Court File and Parties

COURT FILE NO.: FS-22-30156-000 DATE: 2024-06-24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARION ELIZABETH BREUKELMAN, Applicant AND: DARIO ANTONIO MIRET, Respondent

BEFORE: M.D. Faieta J.

COUNSEL: Gavin MacKenzie, for the Applicant Jeffrey Radnoff, for the Respondent

HEARD: December 20, 2023

Endorsement

[1] The Respondent husband brings this motion for an Order removing Tanya Road and Rahul Shastri as the lawyers of record for the Applicant wife and her sister Tanya Basso, respectively, in this family law proceeding as well as in two related civil actions. He brings the motion because his lawyer’s former legal assistant now works for Ms. Road.

Background

[2] The parties separated in May 2021 following a marriage of almost thirty years. They have two children that attend university. The parties worked for a land surveying business, R. Avis Surveying Inc. ("RAS"), owned by the Respondent husband’s parents (51%) with the balance owned by the Respondent husband. The Respondent’s parents are retired. The Respondent husband was the primary surveyor, and the Applicant wife was the chief financial officer. In 2021, the Respondent earned $1,135,000 and the Applicant earned $238,000. [See Endorsement, Shore J, August 9, 2022]

[3] Three proceedings have been commenced:

(1) RAS commenced an action (Court File No. CV-22-00675720) in January 2022 against the Applicant wife and her sister, Tanya Basso, who also worked for RAS, for, amongst other things, the return of property that they had allegedly stolen from RAS. In this action, Radnoff Haworth LLP acts for RAS and the Respondent husband, Matthew Valittuti acts for the Respondent husband’s parents and Rahul Shastri acts for the Applicant wife.

(2) The Applicant wife commenced an action (Court File No. CV-22-00679352) against RAS and the Respondent husband for wrongful dismissal. In turn, RAS and the Respondent husband added Tanya Basso as a defendant to the Counterclaim and advanced against her and the Applicant wife the claims that RAS made in the January 2022 action. In this action, Rahul Shastri acts for the Applicant wife, Radnoff Haworth LLP acts for RAS and the Respondent husband.

(3) The Applicant wife commenced a family law proceeding (FS-00030156-000) against the Respondent husband raising various issues, including a claim that the Respondent’s 49% equity stake in RAS is a joint family venture, or alternatively that he holds half of those shares in trust for the Applicant wife. In this family law proceeding, Tanya Road represents the Applicant wife and Evelyn Rayson represented the Respondent husband until April 2023.

[4] Olivia Valente was hired as an Assistant Law Clerk to Ms. Rayson, a sole practitioner, on April 1, 2021, about one month before the Respondent retained Ms. Rayson. Ms. Valente’s role was strictly administrative whereby she would update files, open and close files, and provide administrative support such as ordering process servers and answering phone calls. Ms. Valente provided this support to her supervisor, Ms. Geller, and to Ms. Rayson. Aside from the occasional summer student, Ms. Rayson had two employees: Ms. Geller and Ms. Valente.

[5] The Respondent changed counsel from Ms. Rayson to Robert Halpern on April 11, 2023.

[6] On May 12, 2023, Ms. Rayson signed a Continuing Power of Attorney for Property that appointed Eli Antel as her attorney for property solely in respect of her law practice. His duties were to wind down the law practice as Ms. Rayson would no longer be practicing.

[7] In mid-May 2023, Tanya Road, a sole practitioner, and the Applicant wife’s family law counsel, learned that her legal assistant and only employee would be terminating her employment as of June 8, 2023. On about May 17, 2023, Ms. Road contacted Ms. Rayson’s paralegal/senior law clerk, Hellen Geller, after learning that Ms. Rayson was closing her practice, to inquire about her plans. Ms. Geller suggested that another employee, Olivia Valente, might be a good candidate for legal assistant. Ms. Road states that Ms. Geller told her that Ms. Valente was a junior administrative person in their office and had little or no involvement on the Respondent’s file.

[8] On May 30, 2023, Ms. Road interviewed and hired Ms. Valente for the position of Legal Assistant with a start date of June 7, 2023. Ms. Road states that she asked about the nature of Ms. Valente’s involvement on the Respondent’ file and did not discuss the file itself. Ms. Road raised the issue of Ms. Rayson’s representation of the Respondent father as she had concerns about a potential conflict of interest. Ms. Valente advised that she only had administrative involvement with his file.

[9] On June 1, 2023, Ms. Valente was trained at Ms. Road’s office by Ms. Ortega.

[10] On June 6, 2023, Ms. Road sent Ms. Geller the following email:

… As discussed, given the fact that you[r] firm worked for Mr. Miret in the case of Breukelman v. Miret, a matter in which I represent the Applicant, and as I have hired your former employee, Oliva Valente, I would very much appreciate it if you could prepare a letter for Ms. Rayson’s signature to confirm the advice that Olivia did no substantive work on the file.

I am asking this to defend against any allegations which may be advanced by Mr. Miret’s on-going and current counsel that there is a conflict because Olivia is to be employed at my firm.

[11] Ms. Valente’s last day of employment with Ms. Rayson was on June 6, 2023.

[12] On June 7, 2023, Ms. Valente commenced employment with Ms. Road. Ms. Valente was copied by Ms. Road on an email between her and Mr. Halpern.

[13] On June 8, 2023, Mr. Antel sent the following email to Ms. Road:

… As discussed, attached please find my letter (sent as POA for Rayson Legal) that Olivia did not have significant involvement in the Miret/Breukelman matter.

[14] Mr. Antel’s letter dated June 8, 2023, states:

I am the power of attorney for Evelyn Rayson’s law practice, Rayson Legal.

I understand that you have recently hired Ms. Rayson’s former junior law clerk, Olivia Valente, for which Ms. Rayson is very grateful. During Olivia’s time with Ms. Rayson, Ms. Rayson acted as counsel for Dario Miret. You were, and I believe continue to be, counsel for Mr. Miret’s spouse, Marion Bruekelman.

To quell the notion of any conflicts, I have review[ed] Mr. Miret’s file and it appears that Olivia did not conduct any substantive work on this file nor did she have any substantive written communication with Mr. Miret.

I trust this is of assistance, but please advise if you require anything else.

