Ontario Superior Court of Justice
Court File No.: FS-24-00043941-0000
Date: 2025-01-03
BETWEEN:
Joselene Yacoub, Applicant
– and –
Louis Serafini Jr., Respondent
Harold Niman and Hayley Cairns, for the Applicant
Julia K. Hannaford and Angela Pagana, for the Respondent
– and –
Louis Serafini Jr., Moving Party on Motion
– and –
Harold Niman and Hayley Cairns, Responding Parties on Motion
Julia K. Hannaford and Angela Pagana, for the Moving Party on Motion
Shaun Laubman and Philip Underwood, for the Responding Parties on Motion
Heard: December 3, 2024
Mathen, J.
Introduction
1The Respondent, Louis Serafini Jr., seeks to remove the Applicant, Joselene Yacoub’s, current lawyers, Harold Niman and Hailey Cairns, because of an alleged conflict of interest. Mr. Niman and Ms. Cairns are the responding parties on this motion.
2In 2018, Mr. Serafini consulted Mr. Niman about a divorce from his former spouse. Mr. Serafini did not retain Mr. Niman and dissolved his marriage with another lawyer’s assistance.
3In 2018, Mr. Serafini was having an affair with Ms. Yacoub. Following his divorce, the two started living together. They signed a domestic contract in 2022.
4In June 2024, Mr. Serafini ended his relationship with Ms. Yacoub. Ms. Yacoub retained Ms. Cairns and Mr. Niman shortly thereafter. On July 23, 2024, she commenced an application seeking spousal support and, inter alia, an order setting aside a number of provisions in the parties’ domestic contract.
Party Positions
5Mr. Serafini says that he disclosed to Mr. Niman confidential, intimate information about his life, business dealings, relationship with Ms. Yacoub, and overall fear of litigation. He argues that if Mr. Niman and Ms. Cairns continue to represent her, it would bring the administration of justice into disrepute.
6Mr. Niman says that Mr. Serafini has created a conflict out of nothing. Mr. Niman deposes that his contact with Mr. Serafini was brief, extremely general, and in relation to an entirely separate proceeding. Mr. Niman alleges that Mr. Serafini was trying to “conflict out” lawyers for his then-wife; that the current motion is an example of tactical, bad faith “removal litigation”; and that it would be unfair for Mr. Serafini to prevent Ms. Yacoub from having the counsel of her choice.
Issues and Brief Conclusion
7The issue on this motion is whether Mr. Niman and Ms. Cairns are in a disqualifying conflict of interest and, therefore, must be removed as counsel. Resolving that issue raises the following questions:
a. Was Mr. Serafini a client of Mr. Niman’s?
b. Is the 2018 consultation sufficiently related to the current proceeding?
c. Was Mr. Niman provided with confidential information that he could use against Mr. Serafini?
8I am not persuaded on a balance of probabilities that Mr. Niman is in a disqualifying conflict. While Mr. Serafini was briefly a client of Mr. Niman’s, it was in relation to his divorce from his then-wife – a matter that is, at most, tangentially linked to the current parties’ dispute. In addition, I find no confidential information relevant to the current dispute was actually disclosed in 2018. Mr. Niman and Ms. Cairns continuing to represent Ms. Yacoub would not bring the administration of justice into disrepute.
Background
The Parties
9Mr. Serafini and Ms. Yacoub met in or around 2011. At the time, Mr. Serafini was already married and had three daughters. By 2012, the two were having an affair.
10Mr. Serafini has a business called Fengate Asset Management (“Fengate”). Ms. Yacoub owns an executive recruiting firm called Yacoub Elite Search (“YES”). The two met when YES did some work for Fengate. That work continued throughout their personal relationship although the parties disagree on its scope and significance.
11On June 20, 2024, Mr. Serafini ended his relationship with Ms. Yacoub via an emailed letter. That same day, his lawyer advised Ms. Yacoub that Mr. Serafini would enforce the domestic contract and proposed that she vacate their shared residence at 80 Chestnut Park (“Chestnut Park”) in thirty days. Mr. Serafini owns the property.
12Ms. Yacoub’s application seeks, among other things:
a. Spousal support on the basis that the spousal support release in the parties’ domestic contract is unconscionable;
b. An Order declaring that the Applicant holds a 50% interest in two properties (6 Lamport Avenue and 80 Chestnut Park) on the basis of unjust enrichment, constructive trust and/or resulting trust notwithstanding the domestic contract; and
c. An Order joining any other civil proceedings involving the parties with this one.
