Court File and Parties

COURT FILE NO.: CV-22-88847 DATE: 15/02/2023 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF GOWLING WLG (CANADA) LLP

BETWEEN:

CAROLYN BROWN, by her litigation guardians CHRISTINA RUDIN-BROWN and JEANNE BROWN Applicants – and – GOWLING WLG (CANADA) LLP Respondent

Counsel: Ian McBride and Natalie Scott for the Applicant Rodrigo Escayola for the Respondent

HEARD: February 14, 2023

JUDGMENT ON APPLICATION FOR REFERRAL TO ASSESSMENT

Justice Sally Gomery

[1] The applicants seek an order directing an assessment of accounts paid to Gowling WLG (Canada) LLP (“Gowlings”) for work it performed for Carolyn Brown from 2018 to 2021. Gowlings consents to the referral of their invoices for assessments but seeks the court’s ruling with respect to privilege. It takes the position that portions of its file are subject to solicitor-client privilege belonging to Carolyn and that there is a question as to whether that privilege can be waived by the applicants acting on her behalf.

Background

[2] Christina (“Missy”) Rudin-Brown and Gordon (“Gord”) Brown are Carolyn Brown’s children. Jeanne Brown is her daughter-in-law. For simplicity’s sake, I will refer to the parties by their first names.

[3] In November 2017, Missy and Jeanne applied to have Carolyn declared incapable of managing her person and property under the Substitute Decisions Act, S.O. 1992, c. 30 (the “SDA”), and to have themselves appointed as her guardians for property and personal care. They also sought to set aside any power of attorney that Carolyn had granted to Gord. The respondents to the SDA application were Carolyn, Gord, and the Public Guardian and Trustee or PGT.

[4] On January 22, 2018, Gord contacted Gowlings to represent Carolyn in the proceedings. On January 26, 2018, Carolyn and Gord met with two Gowlings lawyers, Rod Escayola and Graeme Macpherson. The meeting lasted about two hours. In a seven-page memo to file subsequently prepared by Mr. Escayola, he set out what Carolyn shared about her current circumstances, her relationship with various family members, and her preferred living arrangements.

[5] On February 2, 2018, Gowlings served a notice of change of lawyer. The notice erroneously stated that Gowlings was acting for both Carolyn and Gord, when it ought to have stated that it was acting for Gord only in his capacity as Carolyn’s power of attorney. On February 6, 2018, following a discussion with the PGT, Gowlings told Gord about the error. Later that day, Mr. Escayola sent Gord an email reiterating that Gowlings was acting solely for Carolyn. Gord subsequently retained his own counsel, and Gowlings served an amended notice of change of lawyer.

[6] On February 20, 2018, Justice Kershman appointed Mr. Escayola as counsel to Carolyn under s. 3 of the SDA. All parties present at the hearing supported the appointment. The order specified that Carolyn would pay Mr. Escayola’s fees. On May 1st, Kershman J. declared Carolyn incapable of managing her property or person based on capacity assessments performed in July 2017 as well as other evidence, and the parties’ consent.

[7] For the next three years, Mr. Escayola acted as Carolyn’s s. 3 counsel, and his invoices were paid by her.

[8] On May 13, 2021, Justice Heather Williams rendered judgment on Missy and Jeanne’s SDA application, appointing them as Carolyn’s guardians. She concluded the September 2016 powers of attorneys granted to Gord were invalid because they were obtained through undue influence.

[9] On October 18, 2021, Gowlings provided a copy of their past invoices to Missy and Jeanne’s lawyer. On March 2, 2022, Missy and Jeanne began this application to obtain an assessment.

Analysis

[10] Although Gowlings has agreed to a referral for assessment, it has not consented to disclose its entire file. Mr. Escayola is concerned that Gowlings may run afoul of its professional obligations towards Carolyn if it discloses records for the period between January 26 and February 20, 2018, absent a court order waiving any privilege or confidentiality that may attach to them. Citing R. v. McLure, 2001 SCC 14, at paras. 17 and 35; and Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31, at paras. 20-21, Gowlings contends that communications subject to solicitor-client privilege should be disclosed only when absolutely necessary, applying “as restrictive a test as may be formulated short of an absolute prohibition in every case” (Goodis, at para. 21).