[15] At a Rule 39 examination, Mr. Antel stated that he also spoke with Ms. Geller and Ms. Rayson prior to sending his letter. He states:

She [Ms. Geller] said that this file was managed entirely by herself and Evelyn. Olivia would have been copied on emails for filing purposes and did basic administrative things, filing documents away, forwarding emails, that type of thing, but did not substantive work on the file. …

She [Ms. Rayson] agreed with – with Helen. I told her this is what Helen said, and she said, yes, that’s right. …

I didn’t come to any conclusion about a conflict. I came to the conclusion that Olivia Valente did not do any substantive work on the file.

[16] On June 13, 2023, Mr. Radoff sent the following letter to Ms. Road and Mr. Shastri:

It has just recently come to our attention that Olivia Valente who used to work at Mrs. Rayson’s office, is now working at Ms. Road’s office and continues to work on the file involving our clients in the above noted matters. …

It is our view that opposing counsel in all actions cannot continue to act for their clients given the clear conflict in view of the Rules of Professional Conduct and case law. …

[17] On June 20, 2023, Ms. Road responded:

… We do not agree that there is any conflict. We will not be getting off the record.

We specifically screened, with the administrator appointed for Ms. Rayson’s practice, the specifics and extent to which Ms. Valente may have been involved in the Breukelman v. Miret matter, prior to engaging her.

That inquiry confirmed the extent of her involvement was purely administrative in nature. …

[18] On September 18, 2023, Ms. Valente left Ms. Road’s office.

Position of the Parties

[19] The Respondent submits that the two-part test established by Sopinka J. in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, for determining whether a law firm should be disqualified when a lawyer with confidential information transfers to a law firm that represents an adverse party equally applies when legal support staff move to another law firm.

[20] The Applicant submits that the nature of the transferring support staff’s responsibilities calls for the tests in MacDonald Estate to be applied differently, on a case-by-case basis, than in the case of a lawyer who changes law firms, and who is governed by the Law Society’s Rules of Professional Conduct. The Applicant submits that the nature of the support staff’s responsibilities and training are relevant both to whether a reasonably informed person would be satisfied that no use of confidential information would occur and to the risk that confidential information will be used to the prejudice of the client.

[21] The Respondent submits that Ms. Valente was involved in his file and had access to confidential information that, if disclosed to the Applicant or her counsel, would cause significant prejudice to him.

[22] The Applicant submits Ms. Valente was a junior clerical employee with no training as a law clerk whose duties were entirely administrative. She worked as the firm’s receptionist, answered the telephone, and copied and filed documents. She had no substantive involvement in the Respondent’s representation and no involvement with the preparation of the case. Further, in the three-month period that she was employed by Ms. Road, there is not the slightest reason to be concerned that Ms. Valente imparted to her employer confidential information that was in any way relevant to the issues in this family law proceeding. The Applicant submits that given Ms. Valente’s junior clerical position at Ms. Rayson’s law firm, the lack of any substantive involvement in the proceeding and the effective measures taken to prevent disclosure of relevant confidential information after she relocated, a fair-minded reasonable person familiar with the facts would inevitably conclude that no relevant confidential information has been or will be disclosed. Further, the Applicant submits that this motion has been brought for tactical reasons, particularly to delay proceedings and avoid payment of $341,000 in arrears, and should be dismissed for that reason alone.

Analysis

[23] In MacDonald Estate, Sopinka J. stated:

(a) Whether a lawyer or a law firm should be disqualified when a lawyer who represented an adverse party is hired by that law firm is informed by three competing policy considerations: (1) the need to maintain the high standards of the legal profession and the integrity of the administration of justice; (2) the view that a litigant should not be deprived of their choice of counsel without good cause; and (3) the desirability of permitting reasonable mobility in the legal profession. [MacDonald Estate, para. 16]

(b) Whether confidential information has or has not been used is not capable of being proven or disproven. As a result, the test for determining whether a conflict of interest should disqualify a lawyer or a law firm from acting is whether the public, as represented by the reasonably-informed person, would be satisfied that no use of confidential information brought with the transferring lawyer would occur. [MacDonald Estate, para. 47]

(c) The reasonably-informed person test requires two questions to be answered:

Question #1: Did the transferring lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?

Question #2: Is there a risk that the confidential information will be used to the prejudice of the client? [MacDonald Estate, para. 48]

(d) In respect of the first question of whether the lawyer received relevant confidential information attributable to a solicitor and client relationship:

… 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. [MacDonald Estate, para. 49]

(e) In respect of the second question of whether there is a risk that the confidential information will be used to the prejudice of the client:

(i) A lawyer who has relevant confidential information cannot act against his client or former client. In such a case the disqualification is automatic. [MacDonald Estate, para. 50]

(ii) The answer is less clear with respect to the partners or associates in the firm. … There is, however, a strong inference that lawyers who work together share confidences. In answering this question, the court should therefore draw the inference, unless satisfied on the basis of clear and convincing evidence, that all reasonable measures have been taken to ensure that no disclosure will occur by the "tainted" lawyer to the member or members of the firm who are engaged against the former client. Such reasonable measures would include institutional mechanisms such as Chinese walls and cones of silence. … [MacDonald Estate, paras. 50, 51]

(iii) A fortiori undertakings and conclusory statements in affidavits, without more, are not acceptable. These can be expected in every case of this kind that comes before the court. It is no more than the lawyer saying, "Trust me." This puts the court in the invidious position of deciding which lawyers are to be trusted and which are not. Furthermore, even if the courts found this acceptable, the public is not likely to be satisfied without some additional guarantees that confidential information will under no circumstances be used. … [MacDonald Estate, para. 52]

[24] The parties differ on how MacDonald Estate should be applied when non-legal staff change law firms. The Respondent submits that the two-part test in MacDonald Estate designed to assess whether the public, as represented by the reasonably-informed person, would be satisfied that no use of confidential information brought with by a lawyer who moves to another law firm also applies to non-legal staff that move to another law firm. The Applicant submits that MacDonald Estate should not be “blindly applied” to cases involving non-legal staff.

[25] There is little appellate authority on this issue.

[26] The Applicant submits that while the ultimate question on this motion is whether a reasonably-informed person would be satisfied that no use of confidential information would occur, the answer to that question in Hildinger v. Carroll did not turn on an inference that confidential information had been imparted to the non-legal staff, as would be the case with a transferring lawyer given the nature of the solicitor-client relationship. Rather than inferring, the court made a determination based on an assessment of what had actually happened.

