Ontario court rejects motion to disqualify counsel in proceedings arising from medical care action

The Ontario Superior Court of Justice recently considered whether a firm could act for a defendant when one of its lawyers generally discussed his potential retention as an expert witness for the plaintiff relating to a previous civil trial.

In Sacks v. Embury, 2021 ONSC 2822, the issue in the original action pertained to the medical treatment of one of the plaintiffs. In the present action, the plaintiffs sought damages from their counsel based on how their counsel had represented them in the original action.

The plaintiffs sought to disqualify Adair Goldblatt Bieber LLP (AGB) from representing the defendants in the present action. The plaintiffs argued that AGB possessed confidential information attributable to the solicitor-client relationship between the plaintiffs and the plaintiffs’ counsel, Falconeri Rumble Harrison LLP (FRH), following a discussion participated in by Mr. Adair, Mr. Falconeri and Mr. Rumble.

In April 2019, Adair was at the offices of FRH to discuss an unrelated legal matter in which Adair was retained to provide an expert opinion in a legal malpractice action involving FRH. Adair was asked whether the fact that Mr. Bieber, Adair’s partner at AGB, was acting on behalf of LawPro would interfere with Adair’s ability to provide opinions for FRH in legal malpractice actions, to which Adair replied that it would not.

Falconeri then began to discuss a case in his office relating to a possible legal malpractice claim against a lawyer based on the lawyer’s involvement in a medical malpractice action. Adair indicated that he would be open to offering an opinion in the future if he was asked and provided with enough information.

The Superior Court of Justice of Ontario dismissed the motion to prevent AGB from representing the defendants in the present action, finding that this was not a proper case that justified granting the extreme remedy of disqualifying counsel. The court noted that it could only interfere with the litigant’s right to choose counsel in very clear cases, and this situation could not be considered a very clear case.

The court said that the plaintiffs failed to meet their burden to show that Adair received confidential information attributable to a solicitor-client relationship to a degree sufficient for the court to disqualify counsel. The court said this was because the discussion that occurred was short, general and limited to the question of whether Adair would be willing to offer FRH an opinion regarding the way the plaintiffs’ case was handled. The court noted that the discussion took place at the end of the meeting, involved no specific information about communications between the plaintiffs and their counsel and refrained from meaningfully discussing trial tactics.

Affidavits of Falconeri and Rumble both listed the topics they discussed with Adair during the meeting. The topics included the case’s general facts, a settlement offer, advice given by the plaintiffs’ counsel relating to the settlement offer, the decision to utilize a jury trial and the nature of the standard of care expected of someone in the position of the plaintiffs’ counsel. The court determined that such information was generic.