Court File and Parties
CITATION: BLAIR et al v. THE HONOURABLE PREMIER DOUGLAS ROBERT FORD et al, 2023 ONSC 4944 Court File No.: CV-21-00668149-0000 Motion Heard: 2023-05-09 Superior Court of Justice - Ontario
Re: BLAIR et al, plaintiffs And: THE HONOURABLE PREMIER DOUGLAS ROBERT FORD et al, defendants
Before: ASSOCIATE JUSTICE R. FRANK
Appearances: G. Tighe and A. Melfi for the defendant/moving party, The Honourable Premier Douglas Robert Ford V. Yankou and S. Pottle for the defendants/moving parties, Mario Di Tommaso, Paul Boniferro, Steve Orsini and His Majesty the King in Right of Ontario L. Youd for the defendant/moving party, Dean French S. Dewart and I. McKellar for the plaintiffs/responding parties
Heard: May 9, 2023
Reasons for Decision
1These are motions by the defendants seeking an order:
(a) removing Julian Falconer and Falconers LLP as lawyers of record for the plaintiffs in respect of this action; and
(b) for production of portions of the Falconers LLP file concerning any advice given to the plaintiff, Bradley Blair, with respect to a complaint he made to the Ombudsman of Ontario (the “Ombudsman”) dated December 11, 2018 (the “Ombudsman Complaint”) and the release and publication of the Ombudsman Complaint to the media, and the related application for judicial review in the Divisional Court, Court File No. 781/18 (the “Divisional Court Application”, and collectively with the Ombudsman Complaint, the “Complaint Proceedings”).
2For the reasons that follow, the defendants’ motions are dismissed.
A. Background
3The plaintiffs in this action are Bradley Blair, his spouse Danielle Blair, and their children, Nathaniel Blair and Ashley Blair. The plaintiffs are represented in this action by Julian Falconer of Falconers LLP.
4Mr. Blair is the former Deputy Commissioner of the Ontario Provincial Police (“OPP”) and this action concerns the termination of Mr. Blair’s employment in March 2019. The defendants allege that Mr. Blair was terminated with cause on March 4, 2019 due to his disclosure of confidential information in a public forum.
5The key events that pre-date Mr. Blair’s termination include the following:
(a) In September 2018, then OPP Commissioner Vince Hawkes announced his retirement effective November 2018, and a process was implemented by the Government of Ontario to hire his replacement. At the time, Mr. Blair was the Deputy Commissioner of the OPP.
(b) On November 3, 2018, Mr. Blair was appointed interim Commissioner of the OPP pending the hiring of a new Commissioner.
(c) Mr. Blair became a candidate for the position of Commissioner of the OPP but was ultimately unsuccessful in his application.
(d) On November 29, 2018, former Toronto Police Superintendent Ron Taverner was selected for appointment as the new OPP Commissioner. [1]
(e) Mr. Blair retained Mr. Falconer and Falconers LLP on December 7, 2018 and submitted the Ombudsman Complaint to the Ombudsman on December 11, 2018. In the Ombudsman Complaint, Mr. Blair requested that the Ombudsman conduct an independent review of the OPP hiring process. The Ombudsman Complaint indicated that it was submitted by Mr. Blair in his personal capacity and in his capacity as interim Commissioner of the OPP.
(f) On December 13, 2018, the Ombudsman declined to review the Ombudsman Complaint on a jurisdictional basis.
(g) On December 14, 2018, Mr. Blair commenced the Divisional Court Application seeking, among other things, a mandatory order requiring the Ombudsman to conduct an investigation into the hiring process for the Commissioner of the OPP. The Divisional Court Application indicated that it was commenced by Mr. Blair in his personal capacity and in his capacity as interim Commissioner of the OPP. Mr. Blair was represented by Mr. Falconer in the Divisional Court Application.
(h) By Order-in-Council dated December 15, 2018, Mr. Blair was removed from his position as interim Commissioner of the OPP and returned to his position as Deputy Commissioner of the OPP.
(i) In support of the Divisional Court Application, Mr. Blair swore and filed an affidavit dated February 15, 2019. The defendants assert that the affidavit included confidential information and documentation that Mr. Blair received solely by virtue of his position as Deputy Commissioner of the OPP and that it was disclosed without authorization.
(j) On March 4, 2019, Mr. Blair was terminated from his employment. It is the defendants’ position that there was just cause for Mr. Blair’s termination, namely the filing of confidential information and documentation in the Divisional Court Application, which the defendants assert was a breach of confidence and a conflict of interest under the Public Service of Ontario Act, 2006.
6In this action, commenced by statement of claim issued on September 2, 2021, Mr. Blair seek damages from the defendants in the amount of $13 million for wrongful dismissal, misfeasance in public office, negligence, negligent misrepresentation, intentional infliction of mental suffering, and breaches of the Charter, and Mr. Blair’s family seeks damages in the amount of $2 million pursuant to the Family Law Act. To date, none of the defendants have filed a statement of defence.
7In the statement of claim, the plaintiffs plead that: (a) Mr. Blair pursued the Complaint Proceedings in good faith; and (b) Mr. Blair was never directed by Deputy Minister Di Tommaso not to pursue the Complaint Proceedings, and that he was never told that commencing or continuing to pursue such proceedings could lead to the termination of his employment.