[27] In Hildinger, which was also a family law case, the husband argued that he had been denied a fair trial because his wife’s lawyer had a disqualifying conflict of interest as the result of a legal secretary moving from the law firm that had represented the husband to a law firm that represented the wife. While working for the husband’s lawyer, the secretary typed correspondence that was sent to counsel for the wife and prepared court documents. She took no part in any strategy discussions between the husband and his lawyer. The court found that the wife and her law firm had satisfied the test of whether a "reasonably informed person would be satisfied that no use of confidential information would occur” without inferring that such confidential information had been disclosed by virtue of the nature of the relationship to the client and without requiring the transferring legal assistant to discharge the heavy burden of showing that no confidential information has passed.

[28] Laskin J.A. stated:

14 Most conflict of interest cases in this area deal with lawyers changing law firms, not legal secretaries. Still, I accept that in some circumstances a non-professional employee's change of firms could give rise to a disqualifying conflict of interest. However, no such circumstances exist here.

15 The Supreme Court of Canada has approved a straightforward test for determining whether a conflict of interest should disqualify a lawyer or a law firm from acting. The party against whom the allegation of conflict is made must demonstrate that a "reasonably informed person would be satisfied that no use of confidential information would occur." See MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 (S.C.C.) at paras. 44-51 and Davies, Ward & Beck v. Baker & McKenzie (1998), 40 O.R. (3d) 257 (Ont. C.A.), at 258-59. Ms. Hildinger and her law firm easily satisfied this test for these reasons:

• The secretary did not work for Mr. Vallance. She worked for another lawyer on a different floor of the firm's offices.

• The secretary gave unchallenged evidence that she was told by her new firm not to discuss the case with Mr. Vallance, she did not discuss the case with him and she did no work for him on it save for photocopying a single book of authorities, not knowing that it was for this case.

• Mr. Vallance did not have a financial relationship with the secretary. She was employed by the firm's management company. Kimmel, Victor, Ages is a loose association of five separate financial partnerships and economic entities and each lawyer hires his or her own support staff.

• Kimmel, Victor, Ages instituted password protection on Ms. Hildinger's file so the secretary could not gain access to it.

16 In the light of these considerations any reasonably informed member of the public would be satisfied that Mr. Vallance did not use confidential information obtained from Mr. Levencrown's office. [Emphasis added]

[29] The Applicant referred to two other cases and the Respondent referred to 17 other cases in involving different types of non-legal staff, the most material of which are described below.

Confidential Information Disclosed by a Prospective Client to a Screening Legal Secretary

[30] Some cases relied upon by the Respondent involve a spouse in a family law proceeding seeking the disqualification of counsel on the ground that this spouse had earlier sought to have that law firm represent them in that case and had disclosed confidential information in the process. The motion for disqualification in these cases does not arise from non-legal staff moving to a new law firm.

[31] In Dalgleish v. Dalgleish, [2001] O.J. No. 2187 (S.C.), a family law case, the wife contacted a lawyer’s office with a view to retaining him after dismissing her first lawyer. She did not speak with the lawyer but spoke, by telephone, to his law clerk twice and to his legal secretary twice. Notes of these conversations were sent by his staff to the lawyer. Three of the notes related to the making of an appointment and its cancellation. A fourth note, related to an eighteen-minute conversation that the legal secretary had with the wife, showed that a number of specific facts of the case were discussed including facts related to custody and access. The wife’s affidavit further alleged that she told the secretary that she feared being unable to afford to litigate against the applicant. The court found that the burden of proving that that confidential information had not been discussed shifted to the lawyer and that “… the proper response would have required evidence (by affidavit) from the secretary, which was really not forthcoming”: at para. 40.

[32] Nelson J., at paras. 30-31, stated:

The respondent is not required to disclose the confidential information alleged to have been imparted, as that would defeat the purpose of her application. How then might the solicitor discharge this heavy burden? There are at least two ways. The solicitor could, on cross-examination of the respondent on her affidavit, elicit admissions from her that prejudicial or confidential communication had not been discussed. As well, or alternatively, the solicitor could have delivered an affidavit of the secretary setting out, in specific detail, the nature of the conversations. In this latter case, the affidavit could then have referred to the fact that the secretary indicated that only matters of an administrative nature were discussed.

There is no question in my mind that the working relationship of a legal secretary and her employer lawyer is such that, a prospective client speaking to a secretary in the context of considering whether or not to retain the lawyer, would not differentiate much between them. This is so, as far as the information trail is concerned. The prospective client would, under ordinary circumstances, expect the secretary to convey all of the information to her employer.

[33] The wife was neither cross-examined on her affidavit nor did the secretary deliver an affidavit stating that the only matters discussed were of an administrative nature. However, the law clerk provided an affidavit which appended the legal secretary’s notes and stated that the legal secretary had advised her that the notes which she took during her telephone conversations with the wife were accurate as to the content of those telephone conversations. In ordering the removal of the lawyer as counsel for the husband, the court found that confidential information had been imparted to the legal secretary, and by implication to the lawyer. Nelson J., at para. 44, stated:

The note of the secretary attached to the law clerk's affidavit makes it abundantly clear that matters of substance relating to the case were discussed. There is no indication whether or not more information than is set out in the secretary's notes was given. I do not know if the notes were verbatim transcriptions. I do know that more than the making of an appointment was discussed. That fact, coupled with the allegation that Mr. Schmidt's secretary received information directly bearing on the matter, which the respondent now alleges is prejudicial to her case if disclosed, does shift the burden to the applicant to show the information was not prejudicial. Also, given the nature of the issues that the respondent discussed with the secretary, it is very likely that conclusions could have been drawn about her vulnerability, if any, in this family law matter. If the public is to have faith in a fair and impartial justice system, Mr. Schmidt cannot continue to act on this retainer.

