Date: 19991221
Docket: T-1658-98
BETWEEN:
CAE MACHINERY LTD.,
Plaintiff,
- and -
VALON KONE BRUNETTE LTD.,
REALSEARCH INC. and
FUJI KOGYO KABUSHIKI KAISHA,
Defendants.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] Yesterday afternoon I ordered an adjournment of an oral motion brought on behalf of Valon Kone Brunette Ltd. ("VKB"), for an Order that MacKenzie Fujisawa Brewer Stevenson ("MacKenzie Fujisawa") be removed as counsel for Realsearch Inc. MacKenzie Fujisawa had acted for both VKB and Realsearch Inc. ("Realsearch") and had just then, by reason of a conflict in acting for those two Defendants, been successful in having themselves removed from the record as counsel for VKB. New counsel for VKB, in making the request, pointed to an apparent conflict that MacKenzie Fujisawa might have in continuing to act for Realsearch, but based the request upon the British Columbia Law Society"s Professional Conduct Handbook and specifically Rules 5 and 6 of c. 6.
[2] To paraphrase Rules 5 and 6, where counsel acts for clients jointly, but feels that, by reason of a conflict, one must be sent away, counsel then must, subject to the informed consent of all of his or her clients, send away both clients. I was thus urged to make the Order which would seem to flow from these Rules.
[3] I adjourned the oral motion for two reasons. First, I felt those concerned should have time within which to reflect. Second, I recalled some law on point, but could not recollect enough of it to say, with any certainty, what a court ought or ought not to do.
[4] The case I had in mind is Her Majesty the Queen v. McFadden (1975), 62 Cr. App. Rep. 187 at 189 and 190, a decision of Lord Justice James. Halsbury, Fourth Edition, Volume 3(1), at page 348, sets out that this case and In Re: Harrison, [1908] 1 Ch. 282, stand for the proposition that a law society"s rules of professional conduct are neither binding nor enforceable by a court, for they have no effect outside of the profession.
[5] Certainly a court has the jurisdiction, in an appropriate case, to have counsel removed as counsel of record, however such an order ought not to be made in a factual vacuum and solely on the basis of law society rules of conduct.
[6] In the event that counsel are able to resolve the matter before the hearing of the oral motion resumes, please let the Registry know. In the alternative, material upon which I might reach a decision, on the merits, ought to be filed.
(Sgd.) "John A. Hargrave"
Prothonotary
December 21, 1999
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1658-98
STYLE OF CAUSE: CAE MACHINERY LTD.
v.
VALON KONE BRUNETTE LTD.
REALSEARCH INC. AND FUJI KOGYO
KABUSHIKI KAISHA
PLACE OF HEARING: VANCOUVER, B.C.
DATE OF HEARING: December 20, 1999
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
DATED: December 21, 1999
APPEARANCES:
| Mr. Andrew Shaughnessy Plaintiff |
| Mr. John Norton for Defendant, Valon Kone Brunette Ltd. |
| Mr. Brian Konst for all other Defendants |
SOLICITORS OF RECORD:
Dimock Stratton Clarizio
| Toronto, ON for Plaintiff |
Norton Stewart
| Vancouver, BC for Defendant Valon Kone Brunette |
MacKenzie Fujisawa
Brewer Stevenson
| Vancouver, BC for all other Defendants. |
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