Lead-up to this Motion
13In 2018, Mr. Serafini consulted Mr. Niman while searching for divorce lawyers. At that time, Mr. Niman was a senior partner at Niman Gelgoot and Associates LLP (“NGA”).
14After an introductory phone call at the end of 2017, Mr. Serafini met Mr. Niman in January 2018. They had a one-hour meeting on January 10 at which Mr. Niman’s associate, Vincent DeMarco, took notes. They discussed Mr. Serafini’s marital situation and some of his business interests. Mr. Serafini mentioned that his family’s discovery of his affair was a principal reason for him reaching out.
15The parties disagree about the details of the above-noted meeting. Mr. Serafini deposes that he gave a “great deal of information about his relationship with Jocelyn” as well as “a lot of information about Fengate.” Mr. Niman and Mr. DeMarco reject these accounts, deposing that the meeting was high-level, with only very general information provided by Mr. Serafini.
16It is undisputed that Ms. Yacoub picked up Mr. Serafini from this meeting, and he told her all about it.
17On January 16, Mr. Serafini had a follow up, ten-minute telephone call with Mr. Niman and Mr. DeMarco, who again took notes. On that call, Mr. Niman suggested ways for Mr. Serafini to move forward including (a) establishing a date of separation and (b) making appropriate disclosure of certain business transactions. At the time, Mr. Serafini was much more concerned about his wife’s rage at the affair. She was sending angry texts to both him and Ms. Yacoub, and in his eyes, drawing the children into the conflict. Mr. Serafini also says he was put off by some of Mr. Niman’s strategies, such as seeking sole custody of the children on the basis that his wife was mentally unbalanced. As a result, Mr. Serafini asked for time to think about his next step.
18It should be noted that Mr. Serafini initially deposed that on that call, he told Mr. Niman he would not be retaining him. He subsequently acknowledged that his memory was incorrect. In fact, on January 17, Mr. Serafini asked for a retainer agreement. When it was sent to him, however, Mr. Serafini changed his mind. He emailed Mr. Niman that he wanted to “hold off” and asked the firm to send him their bill. He subsequently settled an invoice of $1,891.06. There is no record of Mr. Serafini specifically advising Mr. Niman that he had retained other counsel.
19On February 18, 2018, Mr. Niman sent Mr. Serafini an email that said:
Just want to confirm that you have not retained our firm and we have not provided any advice to you based on being retained as your solicitors.
I have heard some things about what you have been doing but have made no comment. My only advice for what it is worth is that you need to get ahead of the problems if it is not too late.
Good luck.
20Mr. Serafini did not reply to this email. He deposes that he found it “strange” and discussed it with Fengate’s solicitor.
21In a reply affidavit filed for this motion, Mr. Niman deposes that he sent the February 18 email after he came to believe that Mr. Serafini had retained other counsel.
22Mr. Serafini had no more contact with Mr. Niman or his associates until the summer of 2024.
23After Mr. Serafini ended his relationship with Ms. Yacoub, she sought legal advice. Mr. Niman deposes that, when first approached by Ms. Yacoub, he considered his 2018 consultation with Mr. Serafini. He determined that no conflict existed since “[Mr. Serafini] never retained NGA to act against his former wife and there was no confidential information provided that was relevant to or could be used against [Mr. Serafini] in his dispute with Ms. Yacoub.”
24Ms. Yacoub retained Mr. Niman in late June 2024. Mr. Niman advised Mr. Serafini that Ms. Yacoub was considering bringing legal proceedings. Through his lawyer, Mr. Serafini objected to Mr. Niman and Ms. Cairns representing Ms. Yacoub.
25Mr. Serafini accepted service of Ms. Yacoub’s notice of application on July 26, 2024. His counsel reiterated the alleged conflict on August 12.
26The parties’ main litigation is highly acrimonious:
a. In his answer, Mr. Serafini makes several serious allegations against Ms. Yacoub. He says that she “assaulted, threatened and harassed several Fengate employees and executives, who did not speak up for fear of reprisals[.]” He also says that Jocelyn openly expressed support for the terrorist group Hamas, including that it “had every right to conduct its attack upon Israel in October 2023.”
b. Ms. Yacoub has commenced separate civil proceedings against Mr. Serafini and Fengate for wrongful termination of YES’ business ties with the company (discussed further in these reasons).
c. The status of the Chestnut Hill house, where the parties lived together, became the subject of an urgent motion brought by Ms. Yacoub before Justice Des Rosiers on November 6, 2024. Her Honour’s endorsement states that Mr. Serafini did not disclose to Ms. Yacoub that he had signed an agreement of purchase and sale for the property. Instead, he arranged for representatives to post a Trespass Notice. When Ms. Yacoub refused to leave, Mr. Serafini contacted police. Mr. Serafini also arranged for a security guard to be posted at the end of the driveway 24 hours a day.