[34] In Barrese v. Barrese, 2019 ONSC 3137, another family law case, the wife contacted a lawyer’s office in 2016 shortly after she separated from her husband to ascertain whether the lawyer would represent her. She disclosed that she had escaped from her home after experiencing violence. The notes taken by the legal assistant recorded basic information about the wife and her husband and the abuse that the wife had described. Those notes were forwarded to the lawyer, but he was not ultimately retained. About three years later, as the family law case proceeded towards trial, the wife once again contacted the same lawyer and spoke with his legal assistant seeking to retain the lawyer as co-counsel at trial. During a 30-minute telephone call, the wife shared sensitive and confidential information including details about the state of her marriage, her children, her work and her financial situation, as well as the status of the litigation and her views on negotiating position and potential settlement outcomes. Notes of this call were sent to the lawyer. In addition, the wife had a subsequent call with the lawyer’s law clerk to arrange a meeting with another lawyer in the firm. That meeting never occurred as, a few weeks later, the husband retained the law firm to represent him in this case. Horkins J. found that the wife’s conversations with the law firm’s legal secretary went beyond administrative and scheduling matters. As a result the court found that a solicitor and client relationship existed based on the contact between the screening legal secretary and the wife. The lawyer failed to displace the inference that the wife had imparted confidential information to the law firm and found that a reasonably informed person would not be satisfied that no use of confidential information would occur.

Law Clerk that Moves to Another Law Firm

[35] In Gouveia v Fejko, [1992] O.J. No. 3914 (Gen. Div.), aff’d [1992] O.J. No. 3913 (Gen. Div.), a law clerk that had assisted plaintiff’s counsel directly on the file moved to another law firm that acted for the defendant. The law clerk gave a personal oral undertaking to not have anything to do with this file. A similar direction was provided by counsel representing the defendant. Nevertheless, the law clerk did some unspecified work on the file at the direction of counsel for the defendant, who had apparently forgotten his earlier direction. The law clerk’s involvement on the file came to light when she contacted the plaintiff’s law firm to reschedule examinations for discovery. Master Sandler, at para. 13, found that the rules outlined in MacDonald Estate “apply to law clerks and litigation clerks, who do legal work on a file that otherwise a lawyer would do, as they do to lawyers themselves”. The court also found that the ethical wall was breached twice and that there was a risk that confidential information attributable to a solicitor-client relationship while the clerk worked with plaintiff’s counsel would be used to the prejudice of the plaintiff.

[36] In Cartledge (Litigation Guardian of) v. Brown (1998), 41 O.R. (3d) 376 (Gen. Div.), a law clerk had assisted plaintiff’s counsel in respect of a motor vehicle accident involving the death of the plaintiffs’ child and had been the person with whom the plaintiffs had the most frequent and regular contact concerning this litigation for a period of about three years. The clerk subsequently commenced employment with the law firm representing the defendant. On her last day of employment with the plaintiffs’ law firm, the law clerk gave an undertaking to the plaintiffs and their solicitors that she would have no further contact with the file. A week later this undertaking was confirmed by the defendant’s counsel in a memo to the law clerk and plaintiffs’ counsel. The memo also provided that the file would be physically separated from her place of employment. However, there was nothing in the memo to indicate that the law clerk had been instructed not to discuss the file with anyone at the defendant’s law firm, or that lawyer and others in the defendant’s law firm had been instructed not to discuss this case with the law clerk or to provide her with access to the defendant’s file. The court found that the law clerk’s undertaking and physical separation of the defendant’s file were inadequate to reasonably address the risk that the confidential information would be used to the prejudice of the plaintiffs.

Legal Secretary that Moves to Another Law Firm

[37] In J-Star Industries Inc. v. Berg Equipment Co. (Can.), [1992] 3 F.C. 639 (T.D.), a legal secretary moved to a law firm that represented Berg, which had filed an application to register a trademark, after having been employed for several years by the law firm that represented J-Star, which opposed the registration. The legal secretary had performed routine secretarial duties for the lawyer representing J-Star, including taking dictation and typing correspondence related to the client’s interests in the trademark.

[38] The court stated the rebuttable presumption that confidential information was imparted to the transferring lawyer by the client is inapplicable when a legal secretary transfers to a new law firm. Denault J., at paras. 21-23, stated:

In my opinion, such a presumption does not apply to the relationship between a client and his solicitor's secretary. Furthermore, although there may be a strong inference that lawyers who work in the same firm share confidences, I do not believe that a similar inference can be drawn with respect to the exchanges between lawyers and their secretaries. In the case of "non-lawyer personnel", it must be shown by the client that the person now employed by opposing counsel was involved in the preparation of the client's case in such a way as to have become privy to confidential information while employed by the client's counsel. It is quite simply untenable to presume that Ms. Paquin received confidential information relevant to the appellant's interest in the "Jamesway" trade-mark, by the very nature of her relationship to the client or his solicitor.

In the MacDonald Estate case, the junior member of the firm in question had been actively involved in the preparation of the appellant's case and was privy to many confidences disclosed by the appellant to the primary solicitor assigned to the case, prior to transferring to the firm representing the respondent in the action. The evidence adduced before this Court does not establish a similar involvement on the part of Dorothée Paquin. There was no evidence to indicate that she had attended any meetings at which confidential information had been imparted by the appellant or during which any case strategy had been discussed. Furthermore, a review of the affidavit evidence containing copies of the correspondence and documents prepared by Dorothée Paquin in relation to the appellant's file did not disclose any confidential information which, in the hands of the respondent, could possibly be used against the appellant's interests.

The Court is satisfied, in the circumstances of this case, that the measures taken by Mr. McManus to terminate Dorothée Paquin's continued involvement in this matter are sufficient, despite Ms. Paquin's admissions on cross-examination that she may have inadvertently prepared routine correspondence for Mr. McManus relating to this case in the past. In my opinion, a reasonable member of the public would not believe, in this case, that the appellant's confidential information was at risk. Further, I am not convinced that such a reasonable person would necessarily lose confidence in the administration of justice given this Court's decision to allow the Scott & Aylen firms to continue to represent the respondent despite Ms. Paquin's "secretarial" involvement with the files of both parties to this action. [Emphasis added. Footnotes omitted.]

[39] In Ocelot Energy Inc. v. Jans (1998), 165 Sask. R. 252 (Q.B.), a legal secretary moved to the law firm that was representing the defendant after she had worked with the lawyer representing the plaintiff in a civil proceeding to obtain access to lands owned by the defendant. During her four-year period of employment with counsel to Ocelot, the legal secretary had full access to and actively worked on the litigation file which included solicitor/client privileged information, as well as notes and memoranda dealing with sensitive strategic issues relating to this action.

