In Hanlan v. Wilson, the Plaintiff was a passenger injured in a hit and run accident, and consequently advanced an ICBC claim.
Both the Plaintiff and the driver of the vehicle, who was the common law spouse of the Plaintiff, retained the same lawyer to represent them, and met with that lawyer on several occasions. At one point when all three were present, counsel explained that the passenger should commence legal proceedings, naming John Doe (as the unidentified driver) and the driver of the vehicle as Defendants. As such, counsel advised the driver of the vehicle that she would need to retain different counsel.
A couple of weeks later, in the Notice of Civil Claim commencing legal proceedings, Plaintiff’s counsel named John Doe, ICBC (as a nominal Defendant), and the driver of the vehicle that the Plaintiff was in. At a later point in time, the driver of the vehicle retained counsel, who filed a Notice of Civil Claim on behalf of the driver.
ICBC’S lawyer informed counsel for the passenger that he objected to him conducting an examination for discovery of the driver of the vehicle, as there was a conflict of interest. Counsel for the passenger did not agree, which necessitated a court application by ICBC’S lawyer to enjoin Plaintiff’s counsel from continuing to act on behalf of the Plaintiff on the basis that he was in a conflict of interest.
The Court cited the Supreme Court of Canada decision in MacDonald Estate, the leading authority on the issue of disqualification of counsel based on previous client representation, noting that the general test to be applied is whether a reasonably informed person would be satisfied that no use of confidential information would occur. Factors to consider would be whether or not the lawyer received confidential information attributable to a solicitor client relationship and, if so, if such information would be prejudicial to the client’s interests.
The Court also commented that there were two competing interests in the case at bar, namely the confidence of the public in the integrity of the legal profession and the administration of justice, and also the ability of a litigant to retain counsel of their choosing.
Counsel representing the Plaintiff’s lawyer at the application argued that the Court could not infer that confidential information was received, as both the driver and passenger had both previously discussed the case, and were both present when the driver of the vehicle discussed the case with counsel for the Plaintiff. The Court would not accede to this argument, however, noting that there was a heavy burden of establishing that no confidential information was imparted, and that such a burden was not met in the case.
As a result, the Court disqualified counsel from acting on behalf of the Plaintiff as against the driver of the vehicle that the Plaintiff was a passenger in.
[29] Given the totality of the circumstances present here, I am not satisfied counsel has discharged the heavy burden of establishing that no information was imparted, which could be relevant, now that Mr. Legh is clearly in an adversarial position against Ms. Wilson with respect to the same subject matter that he was retained on.
[31] I am of the view that is especially significant where, as here, as I have mentioned, Mr. Legh has filed a claim alleging Ms. Wilson contributed or caused the accident. This clearly raises the distinct possibility that Mr. Legh will be placed in the position of having to cross-examine his former client on the same matter in which he once represented her.
[33] Again, while I readily appreciate that in the present case Mr. Legh discontinued acting for Ms. Wilson in her claim for damages before filing a claim naming her as a defendant as a result of the same accident, I am satisfied that by obtaining information about the circumstances of the motor vehicle accident and her claim, Mr. Legh did receive confidential information from Ms. Wilson. The fact that Mr. Hanlan was present when these confidential discussions took place does not alter the fact Ms. Wilson imparted confidential information to Mr. Legh, who now acts against her. It is the confidential trust relationship established between Mr. Legh and Ms. Wilson which is the fundamental principle which must be protected.
[35] In my view, a reasonably informed member of the public, aware of all the circumstances in this case, would not be satisfied that no confidential information was imparted which could be relevant.
[41] In conclusion, as I have found that Mr. Legh has not discharged the heavy burden of satisfying the court that no relevant confidential information was imported, coupled with the fact that the retainers are clearly sufficiently related to the same subject matter, Mr. Legh is in a conflict of interest that precludes him from acting further for Mr. Hanlan.
[42] In these circumstances, as the court found in MacDonald Estate and our Court of Appeal in Rosin v. McPhail, disqualification is automatic. As a result, the application is allowed and I direct that Mr. Legh, and his firm, be removed as counsel of record for the plaintiff Mr. Hanlan.