8The statement of claim includes the following pleadings:
Paragraph 103: “Mr. Blair pursued the December 11, 2018, complaint before the Ombudsman and the related Divisional Court application seeking a determination of the jurisdiction of the Ombudsman. Mr. Blair is not prevented from seeking such available avenues from his December 11, 2018, complaint by virtue of the position(s) held. A complaint to the Ombudsman and a Divisional Court application are remedies available to Mr. Blair and he pursued them in good faith.”
Paragraph 108: “The plaintiffs plead that Mr. Blair was never directed by the defendant Di Tommaso, including by way of Di Tommaso’s letter of December 28, 2018, to refrain from pursuing proceedings before the Provincial Ombudsman or at the Divisional Court. Mr. Blair was never told at any time that his actions in starting and/or continuing to pursue proceedings before the Provincial Ombudsman or at the Divisional Court could lead to his termination. Further, the plaintiffs plead that the defendant Di Tommaso never recused himself from direct oversight of Mr. Blair, notwithstanding the conflicts of interest, and that the plaintiff Mr. Blair never consented to the defendant Di Tommaso’s oversight, given this defendant’s obvious conflict of interest.”
Paragraph 116: “The Plaintiffs plead that this MAG Briefing Notice put the defendants on further notice that Mr. Blair’s good faith intentions are a factual issue requiring evidence and that due process was owed to Mr. Blair under the PSA and PSOA. The Plaintiffs plead that the Defendants capriciously ignored the legal advice of the Ministry of the Attorney General, indicative of bad faith and high-handedness by the defendants.”
B. Issues
9The issues on these motions are as follows:
Should Mr. Falconer and Falconers LLP be removed as counsel for the plaintiffs because: a. Mr. Falconer is a potential witness regarding advice given to Mr. Blair; b. Mr. Falconer is a potential witness regarding events with respect to which he was involved or participated in; or c. Mr. Falconer would effectively be an “unsworn witness” due to his prior involvement and participation in relevant events?
Should Mr. Falconer and Falconers LLP be removed as counsel for the plaintiffs because they have a conflict of interest based on a duty of loyalty arising from Mr. Blair’s retainer of Mr. Falconer and Falconers LLP?
Should the plaintiffs be required to produce the portions of the Falconers LLP file concerning any advice given to Mr. Blair with respect to the Ombudsman Complaint, the release and publication of the Ombudsman Complaint to the media, and the Divisional Court Application?
C. Law and Analysis
10The courts have recognized the following principles with respect to removal of lawyers of record because they will be a witness in the same proceeding:
While the court has an inherent supervisory jurisdiction to remove lawyers from the record, it should be slow to interfere with a litigant’s right to choose his or her counsel. [2]
Motions to disqualify counsel are informed by important policy considerations including the concern to maintain the high standards of the legal profession and the integrity of the system of justice, as well as the countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause. [3]
The test on a removal motion 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.” [4]
The court will exercise the “highest level of restraint” when asked to deprive parties of their chosen counsel and will only grant such motions “in the rarest of cases”. [5]
Depriving parties of their chosen representative imposes hardship that can only be justified if it is done to prevent a more serious injustice. [6]
The Court’s inherent jurisdiction extends to removing a lawyer who may be a witness in a case in which the lawyer acts as counsel. In cases where a party seeks to remove a lawyer of record because they will be called as a witness, the Court considers the following factors: (a) the stage of the proceedings; (b) the likelihood that the witness will be called; (c) the moving party’s good faith (or otherwise); (d) the significance of the evidence; (e) the impact of removing counsel on the party’s right to be represented by counsel of choice; (f) whether the case will be heard by a judge or jury; (g) the likelihood of real conflict arising or that the evidence will be tainted; (h) which parties will call the witness; and (i) the connection between counsel, the prospective witnesses and the parties involved in the litigation. [7]
When the basis of removal relates to a question of whether the lawyer will be a witness in the action, “[r]emoval of counsel does not depend on whether the lawyer may be called as a witness but rather whether there is a real likelihood that they will be called as a witness at trial.” [8]
When a lawyer appears as a witness on a contentious matter there is a conflict of interest created between the lawyer and client. The dual roles create a conflict between the lawyer’s obligations of objectivity and detachment, which are owed to the Court, and the lawyer’s obligations to the client to present evidence in as favourable a light as possible. The dual roles compromise the integrity of the justice system. [9]
11In addition to concerns that arise when a lawyer is called as a witness, concerns also arise where the lawyer would be asking questions on examination for discovery or cross-examination at trial about events in which he or she was a participant. The latter is of concern when it appears inevitable that, through the lawyer’s questioning, the lawyer would put his or her own knowledge of the case in issue such that the questioning will imply “the appearance of an unsworn offer of the lawyer’s version of the facts”. [10]
12The question of whether a lawyer may be a substantive witness may turn on whether the evidence is subject to and protected by solicitor-client privilege. In such situations, the court may need to determine whether there has been express or deemed waiver of solicitor-client privilege as a result of which the lawyer may become a material witness and his or her file, or aspects of it, may become producible.
13Privilege will be deemed to have been waived where the interests of fairness and consistency so dictate or when a communication between a solicitor and client is legitimately brought into issue in an action. When a party places their state of mind in issue and has received legal advice to help form that state of mind, privilege will be deemed to be waived with respect to such legal advice. [11] The onus of establishing a waiver of privilege rests with the party claiming that there has been a waiver. [12]
14The principle of deemed waiver has been explained by Perell J. as follows:
30Thus, a deemed waiver and an obligation to disclose a privileged communication requires two elements; namely: (1) the presence or absence of legal advice is relevant to the existence or non-existence of a claim or defence; which is to say that the presence or absence of legal advice is material to the lawsuit; and (2) the party who received the legal advice must make the receipt of it an issue in the claim or defence.