[40] McLellan J. granted Ocelot’s application to restrain counsel for the defendant from acting for the defendant. In reference to J-Star Industries, McLellan J. stated, at paras. 15-18, 21 and 30:

15 I do not necessarily agree with Denault J. that exchanges between lawyers and their secretaries would not involve discussions of confidential matters relating to clients. Furthermore, in many instances an experienced legal secretary has as much or more knowledge than the lawyer as to what is contained in a particular file.

16 I agree that a secretary would not formulate strategy or develop arguments. However, if a file contains confidential or sensitive correspondence, memorandums or other documents, the lawyer's secretary would be expected to be quite familiar with that material.

17 In any event the decision of Denault J. in J-Star Industries is distinguishable from the application before me. In that case the secretary changed employment three days prior to the hearing. The evidential record for the opposition hearing had been finalized. The only matter remaining was the legal argument. In those circumstances any risk of communication of confidential information was so remote as to be almost non-existent.

18 In this case the lawyers have not completed all the pre-trial steps in order to have this case ready for trial. In addition, I have the affidavit of Mr. Hall who deposes that the file contained a great deal of solicitor/client privileged information, as well as notes and memoranda dealing with sensitive strategic issues and that there was "a significant amount of sensitive, privileged communication between myself and other members of Ocelot ..." and the law firm. […]

21 The opportunities for private discussions and sharing of confidences are magnified when the lawyer and secretary work in a two-person law firm. Mr. Heinricks [the defendant’s lawyer] employs two secretaries, one works exclusively on files dealing with real estate and the other, Ms. Strain, who handles all other files. […]

30 In my opinion a reasonably informed person would not be satisfied that no use of confidential information would occur in circumstances where a former member of the staff of a law firm who had full access to and had worked extensively on a client's file, was working directly for the lawyer representing the party opposed to the client in the litigation, and appeared to be working directly on the particular file for the new lawyer. [Emphasis added.]

[41] In Gottschlich v. Gottschlich, 2001 ABQB 456, a family law case, a legal secretary that had worked for the husband’s lawyer moved to a firm that represented the wife’s lawyer. Over a period of four years of involvement with the husband’s case, and while employed by the husband’s lawyer, the legal secretary:

• Dealt with clients and their personal papers;

• Prepared responses to Notices to Disclose, routine correspondence with other lawyers, and simple documents;

• Maintained contact with clients by telephone-answering queries and prepared memos on the telephone calls; and

• Was primarily responsible for dealing with clients with respect to revisions to affidavits, settlement proposals and letters to other lawyers which were reviewed by clients and often met with clients to have them swear their affidavits, statutory declarations and other such documents.

[42] The legal secretary’s affidavit stated:

• She never worked on the wife’s files.

• She never discussed the case with the wife’s lawyer or any other member of that law firm.

• The wife’s lawyer never discussed this case with her.

• The legal secretary was aware of the conflict of interest when she commenced her new employment and isolated herself from the wife’s file.

• A week after she commenced her employment, she gave the wife’s lawyer her undertaking.

[43] In concluding that the circumstances raised a disqualifying conflict of interest to remove the wife’s lawyer, Lee J. stated, at paras. 38-44:

The first question to be addressed as set out in Macdonald Estate supra is "did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?" Subsequent cases have held that the strict test for conflict of interest applicable to lawyers is not necessarily applicable to secretaries. Greater flexibility is required in the application of the MacDonald Estate decision which dealt with lawyers when applying the criteria there to secretaries.

Despite the Respondent's bona fide efforts made to isolate Ms. L'Hirondelle from this file, the reality is that she was exposed to and familiar with this file from her previous employment. When Ms. L'Hirondelle left her employment with Ms. Lynham, there was an understanding between employer and employee that Ms. Klassen would withdraw from the file. Ms. Klassen's decision to continue on the file may not have been communicated to Ms. L'Hirondelle until she had been employed by Emery Jamieson for over a week.

There have been effective efforts made to isolate Ms. L'Hirondelle from this file, and the Emery Jamieson firm and Ms. Klassen obviously take this issue of potential conflicts of interest very seriously. Notwithstanding this however, these steps are not as significant as measures taken in some of the cases referred to which included password locked document retrieval systems and safes.

The real issue ultimately here turns on the balance of convenience. Although the divorce was begun in 1999, this file is not that close to completion. If these parties were on the verge of trial or a significant amount of work had been done by Ms. Klassen on behalf of Ms. Gottschlich, the prejudice to Ms. Gottschlich would be seen to override Justice Sopinka's admonition that "the public requirement that there be an appearance of justice" is paramount in conflict cases.

At the present time, given the differing positions of the two parties in this litigation, it seems likely that this matter is still several months from going to trial. If the period of time throughout which the information held by Ms. L'Hirondelle had to be kept confidential was shorter, perhaps the perception would be that there would not be a conflict. Further, if the issues between the parties were just property issues, the conflict potential would not be seen to be so important as it is with the more sensitive custody and access matters extant here.

Admittedly this is a difficult balancing act, however I have decided that there is enough of an "appearance of justice" issue present to justify the problems created by removing Ms. Klassen from the file at this point.

Accordingly I conclude that Ms. L'Hirondelle's prior involvement on the Applicant's file as a legal secretary for Ms. Lynham, solicitor for the Applicant, and her subsequent employment as a legal secretary for Ms. Klassen, solicitor for the Respondent, do create a disqualifying conflict of interest sufficient to remove Ms. Klassen as solicitor for the Respondent. [Emphasis added.]

[44] In K. (M.S.) v. T. (T.L.), 2011 ONSC 5478, a family law case, Orders were issued in respect of two mediation/arbitration decisions in 2002 and 2006 related to parenting issues. In 2011, the mother brought a motion to change the Orders such that the child would be relocated outside of Toronto. This motion was opposed by the father. At that time, the mother’s lawyer became aware that his former legal assistant, Tet, was now working as a legal assistant for the father’s lawyer. The legal assistant delivered an affidavit which stated that her work for the mother’s lawyer was clerical and that she had no specific recollection of issues in the file that she acquired during that period. She further deposed that she had not discussed any substantive matters or strategy with the father’s lawyer with respect to this file.

[45] D.A. Wilson J., as she then was, stated at paras. 20-27:

The Court of Appeal has found that the same considerations that apply to a lawyer in terms of confidential information acquired during the solicitor/client relationship apply to other employees of the firm as well, including legal assistants.