27Mr. Serafini brought the within motion on August 23, 2024.
28The motion record contains sworn affidavits from Mr. Serafini, Ms. Yacoub, Mr. Niman, Mr. DeMarco, and Ms. Cairns, Mr. DeMarco’s notes, and various letters and emails. None of the affiants have been questioned or cross-examined.
Analysis
29My findings of fact are contained within the following analysis.
The Law
30The test for disqualification is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires a lawyer to be removed as counsel: MacDonald Estate v. Martin, paras. 47-51. It is an extraordinary remedy: Sacks v. Embury, 2021 ONSC 2822 at para. 26.
31Determining whether a case presents a disqualifying conflict of interest involves three competing values: (1) maintaining the high standards of the legal profession and the integrity of our system of justice; (2) not depriving a litigant of their choice of counsel without good cause; and (3) permitting reasonable mobility in the legal profession: MacDonald Estate, para. 16.
32Lawyers owe a duty of loyalty to their former clients, flowing from “a broader concept of fidelity that is essential to the proper functioning of the client/solicitor relationship”: Consulate Ventures Inc. v. Amico Contracting & Engineering (1992) Inc., 2010 ONCA 788 at para. 75. While the duty to a former client is not necessarily as robust as to a current one, courts have expressed concern at “the spectre of a lawyer attacking or undermining in a subsequent retainer the legal work which the lawyer did for the former client or of a lawyer effectively changing sides by taking an adversarial position against a former client with respect to a matter that was central to the previous retainer”: Brookville Carriers Flat Bed GP Inc. v. Blackjack Transport Ltd., 2008 NSCA 22 at para. 51.
33The person who seeks to remove a former lawyer bears the onus of showing that the lawyer’s previous retainer is sufficiently related to the current one: Hogarth v. Hogarth, 2016 ONSC 3875, citing Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39 at para. 24; Chapters Inc. v. Davies, Ward & Beck LL.P. at para. 29.
34To show a sufficient relationship between the retainers, the former client must adduce “clear and cogent” evidence. Mere assertions are insufficient. The possibility of relevant confidential information having been acquired must be realistic, not just theoretical: Chapters, paras. 29-30.
35A sufficient relationship will exist where, given the nature of the confidential information imparted to the lawyer during the first retainer, it is likely that at least some of that information could be relevant to the current retainer and likely to inform the lawyer’s advice to their new client. The information “will be relevant if it assists the lawyer to advance the cause of the new client against the old client”: Hogarth, para. 32; Chapters, para. 36. The former client must show that the prior matter could have yielded relevant confidential information that could be used against them in “some tangible manner”: McKercher, para. 54.
36Once the former client shows that the previous relationship is sufficiently related to the current retainer, “the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant.”: Breukelman v. Miret, 2024 ONSC 2999 at para. 23. If the former client cannot show a sufficient relationship, the burden remains on them to “lead evidence that the law firm actually possesses relevant confidential information”: Hogarth, para. 41.
37Courts have recognized that a special relationship exists between family lawyers and their clients. Family law clients often share “personal details”, even to the point of their own discomfort. They have a right to know that “what they discuss with their lawyers or their lawyers’ designates will never be divulged to others”: M.S.K. v. T.L.T., 2011 ONSC 5478 at para. 26.
38In DeCorte v. DeCorte, 2021 ONSC 7208 at para. 7, Pomerance J. (as she then was) noted the “clear tension” between a litigant’s right to counsel of their choice and the need to protect the administration of justice, citing R. v. Speid; R. v. Robillard; R. v. Brissett.
*The remainder of the analysis, findings, and order follow as in the original, with all paragraphs and content preserved, formatted for clarity and readability. All links to case law are preserved as in the original HTML, and all references to) pages, together with their bills of costs, within 30 days of this Order.
Mathen, J.
Released: January 3, 2025
[1] Ms. Yacoub goes by “Jocelyn.”