideously complicated environment, is a reliable and trustworthy means of resolving their disputes and controversies.

In *R. v. Baltovich*, 2005 CanLII 19797 (ON SC), [2005] O.J. No. 2285 (C.A.) Rosenberg J.A. stated at para. 12 that ”the mischief that the conflict of interest and duty of loyalty rules seek to prevent is the spectre of counsel for a client acting against the interests of another client, whether present or former.”

The Honourable Michel Proulx and David Layton stated in their book Ethics and Canadian Criminal Law (Toronto: Irwin Law, 2001), at p. 206:

The above examples of harm to a former client involve the spectre of confidential information being misuse. However, altogether apart from this possibility, counsel owes a broader duty of loyalty to a former client. As most rules of professional conduct suggest, a former client has a legitimate claim to expect counsel’s loyalty to persist with respect to the subject matter of a retainer, even after the client-lawyer relationship has ended and even if there is little or no possibility that confidential information can be misused. In such circumstances, courts are [quite] prepared to find that a reasonable member of the public would hold the integrity of the justice system in considerably less esteem if, despite the protests of the former client, the original lawyer was permitted to launch an all-out attack.

In *R. v. Speid* (1983), 1983 CanLII 1704 (ON CA), 43 O.R. (2d) 596 (C.A.) Dubin J.A. (as he then was) stated at p.600 that “a client has every right to be confident that the solicitor retained will not subsequently take an adversarial position against the client with respect to the same subject matter that he was retained on.”

I take from these authorities that an appearance of divided loyalties will often translate into an appearance of conflict of interest, whether or not the lawyer is likely to use confidential information. Certain retainers will, by their very nature, foreclose other retainers. A lawyer cannot act if to do so would cause a reasonably informed member of the public to question the fairness and integrity of the justice system. [Emphasis in original.]

The Delay

[27] It has taken some time for this issue to come before the court. The lawyer discussed this with Mr. DeCorte’s former counsel, Mr. Reid. Mr. Reid asserted that he did not perceive the lawyer to be in conflict. Many months later, Mr. DeCorte retained his current lawyer Ms. Reid, who quickly brought this motion before the court. The delay is unfortunate but does not prevent Mr. DeCorte from asserting a disqualifying conflict. He did not personally waive the conflict. Moreover, I have found that there is an appearance of conflict – one that would be perceived by a reasonable person, apprised of all the circumstances. It would not be appropriate to condone a disqualifying conflict merely because a former lawyer did not pursue the issue.

Conclusion

[28] For all of these reasons, I conclude that the lawyer presently representing Ms. DeCorte is disqualified from doing so because of a conflict of interest vis-à-vis Mr. DeCorte.

[29] If counsel cannot agree on costs, I will receive written submissions within 20 days of today’s ruling.

Original Signed by “Justice R.M. Pomerance”

Renee M. Pomerance Justice

Released: October 29, 2021

COURT FILE NO.: 21-00000008-0000 (Goderich) DATE: 2021-10-29

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Carla Louise DeCorte Applicant

– and –

Michael David DeCorte Respondent

Ruling on motion

Pomerance J.

Released: October 29, 2021