31Justice Corbett in Guelph (City) v. Super Blue Box Recycling Corp., supra, at paras. 87, 88, 97, 100, and 101 made the useful observation that the deemed waiver occurs as a matter of the party’s choice. Waiver does not occur because the party discloses that he or she received legal advice, nor does it occur because the party admits that he or she relied on the legal advice; it occurs because the party chooses to use the legal advice as a substantive element of his or her claim or defence. …
34And while the fact that the Defendants had received legal advice could have been relevant to the issue of whether the Defendants were acting in good faith, the Defendant do not rely on their having received legal advice as an aspect of that defence.
35I will borrow what Justice Corbett said in Guelph (City) v. Super Blue Box Recycling Corp., supra. It is only to the extent that the Defendants rely upon the fact that they received legal advice to establish their good faith that privilege will be waived on the basis of that reliance. Mere disclosure that legal advice was received about the Plaintiffs’ ownership of the private career colleges, by itself, does not give rise to waiver. The defendants do not rely on their having received[2` (sic) legal advice as evidence of their good faith. In my opinion, there was no waiver of privilege in the circumstances of the case at bar. [13]
15Deemed waiver may also be relevant to issues relating to demands for production from a lawyer’s file. In Stanton v. Balzer, [14] a lawyer who was a defendant in a professional negligence action sought production of parts of the file of another lawyer who had subsequently been retained to complete a transaction for the client, the plaintiff. The plaintiff (client) alleged that the new lawyer had been required to take steps to correct errors negligently made by the former lawyer (defendant) and claimed damages resulting from the former lawyer’s alleged negligence. Nicholson J. concluded that the sought‑after production from the new lawyer was relevant with respect to the plaintiff’s claim for damages for professional negligence and the plaintiff’s mitigation efforts. In that context, Nicholson J. explained the deemed waiver of privilege as follows:
24Indeed, in Martin v. Giesbrecht/Griffin, supra, for example, Braid J. explicitly recognized that solicitor-client privilege is a fundamental right. However, where principles of fairness and consistency require it, the client can be deemed to have implicitly waived the privilege. This occurs in circumstances where the relevance of the evidence in question is high, and the principles of fairness and consistency require disclosure to allow a party to adequately defend a claim. When a party places its state of mind in issue and has received legal advice to help form that state of mind, privilege will be waived with respect to such legal advice. [15]
16Nicholson J. also found that:
(i) The plaintiffs’ attempts to mitigate their damages through the engagement of the new lawyer, and the fact that the damages sought includes an amount for the new lawyer’s account, were highly relevant aspects of the action.
(ii) It would be unfair to the defendant lawyer to defend the action against her in the absence of this evidence.
(iii) Production of the new lawyer’s file would permit the court to determine what aspects of the new lawyer’s efforts related to remedying the alleged negligence of the former lawyer for the purposes of recovering damages representing the new lawyer’s fees and what, if any, steps may have been unrelated. [16]
17In those circumstances, Nicolson J. held that it would be unfair for the former lawyer to have to defend the professional negligence action against her without the sought-after production. The act of suing the former lawyer constituted “waiver of the solicitor-client privilege for all matters going to the issue of what caused the loss suffered by the client and to what extent the loss may be attributable to the solicitor in question.” [17]
1. Should Mr. Falconer and Falconers LLP be removed as counsel for the plaintiffs?
a. Is Mr. Falconer a potential witness regarding advice given to Mr. Blair?
18The defendants acknowledge that, in general, a litigant is entitled to be represented by a lawyer of their choosing. They submit that one of the exceptions to this right is when a party puts the legal advice they received from their lawyer in issue in the litigation and their lawyer is consequently made a material witness necessary for the proper adjudication of the dispute. In such circumstances, the defendants submit, a party’s lawyer must be removed from the record.
19The defendants argue that, in this case, Mr. Blair has put the legal advice he received from Mr. Falconer in issue, and that Mr. Falconer is accordingly a material witness in this action. More specifically, the defendants argue that:
(i) In the statement of claim, the plaintiffs have made various allegations that Mr. Blair’s actions, including with respect to the filings in the Divisional Court Application, were undertaken by Mr. Blair in good faith, and that he was never advised that his actions in filing confidential information in a public forum could lead to his termination.
(ii) As a result, Mr. Blair has put in issue his state of mind and the advice given (or not given) to him by Mr. Falconer with respect to the filings.
(iii) Having placed in issue his state of mind and advice given (or not given) to him, Mr. Blair has waived privilege over any communications relied on to inform that state of mind, including communications with Mr. Falconer, and all such communications are relevant.
(iv) On this basis, Mr. Falconer is a material witness with evidence relevant to the issues in the action and he must be removed as the plaintiffs’ lawyer of record because of the inherent conflict that arises when a party’s lawyer will be called as a witness at trial.
20The defendants submit that the only way for the plaintiffs to demonstrate good faith is for them to assert that Mr. Blair received and followed legal advice that he was permitted to act in the manner that he did, or that he did not receive any legal advice to refrain from acting as he did. They submit that the evidence is relevant in either scenario, and that there has been an implicit waiver of privilege because it is inevitable that the plaintiffs will be relying on evidence of the legal advice Mr. Blair received to demonstrate his good faith.