I accept Tet's evidence that she has no recollection of the specific issues in the file or any present knowledge of confidential information. However, that is not the end of the inquiry. As Justice Nelson stated when considering a similar issue in Dalgleish v. Dalgleish:

The question one must ask is whether there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor that the court should then infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant...

The question to be asked is whether there existed a previous relationship sufficiently related to the current retainer, and if so, 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 burden has been described as heavy though not impossible [Dalgleish v. Dalgleish, supra] or difficult to discharge [MacDonald Estate v. Martin, supra].

In the case at hand, it is clear to me that the previous litigation is inextricably bound to the issues in the current litigation. The Applicant's motion seeks a finding of contempt against the Respondent for failure to comply with the terms of the Order of Klowak J. which resulted from the Bastedo mediation. That mediation and order was precisely what Grant was retained to deal with and the file on which Tet worked while in Grant's employ. To put it another way, it is abundantly clear that the retainer of Grant was not for some unrelated proceeding; rather, it culminated in the order which the Applicant relies on in his motion for contempt. Having made the determination of the close relationship between the current and prior litigation, the Court should infer that confidential information was imparted unless solicitor Wolfson persuades the Court that this was not the case.

The evidence of T.L.T. [the mother] is that she spoke to Tet on many occasions and considered her communications to be confidential. This is not surprising. If the lawyer is unavailable, clients often tell legal assistants the information to be passed on to the lawyer handling the file. In her capacity as Grant's assistant, I have no doubt Tet would have been apprised of the status of the file, the issues, and the various proceedings even if she was not part of any meetings between the lawyer and the client.

I agree with the comments of Nelson J. in Dalgleish v. Dalgleish, supra, when he noted:

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 litigations. 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.

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.

I have no doubt that in T.L.T.'s conversations with Tet, confidential information was imparted to her. The fact that Tet cannot recall these conversations or the discussions is of no moment to the issue of confidentiality between a solicitor and client. [Emphasis added. Footnotes omitted.]

Paralegal

[46] In Maso v. Martinez, 2015 ONSC 3467, a paralegal prepared a self-represented family law litigant’s answer, financial statement and case conference brief. The respondent litigant subsequently retained counsel. About one year later, he discovered that the paralegal worked with the applicant’s lawyer and, according to that lawyer’s website, assisted the lawyer with family law matters. In finding that the applicant’s lawyer had a disqualifying conflict of interest, Gray J. stated, at paras. 25-32:

There is no doubt that the respondent imparted confidential information to Ms. Castillo. Indeed, she drafted on his behalf his answer, his financial statement and a case conference brief. She could not do so unless she had confidential information. This is so even though the documents, at least to some extent, became public after they were filed.

The respondent swears that he discussed the entire background of his marriage and the causes of its break-up with Ms. Castillo, and he discussed his strategy in conducting the litigation with her. In her affidavit, Ms. Castillo does not deny this. She merely says she did not provide the respondent with any legal advice.

The only issue, in my view, is whether a reasonably informed member of the public would be satisfied that no use of any confidential information imparted to Ms. Castillo would or could occur, once the applicant became represented by Ms. Mazinani. The evidence discloses that Ms. Mazinani regularly uses Ms. Castillo for various purposes within her office, including paralegal services. The onus is on the applicant and Ms. Mazinani to demonstrate that no confidential information would or could be imparted, and that a reasonably informed person would be satisfied that that is the case.

In my view, the applicant and Ms. Mazinani have not demonstrated that there is no risk of any improper disclosure of confidential information, and that a reasonably informed person would be satisfied that that is the case.

According to Sopinka J. in Martin, supra, it is incumbent on a law firm who may come into possession of confidential information to demonstrate that it has policies and procedures in place that make it impossible, or at least highly unlikely, that this can occur. The law firm can do so through Chinese walls or other similar policies.

In this case, apart from the bald statement by Ms. Castillo that she has been instructed not to disclose anything, and her equally bald statement that she has not and will not disclose anything, no evidence of any policies and procedures on the part of Ms. Mazinani's law firm have been produced.

A similar undertaking or promise was given by a law clerk in Cartledge, supra. Lax J. held that that was not sufficient. In the case before me, it is not sufficient either.

Ms. Mazinani argues that Cartledge is distinguishable because the law clerk in that case was an employee who moved from one law firm to another. In this case, Ms. Castillo is an independent contractor who works for a number of law firms. In my view, the distinction is one without a difference. As a paralegal, she comes into possession of confidential information. If confidential information is imparted to her, a law firm that utilizes her services must ensure, in as formal a manner as possible, that it is impossible or at least highly unlikely that any confidential information she has will come into the law firm's possession.

Conclusion

[47] I am bound by the Ontario Court of Appeal’s decision in Hildinger. Its more flexible and case-specific approach to the application of MacDonald Estate is warranted given that, unlike a solicitor, non-legal staff (whether a receptionist, legal assistant, legal secretary, law clerk or paralegal) may perform a variety of roles and some may have little or no contact with clients and their confidential information while others may be a client’s primary point of contact with the law firm and have an in-depth knowledge of all aspects of a file: R. v. Le, 2001 ABQB 195, at para. 33. In this context, unlike the case in MacDonald Estate which involved a lawyer transferring to another law firm, there is no general principle about the nature of all non-legal staff members’ relationship with a client that could provide a basis for the inference that, in all cases, a court should infer that confidential information has been imparted by the client to a non-legal staff member and thereby place the “difficult burden” of demonstrating that no confidential information was imparted on the responding party.

[48] This conclusion accords with the policy goals identified in MacDonald Estate in respect of determining whether there is a disqualifying conflict of interest. It is also consistent with the approach adopted by the Law Society of Ontario in Rule 3.4-23 of the Rules of Professional Conduct, and its accompanying commentary, which recognizes that not all non-lawyer staff possess confidential information. It states:

Lawyer Due Diligence for non-lawyer staff

3.4-23 A transferring lawyer and the members of the new law firm shall exercise due diligence in ensuring that each member and employee of the lawyer's law firm, and all other persons whose services the lawyer or the law firm has retained

(a) complies with rules 3.4-17 to 3.4-23, and

(b) does not disclose confidential information of

(i) clients of the firm, or

(ii) any other law firm in which the person has worked.

