Date: 20000411
Docket: T-344-00
Between:
DANIEL J. McDONALD
Applicant
AND
THE GREAT LAKES PILOTAGE AUTHORITY and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY:
[1] This is a motion by the Great Lakes Pilotage Authority (hereinafter the Authority) for an order declaring the applicant's solicitor of record and his firm disqualified from acting on behalf of the applicant by reason of a conflict of interest.
[2] As indicated by the Notice of Motion, the grounds are:
| 6. That the law firm of Langlois Gaudreau O'Connor, of which the Applicant's solicitor of record is a member, acts as general counsel for the Corporation of Professional Great Lakes Pilots (the "Corporation"). |
| 7. That the Corporation is contractually bound to cooperate fully with the Authority in the defence of the present proceedings. |
| 8. That in its capacity as counsel to the Corporation, the firm of Langlois Gaudreau O'Connor has access to information of a privileged and/or confidential nature shared between the Corporation, the Authority and/or their respective counsel in the expectation, intention and belief that their common interest creates a shared privilege, which may not be waived unilaterally by the Corporation. |
| 9. More particularly, but without restricting the generality of the foregoing, the Authority has had a privileged discussion relating to the matters at issue herein with Mr. Jean Grégoire, a member of Langlois Gaudreau O'Connor acting in his capacity as general counsel to the Corporation, which the Authority had a right to expect to be confidential. |
| 10. The firm of Langlois Gaudreau O'Connor and Mr. John O'Connor are in a conflict of interest and may not continue to act as solicitors for the Applicant. |
Context
[3] On February 24, 2000 the applicant filed an application for judicial review of a decision of the Authority withdrawing his name from an eligibility list. The effect of this withdrawal was ultimately to prevent the applicant from obtaining a pilot license and thus becoming a pilot.
[4] In early February, 2000, a colleague of the applicant's solicitor, Mr. Grégoire, offered to contact an old acquaintance working with the Authority (Tito De Concilys) on his behalf to inquiry about the general process for hiring pilots. This information seemed to the applicant's solicitor to be a useful means of assessing the applicant's possible remedies and neither the applicant's solicitor (Mr. O'Connor) nor his colleague was in possession of this information.
[5] Accordingly, on February 17, 2000 Mr. Grégoire placed a telephone call to Mr. De Concilys.
[6] It is this conversation that is at the origin and the heart of the present motion.
[7] In fact, it is important to realize that it is not so much what was said during this conversation as the context perceived by Mr. De Concilys that led the Authority to think there was a conflict of interest.
[8] However, before looking at what Mr. De Concilys perceived of this conversation, it is necessary to note the following factual elements.
[9] As I understand it, there is no real issue between the parties as to the fact that during this conversation, Mr. Grégoire did not receive or solicit any confidential information. It appears as well that the applicant's situation was not raised in any way whatsoever during this conversation.
[10] In this regard, the following extracts from Mr. Grégoire's affidavit, submitted in opposition to this motion, inform us that:
[Translation]
| 17. ... At no time did I consider that our conversation might be privileged and be subject to solicitor-client privilege; |
| 18. In fact, the discussion with Mr. De Concilys was of a general nature, since I was interested only in the applicable general process for hiring pilots; |
...
| 20. I neither solicited nor received from Mr. De Concilys any information that is not of a public nature and Mr. De Concilys' affidavit does not contain any allegation that information of a privileged nature was imparted on this occasion. I did not solicit any information or confidential fact in relation to any case whatsoever and Mr. De Concilys did not communicate to me any information or confidential fact in relation to any case whatsoever. Our conversation was in fact limited to the general process in relation to the hiring of pilots on the Great Lakes. The Authority publishes from time to time in the newspapers notices soliciting applications for the position of pilot on the Great Lakes. The information I solicited from Mr. De Concilys concerned this process, from the publication of notices to the hiring of the pilots; |
...
| 26. During this conversation, I did not explain to Mr. De Concilys that we had been consulted by Mr. McDonald. In fact, the information solicited and received was general in nature and I did not know whether my partner, Mr. O'Connor, would recommend to Mr. McDonald that he take legal proceedings against the Authority. I was unable to disclose to the Authority that Mr. McDonald was planning to sue them since I was totally unaware of whether such a proceeding might be taken; |
| 27. During my conversation with Mr. De Concilys, I was not apprised of any confidential fact concerning Mr. McDonald or anyone else. Thus, there cannot be any risk that confidential information was imparted to anyone whatsoever, since I neither received nor solicited such information; |
| 28. More particularly, I did not solicit from Mr. De Concilys or receive from him any information whatsoever concerning the names of the individuals involved, the nature, the content or the results of the examinations or interviews, whether held in or before 1999; |
[11] In support of its position, the Authority cites a collective agreement, and more particularly article 10.07 of the agreement between the Authority, the Corporation of Professional Great Lakes Pilots (hereinafter the Corporation) and the Canadian Merchant Service Guild (hereinafter the Guild).