21The plaintiffs acknowledge that the statement of claim alleges that Mr. Blair acted in good faith in pursuing the Complaint Proceedings, putting Mr. Blair’s state of mind in issue. However, the plaintiffs submit that it does not follow that in doing so they have raised an issue about Mr. Blair’s communications with his lawyer or that Mr. Blair has waived privilege. They submit that the assertions of good faith in the statement of claim are not tied to his lawyer or the legal advice he received, and that there is no express or implied reliance on legal advice in support of their claims that would constitute waiver. They submit that the good faith allegations in the statement of claim may ultimately be supported by evidence other than legal advice received by Mr. Blair, such as Mr. Blair’s desire to protect the integrity of the OPP and its officers, as referenced in a briefing note dated December 12, 2018 from the Ministry of the Attorney General (the “MAG Briefing Note”) that had been provided to the defendants, or which they were made aware of at the time. The statement of claim makes express reference to the MAG Briefing Note, including that it indicates the need to assess Mr. Blair’s assertion of good faith on the basis of evidence.
22Having reviewed the impugned pleadings in the context of the entire statement of claim, including paragraphs 100 through to paragraph 116, I do not accept the defendants’ argument that the pleadings constitute a waiver of privilege. The pleadings do not indicate that Mr. Blair’s assertion of good faith is based on his reliance on advice from Mr. Falconer. Further, I do not accept the defendants’ argument that the circumstances imply such reliance in support of the claims, and that the only basis by which Mr. Blair could demonstrate good faith is through the legal advice he received (or did not receive).
23The defendants’ interpretation of the impugned pleadings is decontextualized and incorrectly seeks to read into the pleading a reliance by the plaintiffs on legal advice which is neither express nor implied. Read in context, the plaintiffs’ allegations that Mr. Blair acted in good faith immediately follow an account of the defendants’ purported grounds for terminating his employment, namely that he breached his oath of office and used his status as a sworn police officer to further his personal interests. The assertion of good faith that follows does not reference the advice of counsel or reliance on such legal advice, and later pleadings about good faith reference the MAG Briefing Note. In my view, absent any connection between the allegation of good faith and advice of counsel, it would be wrong to infer into the pleadings a reference to legal advice or reliance on such advice to establish Mr. Blair’s good faith.
24Further, it is not for the defendants to decide how the plaintiffs intend to support the allegation of good faith, or to determine on behalf of the plaintiffs that they choose to rely on legal advice as the basis for their assertion of good faith. Rather it is for the plaintiffs to determine the evidence on which they intend to rely. Waiver of privilege is a voluntary action by the party who benefits from the privilege, and a party seeking information should not be permitted to assert reliance on behalf of a party opposite and thereby cause a waiver of privilege.
25The defendants also rely on paragraph 108 of the statement of claim, in which the plaintiffs plead that Mr. Blair was not told at any time that continuing the Complaint Proceedings could lead to the termination of his employment. The defendants suggest that this refers to Mr. Blair’s counsel never having advised him of the consequences of seeking legal redress. I do not accept the defendants’ interpretation. Rather, reading the paragraph as a whole and in context, I interpret it to allege that Mr. Blair was not cautioned by Deputy Minister Di Tommaso, or anyone else in a position of oversight, that pursuing the Complaint Proceedings would constitute grounds for terminating his employment.
26In the result, the defendants have failed to establish that the plaintiffs are relying on Mr. Blair having received legal advice as a substantive element of their claim or have otherwise pleaded in a manner that is an express or deemed waiver of lawyer-client privilege. As explained in Creative Career Systems Inc. v. Ontario, “[i]t is only to the extent that the Defendants rely upon the fact that they received legal advice to establish their good faith that privilege will be waived on the basis of that reliance. [18] Without such waiver, I do not accept the defendants’ assertion that Mr. Falconer will be a witness in the action. Rather, the evidence that the defendants assert he may have with respect to advice given (or not given) is protected by privilege. The same is the case for any other lawyers at Falconers LLP.
b. Is Mr. Falconer a potential witness regarding events with respect to which he was involved or participated in?
27The defendants also submit that Mr. Falconer will be called as a witness with evidence with respect to events that are material to the action in which he was involved or participated in as a “player/actor”, including a multimedia campaign undertaken to publicize the Divisional Court Application though press conferences and press releases. Relying on Andersson v. Aquino, [19] the defendants submit that a lawyer and law firm should be precluded from acting or continuing to act in circumstances where “disputes as to what that lawyer or law firm may or may not have done or witnessed lie at the substantive heart of a litigation dispute between the parties, and/or when evidence of that lawyer or firm realistically may be very relevant, necessary and/or decisive in resolving critical and contentious factual issues.” [20]
28The plaintiffs submit that this argument was advanced for the first time in oral argument, which they say is improper. In any event, the plaintiffs submit that this argument should be rejected. The plaintiffs submit that lawyers act as agents for their clients, who are their principals, and on whose behalf they speak. This includes communications with other parties/counsel and the media, and appearances before the court. The plaintiffs submit that the actions of Mr. Falconer in this regard are unexceptional, including with respect to any statements made by Mr. Falconer in connection with disputed issues about whether Mr. Blair had submitted “retirement papers”, and that comments by a lawyer about matters of public interest do not disqualify that lawyer from continuing to act.
