Case Report – Contact with defendant’s former employee not grounds to disqualify plaintiff counsel

13 Mar

On February 24th, the Ontario Superior Court of Justice declined to disqualify plaintiff counsel for its contact with a former employee of the defendant who the defendant alleged had received related confidential information in the context of a solicitor-client relationship while employed.

Plaintiff counsel represented various adult entertainment establishments in an action against the Toronto Police Services Board for matters arising out of a large scale investigation that was led by O’Mara. It claimed the TPSB was vicariously liable for O’Mara’s conduct.

In 2001, right around his retirement, O’Mara met with lawyers for the TPSB to discuss his evidence. Sometime later O’Mara contacted plaintiff counsel about providing them with private investigation services. In 2003 plaintiff counsel retained O’Mara on two files unrelated to the action against TPSB in which he prepared affidavits. It’s not clear why, but the plaintiffs produced the affidavits in the TPSB action, at which point the defendants objected to plaintiff counsel’s contact with O’Mara.

The Court held that disqualification was not justified because O’Mara did not receive confidential information attributable to a solicitor-client relationship. In doing so, it declined to apply a rebuttable presumption that such information was communicated because O’Mara did not meet with the TPSB as a client and, unlike in the Court of Appeal’s recent Humber v. Stewart decision, was a neither a potential expert witness nor responsible for giving instructions to counsel as a member of management. It said:

In light of the above, there is no reason to consider that the communications between counsel and O’Mara were other than an ordinary interview with a potential witness to obtain information from the potential witness. The fact that the potential witness was still, at the time, employed with the TPS does not change the nature of the communications. They were part of an interview with a potential witness, and not shown to be of a kind to make it reasonably likely that confidential information would be imparted to Mr. O’Mara.

In obiter, the Court also held that the relationship between O’Mara and plaintiff counsel did not support  a presumption that any information within O’Mara’s knowledge would likely have be misused.

728654 Ontario Inc. (Locomotion Tavern) v. Ontario (Attorney General), 2010 ONSC 1184 (CanLII).

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