[12] The parties appeared not to agree on the role played by these entities under the Agreement. From the limited evidence submitted, I infer that the Authority acts as an employer while the Corporation and the Guild are present to represent the interests of the employees, the pilots. There seems to be some relationship between the Corporation and the Guild, but this relationship was not clearly defined.
[13] Article 10.07 of the Agreement reads as follows:
| 10.07 In the event of any action at law or any action under the provisions of the Pilotage Act, against the Authority or the Corporation resulting from the refusal to grant a licence, as a result of an applicant failing to pass the examination, both parties shall cooperate fully in the defence of such action. |
[14] From the evidence submitted by both sides, and more particularly the affidavit of Mr. Grégoire, I conclude that he and the applicant's solicitor and his firm at no relevant time acted on behalf of the Corporation. This firm and its solicitors acted and are acting from time to time only on behalf of the Guild.
[15] The following extracts from Mr. De Concilys' affidavit give us some indication of what he assumed during this conversation:
| 7. Had Mr. Grégoire said that his firm was acting or considering acting on behalf of Mr. McDonald, I would have refused to answer his questions. |
| 8. As it was, I assumed Mr. Grégoire's firm was, as usual, acting on behalf of the Corporation and/or the Guild and provided him with the information he sought regarding all phases of the pilot hiring process, past and present, for District No. 2. |
| 9. I was aware at the time that Mr. McDonald was dissatisfied with the decision we had made concerning him and I assumed Mr. Grégoire's call was in relation to this matter. |
| 10. When I spoke with Mr. Grégoire, I assumed and intended that, if Mr. McDonald were to take action in the Courts, the Corporation and the Guild would be bound to co-operate with the Authority. I therefore spoke to Mr. Grégoire as the solicitor for the Corporation and/or the Guild in this spirit of co-operation. [paragraphs 7 to 10] |
Analysis
[16] In my opinion, MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 (hereinafter the MacDonald decision) constitutes the leading decision on conflict of interest among lawyers. In this sense, the judgments cited by the Authority are simply particular cases directly or indirectly applying the Supreme Court's teaching.
[17] From my reading of this judgment, the potential imparting of confidential information by the client in his initial relationship with the solicitor is the basic element that must be looked for in analyzing any conflict that may be present when, subsequently, the solicitor comes to act in opposition to that client.
[18] In MacDonald, at page 1260, the Court asks the question that is to be resolved in that case and indicates the path to follow in resolving it, in the following words:
| ... Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?... |
| In answering the first question, the court is confronted with a dilemma. In order to explore the matter in depth may require the very confidential information for which protection is sought to be revealed. This would have the effect of defeating the whole purpose of the application. American courts have solved this dilemma by means of the "substantial relationship" test. Once a "substantial relationship" is shown, there is an irrebuttable presumption that confidential information was imparted to the lawyer. In my opinion, this test is too rigid. There may be cases in which it is established beyond any reasonable doubt that no confidential information relevant to the current matter was disclosed. One example is where the applicant client admits on cross-examination that this is the case. This would not avail in the face of an irrebuttable presumption. In my opinion, 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. [Emphasis added] |
[19] Applied to the case at bar, we are led by these guidelines to ask ourselves, first, whether it should be considered that there was a solicitor-client relationship between Mr. Grégoire and Mr. De Concilys, i.e. the Authority.
[20] Only Mr. De Concilys' perception and his application of article 10.07 can lead us to that conclusion. Indeed, we know from the evidence that Mr. Grégoire has never acted on behalf of the Corporation but that his firm acts from time to time on behalf of the Guild. Furthermore, although the guild is a signatory to the Agreement, article 10.07 thereof and the spirit of cooperation it envisages is engaged only between the Authority and the Corporation, once litigation is commenced. Oddly enough, article 10.07 does not contemplate the participation of the Guild.
[21] In fact, then, it must be concluded that Mr. De Concilys was wrong in considering that article 10.07 made Mr. Grégoire his de facto solicitor in some way.
[22] The first factor in the initial question asked by the Supreme Court in MacDonald is therefore absent. In principle, this would be sufficient to dispose of this motion.