Commentary

[1] This rule is intended to regulate lawyers who transfer between law firms. It also imposes a general duty on lawyers and law firms to exercise due diligence in the supervision of non-lawyer staff to ensure that they comply with the rule and with the duty not to disclose confidences of clients of the lawyer's firm and confidences of clients of other law firms in which the person has worked.

[2] Certain non-lawyer staff in a law firm routinely have full access to and work extensively on client files. As such, they may possess confidential information about the client. If these staff move from one law firm to another and the new firm acts for a client opposed in interest to the client on whose files the staff worked, unless measures are taken to screen the staff, it is reasonable to conclude that confidential information may be shared. It is the responsibility of the transferring lawyer and the members of the new law firm to ensure that staff who may have confidential information that if disclosed, may prejudice the interest of a client of the former firm, have no involvement with and no access to information relating to the relevant client of the new firm. [Emphasis added]

[49] I now turn to consider whether the Applicant has met the MacDonald Estate test and demonstrated that a "reasonably informed person would be satisfied that no use of confidential information would occur” as a result of Ms. Valente’s transfer to Ms. Road’s office.

[50] In respect of whether Ms. Valente received confidential information, the Respondent states:

(a) He often attended at Ms. Rayson’s office and saw Ms. Valente. Ms. Rayson had a small office. Ms. Valente sat at the main desk of the office. Ms. Rayson’s office was very close (a few feet) from the main desk. It appeared to him that Ms. Rayson would often discuss his file with Ms. Valente either talking to Ms. Valente from her office or attending at the main desk where Ms. Valente worked. On more than one occasion, Mr. Miret saw Ms. Rayson and Ms. Geller discuss his file in such a way that Ms. Valente could hear it at her desk.

(b) He observed Ms. Valente assisting Ms. Rayson with his file. Ms. Valente would find documents and print documents for Ms. Rayson and assist her with issues involving her computer. Based on his observations, Ms. Valente had full access to everything in his file.

(c) Ms. Valente received confidential information concerning a cohabitation agreement drafted by Ms. Rayson’s office involving the Respondent’s new partner.

(d) Ms. Valente received a number of confidential emails including emails from Mr. Radnoff, a law clerk at Mr. Radnoff’s office and from a family law valuation expert.

[51] Ms. Valente states:

(a) She has no formal training as a law clerk or legal assistant. After graduating from university she worked as a legal assistant in a real estate practice before working for Ms. Rayson.

(b) On April 1, 2021, Ms. Valente was hired by Ms. Rayson as a Legal Assistant. Her role was to provide administrative support to Ms. Rayson and to Ms. Geller, the Senior Law Clerk/Paralegal and Office Manager. Ms. Geller was Ms. Valente’s supervisor.

(c) When the Respondent retained Ms. Rayson in April or May, 2021, Ms. Valente was instructed to open his file, which consisted of opening his file in PCLaw and DivorceMate with his contact information, and saving a copy of his retainer agreement, client intake form and photo identification in the electronic file.

(d) Contrary to the Respondent’s allegations, the only work that she did for his file while she worked at Rayson Legal was administrative, namely, answering calls and informing the Respondent whether Ms. Rayson was available for a call or scheduling an appointment.

(e) The Respondent’s file was considered a “financial file” and Ms. Valente did not assist Ms. Rayson on substantive matters such as drafting or strategizing, not only because it was not a file of interest (because her preference was to be work on files that involved children) but also because she lacked the knowledge and expertise required to do so.

(f) The details of the Respondent’s file were not discussed with her by Ms. Rayson, Ms. Geller or the Respondent.

(g) When the Respondent attended the office, Ms. Valente’s only interaction was to get him when he arrived. Ms. Valente did not attend meetings with him. The Respondent generally attended the office in the early afternoon. As the office door was typically locked, Ms. Valente would let the Respondent into the office. He would then go into Ms. Rayson’s office and close the door. There were several times when Ms. Valente would be on her lunch break in the kitchen with the door closed.

(h) Ms. Valente’s desk was not “very close” to Ms. Rayson’s office. Rayson Legal consisted of two units combined into one. Ms. Rayson’s office was in one unit and Ms. Geller’s office was on the opposite side of the second unit. Ms. Valente’s desk was in the middle and in an open area. The door to Ms. Rayson’s office was around the corner from Ms. Valente’s desk. There were two walls separating Ms. Valente’s space from Ms. Rayson’s office. Ms. Valente states that she was unable to hear the Respondent’s conversation in Ms. Rayson’s office because of the barriers between that office and her desk (namely, two walls, a closed door). In addition she sometimes worked in Ms. Geller’s office, or in the kitchen, which were on the opposite side from Ms. Rayson’s office.

(i) Ms. Valente did not hear Ms. Rayson and the Respondent talking about this matter nor was she ever informed about anything discussed during their meetings.

(j) Ms. Rayson did not discuss the Respondent’s personal information or litigation strategy with Ms. Valente.

(k) On occasion, Ms. Valente was asked to assist in assembling materials for service on opposing counsel that had already been prepared by Ms. Rayson or Ms. Geller. She has no recollection of the content of these materials.

(l) In the summer of 2022, Mr. Radnoff met with Ms. Rayson at her office. The meetings were held behind closed doors. Ms. Valente is unaware of what was discussed and had no involvement with them.

(m) Once Mr. Radnoff’s law firm became co-counsel in for the Respondent in the family law litigation, Ms. Valente’s interactions with Mr. Radnoff’s office were mostly via email where she would send various precedent forms or upload materials to Caselines that had been previously served by their office. Ms. Valente also arranged appointments between Mr. Radnoff’s office and Ms. Rayson’s office. She would also send videoconference links from Caselines to Mr. Radnoff and to the Respondent. Ms. Valente was not present during these appointments or videoconferences. Following Mr. Radnoff’s retainer as co-counsel, most of the administrative matters that Ms. Valente performed were completed by his staff.

(n) On April 11, 2023, Ms. Rayson instructed Ms. Valente to close the Respondent’s file as he had retained another lawyer to represent him. There was no discussion about why this occurred. The file closing process consisted of putting the Respondent’s physical file in a banker’s box and uploading his electronic file onto a USB key. This process was done by electronically dragging the file onto the USB. Ms. Valente did not review either the electronic or paper file materials during this process.