[11] These cases do not address the central point here, that is, when can a guardian for personal care and property of a person lacking capacity obtain a copy of confidential records with respect to their charge, including records subject to solicitor-client privilege?

[12] Missy and Jeanne take the position that the answer to this question is simple and straightforward: since they are Carolyn’s guardians, they have the right to disclosure of any document in Gowlings’ file that Carolyn could demand if she were competent. If a client seeks a document from their lawyer’s file, they are entitled to get it. Missy and Jeanne have the right to make any direction that Carolyn could make.

[13] The answer to the question is more nuanced, in my view. A person who is found to lack capacity does not forfeit all personal agency and dignity. They have the right to decide with whom they will share their most closely kept thoughts, hopes, and dreams. This is particularly important in the context of relationships that the law recognizes should be protected, such as lawyer-client and doctor-patient relationships. As Mr. Escayola rightly observed, Carolyn shared personal information with him, her lawyer, trusting that it would not be disclosed without her authorization. This is a trust that should not be violated absent a compelling reason.

[14] The principle that a person lacking capacity retains agency in their dealings with counsel is reflected in rule 3.2-9 of the Ontario Law Society’s Rules of Professional Conduct. It requires lawyers, insofar as possible, to maintain a normal relationship with a client who has diminished capacity. Further to r. 3.3-1, lawyers have a duty of confidentiality. It states:

A lawyer at all times shall hold in strict confidence all information concerning the business and affairs of the client acquired in the course of the professional relationship and shall not divulge any such information unless

(a) expressly or impliedly authorized by the client;

(b) required by law or by order of a tribunal of competent jurisdiction to do so;

(c) required to provide the information to the Law Society; or

(d) otherwise permitted by rules 3.3-2 to 3.3-6.

[15] The commentary to this rule explains its rationale and notes that a lawyer’s duty to keep a client’s information confidential is separate and broader than the privilege that may attach to it:

A lawyer cannot render effective professional service to the client unless there is full and unreserved communication between them. At the same time, the client must feel completely secure and entitled to proceed on the basis that, without any express request or stipulation on the client's part, matters disclosed to or discussed with the lawyer will be held in strict confidence.

This rule must be distinguished from the evidentiary rule of lawyer and client privilege, which is also a constitutionally protected right, concerning oral or documentary communications passing between the client and the lawyer. The ethical rule is wider and applies without regard to the nature or source of the information or the fact that others may share the knowledge.

[16] In sum, a guardian is not entitled to intrude on their charge’s personal sphere by obtaining information shared in confidence, including privileged information, unless they have a valid reason for doing so. A court may order disclosure of a lawyers’ records, but only to the extent required, and bearing in mind that a person with diminished capacity remains entitled to privacy unless disclosure of information provided in confidence is required to protect their interests.

[17] In the circumstances of this case, I find that Missy and Jeanne, as Carolyn’s guardians of property, have a legitimate purpose for obtaining disclosure of Carolyn’s file at Gowlings. They have a duty to protect Carolyn’s interests by ensuring that she was billed only for work done for her and that the fees charged were reasonable. As a result, the solicitor-client privilege that attaches to the file is waived.

[18] As held in Price v. Sonsini (2002), 60 O.R. (3d) 257 (C.A.), at para. 19: “Public confidence in the administration of justice requires the court to intervene where necessary to protect the client's right to a fair procedure for the assessment of a solicitor's bill.” Gowlings billed Carolyn for work done from January 2018 forward. In an assessment hearing, a law firm may be required to disclose its entire file: Nanaksar v. Singh, 2017 ONSC 2511, at para. 12; Gluckstein Personal Injury Lawyers P.C. v. Yu, 2019 ONSC 7387, at paras. 9 to 13.

[19] This does not mean that Gowlings’ entire file must necessarily be disclosed. The assessment officer will have the task of determining the appropriate scope of production, weighing the potential relevance of various categories of records with other considerations, such as proportionality and cost. The officer may also conclude that there are certain documents that have no bearing on the assessment, and which contain information supplied in confidence by Carolyn that should not be shared with third parties, including her guardians.

Disposition

[20] The application is granted for the order proposed jointly by the parties.

Justice Sally Gomery Released: February 15, 2023