29It is unfortunate that the defendants, who had ample time and resources to prepare and brief their arguments for these motions, only raised this argument at the hearing of the motion. Although the defendants assert that there is a reference to Mr. Falconer acting as a spokesperson for Mr. Blair in the grounds listed in the notices of motion, there is no elaboration in the notices of motion as to why this would make him a witness, it is not referenced or argued in any of the defendants’ factums, and it was belatedly advanced as part of the defendants’ oral argument. In any event, the defendants have not demonstrated that Mr. Falconer’s public comments were outside of the scope of his solicitor‑client relationship with Mr. Blair or that he would be a witness with evidence that lies at the substantive heart of the litigation dispute.
30In my view, the facts and circumstances in Andersson are distinguishable from the present case. In Andersson, the court concluded that:
i. The impugned law firm had been involved in the preparation of documentation regarding the disputed transaction in issue in that action.
ii. The lawyers involved in the transaction were witnesses in relation to what was done or attempted in relation to key events.
iii. The evidence of the law firm in its role as corporate counsel with respect to the transaction in issue had great significance in relation to the crucial factual questions regarding the disputed share transfer and related documentation, including when it was executed and received by various relevant persons.
iv. The evidence of the lawyers and staff at the impugned law firm in relation to contentious issues was likely to be relevant and important. [21]
31In my view, the nature of the involvement of the Falconers LLP firm in this case does not indicate that Mr. Falconer or other lawyers at the firm will have evidence with respect to crucial factual questions. In drawing this conclusion, the following principles noted in Andersson are germane:
33… a lawyer or law firm’s ability to represent a client in litigation is not necessarily precluded by that lawyer or firm merely having a degree of prior involvement and familiarity with that client’s affairs, including developments giving rise to the particular dispute to be litigated.
34Parties regularly act on the recommendations and advice of lawyers, who frequently communicate decisions made and positions adopted by their clients. …
35Lawyer involvement in that sense does not necessarily disqualify continued lawyer involvement if a dispute evolves into formal litigation. Otherwise, a great many litigants automatically would be deprived of their preferred legal representation, in which they have invested considerable time and expense. [22]
32Given the nature of Mr. Falconer’s prior activity, I do not accept the defendants’ assertion that Mr. Falconer or any other lawyers at Falconers LLP will be a witness in the action regarding material events in which they participated such that they will have evidence that that lies at the substantive heart of the dispute or that will be relevant, necessary, or decisive in resolving critical and contentious factual issues.
c. Will Mr. Falconer be an “unsworn witness” due to his prior involvement and participation in relevant events?
33Relying on the principles outlined in Wiggins v. Ricciardi, the defendants argue that even if Mr. Falconer is not called as a witness, during his questioning of witnesses on examination for discovery or at trial, Mr. Falconer would be putting his own knowledge of the case in issue such that he will in effect become an unsworn witness. The defendants submit that this will inevitably occur due to Mr. Falconer’s involvement in the matters in issue, and that it would have a detrimental effect on the administration of justice.
34In Wiggins, the plaintiff commenced an action for professional negligence and misconduct against a psychologist, Dr. Ricciardi, who had provided counselling to the plaintiff’s children with respect to an acrimonious divorce proceeding. Mr. Wiggins was represented in the divorce proceeding by a lawyer, Mr. Ludmer. The issue before the court in Wiggins was whether Mr. Ludmer should be permitted to assist Mr. Wiggins’ lawyer in the professional negligence action, including by conducting the examination for discovery of Dr. Ricciardi and participating as co-counsel at trial. In considering the question of the likelihood that Mr. Ludmer would be called as a witness, Associate Justice Graham described the potential concern as follows:
… However, the issue is not solely whether the lawyer would be called as a witness but also whether, based on his numerous communications with the defendant, he would be putting his own knowledge of those communications in issue. The possibility of harm arising from the lawyer’s involvement is that, in conducting an examination for discovery or a cross‑examination at trial of the defendant, his questioning will imply “the appearance of an unsworn offer of the lawyer’s version of the facts” (see 1298781 Ontario Inc. et al. v. Levine, supra). [23]
35Associate Justice Graham noted that through the prior retainer in the divorce proceeding, Mr. Ludmer interacted extensively with the defendant, Dr. Ricciardi. In determining that Mr. Ludmer should be prohibited from acting for the plaintiffs in their professional negligence action against Dr. Ricciardi, Associate Justice Graham made the following findings:
29…It is difficult to imagine how Mr. Ludmer could conduct an examination for discovery of Dr. Ricciardi without touching on the substance of their communications, for example those in which he provided Dr. Ricciardi with materials about parental alienation and the names of experts in the field of reunification theory. So, even accepting that Mr. Ludmer may not be called to testify as a witness, it seems inevitable that, through his questioning of Dr. Ricciardi, he would put his own knowledge of the case in issue.
