This recent decision from the Superior Court of Justice clarifies the confusion for family law counsel in Ontario following the release of the conflicting decisions of the Ontario Court of Appeal in Berta v. Berta 2015 ONCA 918, and Forrester v. Dennis 2016 ONCA 214 regarding costs, and confirms the decision of Jackson v. Mayerle 2016 ONSC 1556 as the go to case for analysis of Rule 24 of the Family Law Rules.
This case was a long motion heard by Justice Ellen MacDonald in the Ontario Superior Court of Justice in Toronto. The Applicant wife, Rachelle Tauber, was seeking to have her husband’s lawyer removed as the solicitor of record for the Respondent husband in their matrimonial matter. Ms. Tauber alleged that retaining the husband’s lawyer created a conflict of interest as she had previously spoken with that lawyer regarding her matrimonial matter and was thinking of hiring him.
In June of 2009, Ms. Tauber contemplated changing lawyers. She already had counsel at the time, but her friend had recommended that she speak with another lawyer. The husband subsequently hired that lawyer five months after the lawyer’s conversation with Ms. Tauber. Ms. Tauber spoke with the husband’s lawyer on the phone for seven minutes regarding her matter. The husband’s lawyer and Ms. Tauber arranged a meeting for the following week; however Ms.Tauber cancelled the meeting and she decided that she would like to continue being represented by her existing lawyer. The husband’s lawyer did not record any notes of the conversation that took place between them, nor was there a file opened for Ms. Tauber. Ms. Tauber alleged that the conversation contained confidential information, while the husband’s lawyer denied same.
Justice MacDonald considered the following question in determining whether there was a conflict of interest:
Does the seven minute telephone call with Ms. Tauber place the husband’s lawyer in a conflict of interest when he was retained by Mr. Tauber five months later?
The leading case on this issue is MacDonald Estate v. Martin. The court in that case asked two questions in order to determine whether a conflict of interest can be established:
- Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand; and
- Is there a risk that it will be used to the prejudice of the client?
The second part of the test can only apply if the confidential information has actually been received by the lawyer. Although Ms. Tauber claimed that she had given confidential information to the husband’s lawyer, she was not able disclose to the court what that information was and why the information was confidential. There was no evidence submitted to demonstrate that there was an exchange of confidential information. Therefore, Justice MacDonald found that the test could not apply in this particular case. If there is no confidential information provided, then there is no risk of prejudice to the client. Justice MacDonald held that the husband’s lawyer can continue to represent Mr.Tauber. Solicitor-client privilege could not be established in this case. Justice MacDonald found that a minimal amount of contact, such as a telephone call with a prospective lawyer, should not disqualify that person’s spouse from being able to retain that lawyer later on.
The motion was dismissed with costs.