(o) After completing the file closing process, Ms. Valente had no further involvement with the Respondent’s file except for receiving, on or about May 31, 2023, a copy of the Court’s Endorsement on a motion that had been heard.

(p) One of Ms. Valente’s administrative responsibilities was to file emails to the proper client account. Ms. Valente was copied on thousands of emails while working for Ms. Rayson and is unable to recall information provided in an email for a particular file, including the Respondent’s file. She did not review the emails beyond determining which file they were to be filed in. Ms. Valente was only copied on most of the emails. Emails sent directly to her related to administrative tasks such as uploading documents to Caselines or confirming scheduling.

(q) Ms. Valente denies the Respondent’s assertion that she received confidential information concerning his Cohabitation Agreement with his new partner. She recalls seeing the Cohabition Agreement only once as a result of being asked by Ms. Geller to scan it to the firm’s database and then place the paper copy into an envelope for filing. Ms. Valente has no recollection of its content.

(r) Ms. Valente has never met Mr. Shastri and has never discussed the Respondent’s case with him.

[52] On cross-examination Ms. Valente acknowledged that: (1) there were no restrictions to her access to the Respondent’s file while she worked for Ms. Rayson; (2) she sent or received several emails pertaining to the Respondent’s file; (3) she did not recall receiving emails or anything involving the Respondent’s cohabitation agreement while working for Ms. Rayson; (4) When the file was transferred from Ms. Rayson to Mr. Halpern, Ms. Valente transferred the Respondent’s electronic file onto a USB and put his paper file into a box; (5) on June 7, 2023, her first day working for Ms. Roads, Ms. Valente was copied on an email from Ms. Road in error. Ms. Valente was being trained by another employee and she did not read the email nor its attachment, nor did she receive any instructions from Ms. Road with respect to what to do with that email.

[53] Ms. Road states that an ethical screen was put into place immediately upon Ms. Valente’s commencement of work at her office. Ms. Road ensured that Ms.Valente had no access to the Applicant’s file, including having access locked from her computer. Any work to be done on the file, including billing and all correspondence, has been performed by Ms. Road. She states that Ms. Valente has had no involvement in this file at her office. Ms. Valente has no access to any of Ms. Road’s emails except for one email sent to Mr. Halpern which Ms. Valente was inadvertently copied on. Ms. Road has not discussed this case with Ms. Valente nor has Ms. Valente shared anything with her about the Respondent other than in relation to this motion.

[54] I find that a reasonably informed person would be satisfied that no use of confidential information would occur as a result of Ms. Valente’s move to Ms. Road’s office for the following reasons:

1. Ms. Valente was a junior clerical employee with no training as a law clerk whose duties were administrative. She reported to Ms. Geller who served as Ms. Rayson’s senior law clerk/paralegal. She worked as the firm’s receptionist. She answered the telephone and ordered process servers. She physically and electronically updated filing, opened and closed files, and otherwise provided administrative support to Ms. Rayson and Ms. Geller.

2. Unlike the situation in K. (M.S.), there is no suggestion that the Respondent had multiple, or any, conversations with Ms. Valente where he shared confidential information regarding his case with her. There is no dispute that the Respondent had limited verbal interaction with Ms. Valente. When he attended at Rayson Legal, her only verbal interaction was to greet him at the office entrance as that door was typically locked.

3. The Respondent’s assertion that he believed that he saw Ms. Valente, while at her desk, overhearing a conversation between Ms. Rayson and Ms. Geller, is entirely speculative as he gives an insufficient explanation for this belief. I accept Ms. Valente’s denial of this allegation and her evidence that she did not hear Ms. Rayson and the Respondent talking about this case. Ms. Valente did not participate in the Respondent’s meetings with Ms. Rayson or Ms. Geller which were held behind a closed door. Similarly, Ms. Valente did not participate in a meeting held by Ms. Rayson with Mr. Radnoff nor was she aware of what was discussed at that meeting.

4. The tentativeness of the Respondent’s suggestion that it “appeared” that Ms. Rayson discussed his file with Ms. Valente is weak and I prefer Ms. Valente’s straightforward evidence that: (1) neither Ms. Rayson, Ms. Geller nor the Respondent discussed the details of his case with her; (2) on occasion, she would be asked to assist in assembling materials, that had already been prepared by Ms. Rayson or Ms. Geller, for service on the Applicant; (3) on occasion, during the course of a meeting with the Respondent, Ms. Rayson would either come to Ms. Valente’s desk or call her and direct her to locate and print documents in electronic format that had been previously filed with the court. Ms. Valente states that she did not read these documents.

5. Ms. Valente received numerous emails regarding the Respondent’s case as she did for all of Ms. Rayson’s cases. Ms. Valente was copied on thousands of emails typically for the purpose of filing as she was required to file the emails to the proper client file. Ms. Valente sent emails to the Respondent which provided a link for him to sign documents in DocuSign, confirmed appointments/dates or that documents had been uploaded to Caselines. She did not review the substance of the documents.

6. Once the Respondent retained Mr. Halpern, Ms. Valente was instructed to close the file. There was no discussion about why the Respondent had retained new counsel. Ms. Valente placed the physical file in a banker’s box and uploaded the electronic file to a USB key. She did not review either the electronic or paper files during that process.

7. During employment with Ms. Road, Ms. Valente has been locked out of the Applicant’s file through Ms. Road’s server. She has obeyed Ms. Road’s instructions not to have any involvement with the Applicant’s file, with one exception which involved sending a receipt for payment of her account. Ms. Valente did see a copy of the Respondent’s Cohabitation Agreement with his new partner as a result of Ms. Geller asking her to scan the document, upload it to the firm’s electronic database and physically transfer the document into an envelope for courier delivery. She has no recollection of its contents.

8. Ms. Valente only worked about three months for Ms. Road during the summer of 2023.

Decision

[55] The Respondent’s motion an Order removing Tanya Road and Rahul Shastri as the lawyers of record for the Applicant wife and her sister Tanya Basso is dismissed.

[56] The Applicant shall deliver her costs submissions by July 3, 2024. The Respondent shall deliver his responding costs submissions by July 12, 2024. The Applicant may deliver reply costs submissions by July 19, 2024. All costs submissions to be no more than three pages in length excluding an outline of costs and any offers to settle.

Mr. Justice M.D. Faieta Date: June 24, 2024