31If Mr. Ludmer were to conduct an examination for discovery of Dr. Ricciardi, with whom he had extensive interactions during the divorce action that ultimately led to this action, he would have to ask him questions about information and communications received from Mr. Wiggins, many of which were communicated through Mr. Ludmer himself. Mr. Ludmer would then have to tiptoe through a minefield where he would inevitably be drawing on his personal knowledge of his communications with Dr. Ricciardi, putting him in the untenable position of relying on his own knowledge, not just of the underlying divorce proceeding, but of communications that constitute crucial evidence in the action against Dr. Ricciardi. [24]
36Wiggins is distinguishable on its facts. In Wiggins, the concern with Mr. Ludmer acting as counsel arose based on his extensive relationship with Dr. Ricciardi, the defendant in a professional negligence action, through a retainer in a prior divorce proceeding that ultimately led to the professional negligence claim. In the present case, there is no equivalent to the extensive discussions and interactions between the lawyer in question and the defendants. Here, Mr. Falconer had no relationship with the defendants other than as opposing counsel. Unlike the situation in Wiggins, Mr. Falconer is not in any position to examine the defendants for discovery or cross‑examine them at trial based on knowledge he gained through meetings with them or by having been involved in instructing them. Unlike Wiggins, this is not a situation where Mr. Falconer initially worked with and alongside the defendants and now seeks to act against them as opposing counsel. At all times, Mr. Falconer acted for a party opposite to the defendants. His knowledge is based on his brief and not on the substance of his communications with the defendants (as was the case in Wiggins).
37For these reasons, Mr. Falconer would not be putting in issue his knowledge of the case (i.e. his knowledge based on participation in events or communications with the defendant), and there would be nothing unusual about Mr. Falconer examining or cross-examining witnesses. In these circumstances, there is no concern that Mr. Falconer’s questioning will imply “the appearance of an unsworn offer of the lawyer’s version of the facts”.
d. Application of the factors outlined in Essa (Township)
38I now turn to an analysis of the factors outlined in Essa (Township) v. Guergis:
i. The stage of the proceeding: The defendants argue that given the status of this action, in which the defendants have yet to plead, there will be no prejudice to the plaintiffs in retaining a new lawyer to prosecute this action on their behalf. In my view, this oversimplifies the situation. Although the defendants have yet to deliver statements of defence, there is nevertheless a background and history to this proceeding in respect of which Mr. Falconer and Falconers LLP have been involved and acted for Mr. Blair since 2018. Therefore, although the action is at an early stage, there would be some prejudice to the plaintiffs if Mr. Falconer and Falconers LLP were removed because new counsel would have to familiarize themselves with a fairly extensive background and history of events relevant to this action.
ii. Likelihood that the witness will be called: For the reasons outlined above, there is no basis to conclude at this time that Mr. Falconer or any other lawyer at Falconers LLP will be a witness in this action. Further, for the reasons noted, there is no basis to conclude that in conducting an examination for discovery or a cross‑examination at trial of the defendant, Mr. Falconer’s questioning would put his own knowledge of the case in issue and imply the appearance of an unsworn offer of his version of the facts.
iii. The moving parties’ good faith (or otherwise): The plaintiffs acknowledge that there is no evidence of bad faith on the part of the defendants but suggest that an absence of good faith can be inferred from the defendants’ contrived interpretation of the statement of claim as a basis for suggesting that Mr. Blair has waived privilege and, therefore, that Mr. Falconer will be a witness. While there is no evidence that the defendants’ motions are tactical, as the Divisional Court noted in Essa (Township), “[i]t should also be borne in mind that all applications to remove solicitors from the record are not brought with the purest of motives. The expense and delay involved in retaining new counsel may work to the substantial benefit of an opposing party in some cases.” [25] I am also mindful that certain of the defendants’ arguments had not been raised in their motion materials, including their factums, and were asserted for the first time in oral argument.
iv. Significance of evidence: For the reasons noted, as there has been no waiver of privilege, there is no basis to conclude at this time that Mr. Falconer or any other lawyer at Falconers LLP will be a witness in this action.
v. Impact of removing counsel on the party’s right to be represented by counsel of choice: As noted, Mr. Falconer and Falconers LLP have acted for Mr. Blair with respect to issues relevant to this matter since 2018. Given the nature and complexity of this action, the plaintiffs would be impacted by a removal order. In addition, absent circumstances where there would otherwise be a detrimental effect on the administration of justice, the plaintiffs’ freedom to choose counsel is an important interest that should be protected.
vi. Whether the case will be heard by a judge or jury: The parties agree that the action will be heard by a judge. The trial judge will be well-positioned to deal with any issues that arise in the event that, through changed circumstances, any of the counsel in this action are required to testify.
vii. Likelihood of real conflict arising or that the evidence will be tainted: For the reasons outlined above, as there has been no waiver of privilege, there is no basis to conclude at this time that Mr. Falconer or any other lawyer at Falconers LLP will be a witness in this action. Therefore, there is no real likelihood of a conflict arising with respect to any evidence from Mr. Falconer or anyone at Falconers LLP.
The defendants also raise a different type of potential conflict. They submit that Mr. Blair may have a professional negligence claim against Mr. Falconer with respect to the advice given (or not given) by him regarding the filing of materials in connection with the Divisional Court Application. The defendants submit that, as a result of the potential negligence claim, Mr. Falconer will be in a conflict of interest if he continues to act for Mr. Blair. The defendants assert that a lawyer cannot act for a client when the lawyer’s own interests will cause a loss of objectivity in representing the client. They submit that because of the potential professional negligence claim, Mr. Falconer clearly has an interest that is beyond that of advocate in this proceeding.
In response, the plaintiffs submit that the potential negligence claim is of no concern to the defendants and irrelevant to the action. They also submit that the defendants do not suggest that Mr. Falconer has failed to satisfy his professional obligations to advise Mr. Blair of potential conflicts, and to obtain independent legal advice in cases where potential conflicts have arisen.