[23] However, even if one adopts for discussion purposes Mr. De Concilys' perception, i.e. that during this conversation of February 17 he was entitled to consider that Mr. Grégoire was acting for the same side as the Authority, it is hard to see how the content of this conversation bears some relationship to the subject matter of this litigation.
[24] As mentioned earlier, the conversation dealt only with the hiring process, and nothing else. No particulars concerning the applicant's case were raised. Even if one could see some intersection between this conversation and the present litigation, I am not fully persuaded that it is appropriate to speak of a "sufficient relationship".
[25] However, notwithstanding the preceding conclusion, let us suppose for purposes of discussion that this sufficient relationship is present and let us assume as well that all of the other conditions for the application of article 10.07 are fulfilled (that is, that as of February 17 litigation was under way and that this litigation concerns the circumstances contemplated by article 10.07). If that is admitted, then the presumption that confidential information was imparted to Mr. Grégoire during the conversation is established in favour of the Authority.
[26] This presumption is not irrebuttable, however. It simply throws the ball into the court of the applicant's solicitors, who may discharge this heavy burden, to use the Supreme Court's words, by showing that a reasonably informed member of the public would be persuaded that no confidential information was imparted to them on February 17, 2000.
[27] If we were to proceed to this stage, and as a ratio decidendi I do not think so, I am of the view that through Mr. Grégoire's affidavit, and more especially through the extracts cited earlier -- which must be viewed as uncontradicted evidence -- the applicant has discharged this burden of proof.
[28] Based on this reasoning, we consider each of the grounds cited earlier in support of this motion (see paragraph 2) to be without foundation.
[29] At the hearing of the motion, counsel for the Authority insisted that Mr. De Concilys as well as any pilot who might be led to swear an affidavit could be discomfited, and take a dim view of the fact that the applicant is retaining his present solicitors.
[30] For the preceding reasons, this perception by itself could not, in my opinion, constitute a conflict of interest within the meaning of the MacDonald decision. But more particularly, it has not been positively established that Mr. De Concilys was intending to make an affidavit in the context of the merits of this case. This conclusion applies to any other pilot. Furthermore, even if Mr. De Concilys were to make such an affidavit, there is no assurance that he will be cross-examined. Even if he were to be cross-examined, the fact that Mr. Grégoire had a general conversation with him about the pilot hiring process could not reasonably create a situation of such unease during the cross-examination that it must now be concluded that it is necessary to order the withdrawal of the applicant's present solicitors.
[31] For all these reasons, this motion by the respondent Authority to have the applicant's solicitor of record and his firm declared in a conflict of interest in this action and consequently disqualified from continuing to act on the applicant's behalf shall be dismissed, with costs to the applicant in any event.
| Richard Morneau |
| Prothonotary |
MONTRÉAL, QUEBEC
April 11, 2000
Certified true translation
Martine Brunet, LL.B.
Federal Court of Canada
Trial Division
Date: 20000411
Docket: T-344-00
Between:
DANIEL J. McDONALD
Applicant
AND
THE GREAT LAKES PILOTAGE AUTHORITY and
THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO.: T-344-00 |
| STYLE: DANIEL J. McDONALD |
Applicant
| AND |
| THE GREAT LAKES PILOTAGE AUTHORITY |
| and |
| THE ATTORNEY GENERAL OF CANADA |
Respondents
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: April 3, 2000 |
REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY
DATED: April 11, 2000
APPEARANCES:
John G. O'Connor for the applicant
| Mireille A. Tabib for the respondent The Great Lakes Pilotage Authority |
SOLICITORS OF RECORD:
Langlois Gaudreau O'Connor for the applicant
Québec, Quebec
Morris Rosenberg for the Attorney General of Canada
Deputy Attorney General of Canada
Stikeman, Elliott for the respondent The Great Lakes Pilotage Montréal, Quebec Authority
Date: 20000411
Docket: T-344-00
MONTRÉAL, QUEBEC, THE 11TH DAY OF APRIL, 2000
Present: Mr. RICHARD MORNEAU, PROTHONOTARY
Between:
DANIEL J. McDONALD
Applicant
AND
THE GREAT LAKES PILOTAGE AUTHORITY and
THE ATTORNEY GENERAL OF CANADA
Respondents
ORDER
This motion by the respondent Authority to have the applicant's solicitor of record and his firm declared in a conflict of interest in this action and consequently disqualified from continuing to act on the applicant's behalf shall be dismissed, with costs to the applicant in any event.
| Richard Morneau |
| Prothonotary |
Certified true translation
Martine Brunet, LL.B.