Date: 20060113
Docket: T-989-86
Citation: 2006 FC 27
BETWEEN:
EUGENE HOULE, HENRY QUINNEY, FINLAY MOSES,
NOAH CARDINAL, EMMA GLADUE, ALEX REDCROW, ALEXWHISKEYJACK, JOHN SHIRT AND EDWIN QUINNEY
In their own behalf and on behalf of the Peoples of Saddle Lake Indian Band
(formerly referred to as the Cree Tribe of
Indians resident on Reserves #125 and #125A)
Plaintiffs
- and -
SAMBULL, ERNEST JACKSON, MORRIS JACKSON ANDALAN HOULE,
In their own behalf and on behalf of the Peoples of the Whitefish Indian Band
(formerly James Seenum's Band of Cree Tribe of Indians)
Plaintiffs
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER ANDORDER
HUGESSEN J.
[1] In this action there appear to be two groups of plaintiffs: the Saddle Lake Indian Band, an Indian Act Band which is represented by the first named group of individual plaintiffs (herein the Saddle Lake Group); and the Whitefish Lake Band which apparently is a semi autonomous component of the Saddle Lake Group, and is represented by the second group of individual named plaintiffs (herein the Whitefish Lake Group). The action has been pending for almost 20 years and for almost all that time the plaintiffs have been jointly represented by the firm of Ackroyd Piasta Roth and Day (herein Ackroyd).
[2] In January of 2005, the Saddle Lake Group appears to have lost confidence in Ackroyd and to have terminated their retainer. That was followed in due course by a Band Council Resolution from the Saddle Lake Group doing likewise. The present motion seeks to have the Court disqualify Ackroyd from continuing to act for Whitefish Lake Group on the grounds that there is a conflict of interest between Ackroyd's duty to its former clients and its duty to its continuing clients. The motion is opposed by Whitefish Lake Group. Unlike the leading decision of the Supreme Court in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 this is not a case of a "moving lawyer" but rather one of a "moving client." In my view, different considerations apply. In particular, the source of the present situation lies in a change of heart on the part of the client, Saddle Lake Group, and the evidence does not allow me to make any finding of improper conduct on the part of Ackroyd.
[3] I accept that there was a confidential relationship between Ackroyd and each of its former clients. That relationship, however, was with both clients jointly. Assuming that it acted in accordance with its obligations (and there is no evidence that it did not) any confidences received by Ackroyd from one of its joint clients would necessarily have been shared with the other. Nor can I see any present conflict between the two clients of Ackroyd in relation to the matters regarding which it has received confidential information from them. As joint plaintiffs and on the action as presently framed, they are separate entities whose interests are common and not opposed.
[4] There is, no doubt, a potential for conflict between the two groups of plaintiffs in the future relating to such possible issues as the separate existence of the Whitefish Lake Group and the division between the two groups of the fruits of the litigation. These appear to be matters on which Saddle Lake Group now wishes to resile from or alter positions it has previously adopted in the litigation, but they are hardly grounds for disqualifying Ackroyd from continuing to act for Whitefish Lake Group. There is also apparently a specific claim by the Whitefish Lake Group for a reallocation of reserve lands. But none of those issues, in my view, is likely to put Ackroyd in a position where it could or would be tempted to make use of confidential information it has received jointly from these two plaintiffs. Such information was equally available to the Whitefish Lake Group and the latter are under no obligation of confidentiality towards Saddle Lake Group. Whitefish Lake Group may use such information as it sees fit and this would be the case whether it is represented by Ackroyd or someone else. In any event, since none of those disputes has yet arisen in this action, it will be time enough when and if they do to determine whether or not Ackroyd may appropriately continue to represent Whitefish Lake Group in such dispute.
[5] I have also carefully considered the code of conduct of the Canadian Bar Association. In my view it does not impose on a lawyer who has been jointly retained, and subsequently has one of those retainers withdrawn, the obligation to abandon the client who still wishes to retain him. The possible prejudice to such client is very great, especially in a case such as this where the mandate goes back some 20 years. The cost and inconvenience of finding and retaining new counsel and the time required to bring such counsel up to speed would constitute an unjust imposition on an entirely innocent bystander.
[6] I have serious reservations, however, about one of the commentaries to Rule 2 of the Code of Conduct of the Law Society of Alberta. Rule 2 itself simply sets out the accepted rule that a Lawyer "must not act for more than one party in a conflict or potential conflict situation unless all such parties consent...". Commentary 2.2, on that Rule deals with the lawyer's obligation of disclosure, but takes the matter much further and goes on to require that the lawyer "stipulate that if a dispute develops, the lawyer will be compelled to cease acting altogether unless, at the time the dispute develops, all parties consent to the lawyer's continuing to represent one of them." In my view and with respect, this commentary goes a long way beyond both the text and the intent of the rule which it purports to interpret and assumes that on each and every occasion that a lawyer has a joint retainer from two or more clients and has one of those retainers subsequently withdrawn there will always and inevitably be a conflict between the clients such that the lawyer cannot continue to act. Since the commentaries, like the Code itself, are only to be treated as a guide and are not binding on the Court, I decline, with respect, to go this far. The existence of a conflict will depend on the facts of each case and the evidence here does not show any present breach of professional conduct.
[7] Counsel for Saddle Lake Group relies heavily on the decision in Catholic Children's Aid Society of Toronto v. B. (S.), 2002 CarswellOnt 541, 24 R.F.L. (5th) 15 (Ont. C.J.). In my view that case involved unique circumstances relating to the welfare of a battered child and the continuing relations between that child's parents; it does not govern and should not be followed in the present case. The Court should be very reluctant to deprive a litigant of the benefit of representation by counsel of his or her choice and that reluctance increases the greater the amount of time and money that has been invested in the relationship. Here it is very substantial indeed.
[8] The motion will be dismissed. Since the Whitefish Lake Group justifiably considered that it should be represented by separate counsel on the motion (both Court and counsel would have been embarrassed if Ackroyd had pleaded it), it should have its costs on the motion payable forthwith and in any event.
ORDER
The motion is dismissed. The respondent plaintiff, the Whitefish Lake Group, shall have its costs to be assessed payable forthwith and in any event
"James K. Hugessen"
Ottawa, Ontario
Signed this 13th day of January 2006
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