In my view, this speculative conflict raised by the defendants has no bearing on their rights and causes them no prejudice. Further, in the current circumstances, the speculative conflict has no bearing on the administration of justice or the integrity of the justice system. The likelihood of a real conflict has not been established.
viii. Which party will call the witness: Again, for the reasons noted, as there has been no waiver of privilege, there is no basis to conclude at this time that Mr. Falconer or any other lawyer at Falconers LLP will be a witness in this action.
ix. The connection between counsel, the prospective witnesses and the parties involved in the litigation: As there is no basis for Mr. Falconer or any other lawyer at Falconers LLP to be called as a witness, no concern arises with respect to the connection between Mr. Falconer/Falconers LLP, the prospective witnesses and the parties involved in the litigation.
39In summary, the defendants have failed to satisfy the crucial factor that there is a likelihood that Mr. Falconer or anyone else at Falconers LLP will be a witness in this action, either with respect to advice given or participation in material events. Further, there is no concern that because of prior interactions with the defendants, Mr. Falconer’s examination or cross-examination of witnesses would effectively make him an unsworn witness. For these reasons, many of the other Essa (Township) factors are inapplicable and there is no likelihood of a real conflict or tainting of evidence.
40As noted in Essa (Township), “courts should be reluctant to make what may be premature orders preventing solicitors from continuing to act. In view of the expense of litigation and the enormous waste of time and money and the substantial delay which can result from an order removing solicitors, courts should do so only in clear cases.” [26] This is not a clear case. The defendants have not demonstrated that it would be appropriate to deprive the plaintiffs of their counsel of choice and order the removal of Mr. Falconer and Falconers LLP at this stage of the action.
2. Is Mr. Falconer precluded from acting based on a duty of loyalty?
41The defendants submit that a lawyer who acted for an employer cannot later act for a terminated employee in a wrongful dismissal action against that employer. In this regard, the defendants refer to certain written representations by Mr. Falconer that he was retained to act for Mr. Blair in his personal capacity as well as in his capacity as the then‑interim Commissioner of the OPP. The defendants submit that this demonstrates that Mr. Falconer and Falconers LLP have a duty of loyalty giving rise to a conflict of interest that precludes them from acting against Mr. Blair’s former employer.
42In support of this argument, the defendants reference the “bright line” test with respect to conflicts of interest. The Supreme Court of Canada has explained a lawyer’s duty of loyalty to their client, and the requirement that a lawyer avoid conflicts of interest, as follows:
As we held in R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631 (S.C.C.), the general “bright line” rule is that a lawyer, and by extension a law firm, may not concurrently represent clients adverse in interest without obtaining their consent — regardless of whether the client matters are related or unrelated: para. 29. However, when the bright line rule is inapplicable, the question becomes whether the concurrent representation of clients creates a “substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person”: Neil, at para. 31. [27]
43This duty of loyalty argument is not based on any of the grounds listed in the defendants’ notices of motion, nor is it argued in their factums. Once again, this is an argument raised by the defendants for the first time in oral argument. In any event, the plaintiffs dispute that Mr. Falconer and Falconers LLP owe a duty of loyalty to any of the defendants. They submit that Mr. Blair’s wrongful dismissal claim is not against his former office (i.e. the Office of the Commissioner of the OPP). The plaintiffs also submit that this new argument by the defendants is inconsistent with Deputy Minister Di Tomasso’s position at the time of the disputed events, namely that Mr. Falconer was acting for Mr. Blair in his personal capacity only.
44In my view, the defendants’ assertion of an alleged conflict of interest based on Mr. Falconer’s retainer must be rejected. I recognize that the Complaint Proceedings, including the Divisional Court Application, indicate that they were brought by Mr. Blair in his personal capacity and his capacity as the then‑interim Commissioner of the OPP. Further, it is clear from the record that Mr. Falconer and Falconers LLP indicated that they were retained to represent Mr. Blair in the Complaint Proceedings. However, this does not demonstrate that Mr. Falconer and Falconers LLP were retained by Mr. Blair’s employer or any of the defendants, nor that Mr. Falconer and Falconers LLP have a duty of loyalty to any of the defendants that would potentially create a conflict of interest. Further, the position now asserted by the defendants is entirely inconsistent with the expressly stated position of Deputy Minister Di Tomasso in his correspondence to Mr. Blair dated December 28, 2019 and in the March 4, 2019 letter terminating Mr. Blair’s employment. [28] The December 28, 2018 letter from the Deputy Minister Di Tomasso to Mr. Blair reads, in part, as follows:
Further, I would ask that you advise Mr. Falconer that he acts for you in your personal capacity only. He should, therefore, refrain in future from representing that he is counsel for you in your official capacity as the former interim Commissioner of the OPP. If you have any questions in this regard, please do not hesitate to contact me.
45The March 4, 2019 termination letter reads, in part, as follows:
In my prior correspondence, I also directed you to advise Mr. Falconer that he was acting for you in your personal capacity only. Given that Mr. Falconer is acting for you in your personal capacity, there is no legitimate reason for you to have disclosed these records to Mr. Falconer. …
As noted above, you were previously directed to advise your lawyer that he represents you in your personal capacity only. …
46It is clear that Deputy Minister Di Tomasso did not consider Mr. Falconer to be acting on his behalf, or on behalf of anyone other than Mr. Blair in his personal capacity, at any time. This stated position is irreconcilable with the defendants’ new assertion that Mr. Falconer or Falconers LLP have a duty of loyalty that creates a conflict of interest.
47In the result, I am unable to find that there is any duty of loyalty owed by Mr. Falconer or Falconers LLP that creates a conflict of interest precluding them from continuing to represent the plaintiffs in this action.
3. Should the plaintiffs be required to produce portions of the Falconers LLP file concerning any advice given to Mr. Blair with respect to the Ombudsman Complaint, the release and publication of the Ombudsman Complaint to the media, and the Divisional Court Application?
48The defendants submit that when a plaintiff puts into issue the nature of the legal advice received, there is a deemed waiver of solicitor-client privilege and it would be unfair to deny a defendant access to documents that might shed light on the plaintiff’s instructions and state of mind. [29] They also submit that privilege will be waived when fairness and consistency so dictate, or where a party places its state of mind at issue. [30]
49The defendants argue that, in the present case, the plaintiffs’ pleading has resulted in a deemed waiver of solicitor-client privilege with respect to the advice given (or not given) by Mr. Falconer to Mr. Blair concerning the potential effect of his filings in the Divisional Court Application. On this basis, they argue that Mr. Falconer’s unredacted file material on that issue should be produced because it would be unfair to deny the defendants access to the documents which may shed light on Mr. Blair’s instructions and state of mind.
50For the reasons outlined above with respect to the question of whether Mr. Falconer should be removed as counsel of record, I find that the plaintiffs’ pleading is not a deemed waiver of solicitor-client privilege. Further, there is no basis to find that fairness and consistency require the requested production. The facts in this case are distinguishable from those in Stanton and the other cases relied on by the defendants. As noted, Stanton was a professional negligence claim in respect of which the requested production was necessary in order for the defendant to test the plaintiff’s claims, and the plaintiff’s act of suing the former lawyer for allegedly negligent advice constituted a waiver of privilege for matters going to the cause of the alleged loss suffered by the client and the extent to which that loss may be attributable to the former lawyer. [31] Unlike the situation in Stanton, the defendants in this case have not demonstrated that the sought‑after production is necessary in order for them to test the plaintiffs’ claims or with respect to the issues of attribution of liability. In the circumstances of this action, there is no basis to order the requested production.
D. Disposition and Costs
51For the reasons outlined above, the defendants’ motions are dismissed.
52With respect to costs, the parties had agreed on the quantum payable that was dependant on success. Pursuant to that agreement, I order the defendants to pay the plaintiffs costs fixed in the amount of $14,000 (inclusive of disbursements and taxes) within 30 days.
R. Frank Associate J. DATE: August 31, 2023
1Ultimately, Mr. Taverner withdrew from consideration for the position of Commissioner of the OPP.
2Lepan v. Lofranco et al., 2021 ONSC 1757 (“Lepan”) at para 32, citing Mazinani v. Bindoo, 2013 ONSC 4744 (“Mazinani”)
3MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 (“MacDonald Estate”)
4Maftoun v. Banitaba, 2012 ONCA 786 at para 4
5Best v. Cox, 2013 ONCA 695 at para 8
6Urquhart v. Allen Estate, 1999 CarswellOnt 4126 at para 19
7Essa (Township) v. Guergis, 1993 CarswellOnt 473, [1993] O.J. No. 2581 (Div. Ct.) (“Essa (Township)”). The case law and principles for determining whether a lawyer should be precluded from acting because they may be a witness in the same proceeding were summarized in Mazinani at paras 60 and 61
8Milicevic v. T. Smith Engineering, 2016 ONSC 2166 at para 69 (emphasis in original)
9Urquhart v. Allen Estate, [1999] O.J. No. 4816 (S.C.J.) at paras 27 and 28
10Wiggins v. Ricciardi, 2023 ONSC 2297 (“Wiggins”) at paras 11, 25(ii), 29, 31 and 32
11Bank Leu AG v. Gaming Lottery Corp., [1999] O.J. No. 3949 (“Leu”) at para 5
12Bielak v. Marilyn Dadouch, Firm Capital, 2020 ONSC 855 at para 18
13Creative Career Systems Inc. v. Ontario, 2012 ONSC 649 (“Creative Career”) at paras 30-31 and 34-35, citing Guelph (City) v. Super Blue Box Recycling Corp., [2004] O.J. No. 4468 (S.C.J.)
14Stanton v. Balzer, 2022 ONSC 6600, Court File No. CV-20-0001797-0000, November 24, 2022, Nicholson J. (unreported) (“Stanton”)
17Stanton at para 18 citing Froates v. Spears, 1999 CarswellOnt 60 (Ont.Gen.Div.)
18Creative Career at para 35
19Andersson v. Aquino, 2018 ONSC 852 (“Andersson”)
25Essa (Township) at para 46; Lepan at para 28
26Essa (Township) at para 43
27Wallace v. Canadian Pacific Railway, 2013 SCC 39 at para 8, referencing R. v. Neil, 2002 SCC 70
28In addition to the termination letter, an Order-in-Council was made on March 4, 2019 revoking the appointment of Mr. Blair as Deputy Commissioner of the OPP.
29See Kota v. Raphael, 2003 CarswellOnt 2863 (S.C.J.) at para 16; Veneris v. Parker, 2020 ONSC 5654; 1824120 Ontario Limited v. Matich, 2021 ONSC 8406 at para 12
31Stanton at para 18 citing Froates v. Spears, 1999 CarswellOnt 60 (Ont.Gen.Div.)