Docket: T-2700-24
Citation: 2025 FC 666
Edmonton, Alberta, April 10, 2025
PRESENT: Madam Associate Judge Catherine A. Coughlan
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BETWEEN: |
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CHIEF JUDY DESJARLAIS |
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Applicant |
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and |
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COUNCILLOR WAYNE YAHEY, COUNCILLOR SHELLEY GAUTHIER COUNCILLOR TROY WOLF, COUNCILLOR SHERRY DOMINIC, AS COUNCIL REPRESENTATIVES OF BLUEBERRY RIVER FIRST NATIONS, AND COUNCIL OF BLUEBERRY RIVER FIRST NATIONS |
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Respondents |
ORDER AND REASONS
I. Overview
[1] The Applicant, Chief Judy Desjarlais, (Chief Desjarlais), brings this motion to remove Whitelaw Twining LLP (Whitelaw) as counsel of record for the Respondent, Council of Blueberry River First Nations (BRFN), in this application for judicial review in which Chief Desjarlais challenges a decision removing her as Chief. She claims that Whitelaw is in a conflict of interest because members of Whitelaw had “access to relevant, prejudicial, confidential, and/or privileged information belonging to [her] on the very governance issues that are disputed in this application for judicial review.”
Chief Desjarlais asserts that if Whitelaw continues to act, her interests will be prejudiced and the public’s confidence in the administration of justice will be undermined. Moreover, she claims that no remedy short of disqualification will prevent the misuse of her confidential information and protect the integrity of the legal system.
[2] In response, Whitelaw claims that there is no evidence before the Court that Chief Desjarlais disclosed any relevant confidential information to Malcolm Macpherson (Mr. Macpherson), counsel at Whitelaw, in the context of a solicitor-client relationship. Indeed, Whitelaw argues that Chief Desjarlais was never a client of Whitelaw, Mr. Macpherson, or Mr. Macpeherson’s prior firm, Clark Wilson LLP. Whitelaw claims that any communications Chief Desjarlais may have had with Mr. Macpherson were in his role as legal counsel to BRFN during the period in which she was Chief and representative of BRFN.
[3] Whitelaw also claims that as Chief Desjarlais failed to lead evidence that confidential information was shared with Mr. Macpherson, she has failed to establish a conflict of interest, and disqualification of counsel is not warranted in the circumstances.
[4] Having considered the evidence led and the arguments presented, both written and oral, I am satisfied that Chief Desjarlais has met her burden to demonstrate that confidential information was shared with Mr. Macpherson in relation to the subject-matter of the judicial review. I am also satisfied that the information was shared in the context of a solicitor-client relationship and that to permit Whitelaw to continue to act would adversely affect the public’s confidence in the administration of justice. Accordingly, for the reasons that follow, I am granting Chief Desjarlais’ motion. Whitelaw is disqualified from acting as counsel of record for the BRFN in this application.
II. Background
[5] Both parties filed affidavits in support of this motion. Chief Desjarlais affirmed her own Affidavit #2 on March 14, 2025 (Affidavit #2). Whitelaw relies on the Affidavit of Sarah Jadis, affirmed on March 21, 2025 (Jadis Affidavit). Ms. Jadis is an articling student at Whitelaw. Her Affidavit is brief and appends three exhibits. Those include Exhibit “A”,
a retainer letter between BRFN and Whitelaw dated June 11, 2024, and signed by Mr. Macpherson on behalf of Whitelaw; Exhibit “B”
, the Affidavit of Chief Judy Desjarlais, affirmed November 26, 2024 (Affidavit #1); and Exhibit “C”
, an email chain between counsel appearing on this motion.
[6] Chief Desjarlais’ Affidavit #2 provides the factual circumstances underpinning the current motion. As those circumstances are pivotal to this motion, I will set them out in some detail.
[7] On January 14, 2022, Chief Desjarlais was elected as Chief of the BRFN. She was also a director of Blueberry River Resources Ltd. (BRR), an independent company formed to advance the BRFN’s economic interests.
[8] During her time as Chief, Mr. Macpherson was retained to provide legal services to BRFN. Initially, Mr. Macpherson was a partner at Clark Wilson LLP in Vancouver, British Columbia but in early 2024, he joined Whitelaw.
[9] On September 13, 2024, the four individually named Respondents, who are councillors on the Council of BRFN, removed Chief Desjarlais from office. Chief Desjarlais deposes that the four councillors were attempting to remove her as Chief as early as August 2023. At that time, the four were represented by Mitha Law Group (Mitha Law). Mitha Law continues to represent the four councillors in the underlying judicial review application.
[10] On October 15, 2024, Chief Desjarlais filed the underlying application for judicial review challenging the band council resolution which removed her as Chief and naming the four individual councillors and the BRFN as Respondents. All Respondents, including BRFN, were then represented by Mitha Law. However, on February 10, 2025, BRFN retained Whitelaw to act as its counsel instead of Mitha Law.
[11] Chief Desjarlais was advised by email dated February 11, 2025, from Simon Sigler, counsel at Whitelaw, of their appointment as counsel. Mr. Macpherson was copied on that correspondence. Exhibits to Chief Desjarlais’ affidavit confirm that Mr. Macpherson was copied on other correspondence related to the judicial review application.
[12] On February 18, 2025, counsel for Chief Desjarlais wrote to Whitelaw expressing the view that Whitelaw was in a conflict of interest. Details of the alleged conflict included, among others, that Whitelaw had provided legal services to both BRFN and BRR. Further, that Mr. Macpherson had engaged in discussions with Chief Desjarlais regarding band governance issues and had received confidential information from her on the very subject matter of the judicial review application.
[13] In correspondence dated February 23, 2025, Whitelaw eschewed any conflict but advised that it would ensure that Mr. Macpherson would be “ethically walled off”
from the judicial review or related matters.
[14] In her Affidavit #2, Chief Desjarlais deposes that when she was first elected, BRFN used multiple law firms to provide legal services, including Malcolm Macpherson, then a partner at Clark Wilson LLP.
[15] With respect to her relationship with Mr. Macpherson, Chief Desjarlais deposes as follows:
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That she knew and trusted Mr. Macpherson as a lawyer and as a friend to both she and her husband;
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That she discussed the issues she was having with the four councillors with Mr. Macpherson on several occasions in 2023 and 2024;
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In 2024, when Mr. Macpherson joined Whitelaw, he continued to provide legal services to BRFN, including providing advice to her in her role as Chief;
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She confided in Mr. Macpherson about her impending removal as Chief;
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In October 2023, Mr. Macpherson recommended that Chief Desjarlais retain her own counsel and recommended counsel to her;
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Even after she retained her own counsel, she continued to seek advice from Mr. Macpherson and sought his comments on a public statement she posted on August 30, 2024;
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On September 18, 2024, five (5) days after her removal from office, Mr. Macpherson contacted Chief Desjarlais by text, advising he had heard the news of her removal and asking whether she had time for a call. During a subsequent call, Mr. Macpherson offered his views concerning her removal;
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At no time was she asked for, nor did she ever provide her consent to Mr. Macpherson permitting he or Whitelaw to act against her interest in this application for judicial review.
[16] Chief Desjarlais was not cross-examined on her Affidavit #2. Nor was her evidence challenged except to note that counsel for the BRFN took issue with paragraph 14 of Affidavit #2 which suggests that Simon Sigler was counsel at Whitelaw in early 2024. The Jadis Affidavit places Mr. Sigler’s arrival at Whitelaw on June 24, 2024. In my view, that discrepancy is of little moment on this motion and does not affect the probative value of Chief Desjarlais’ evidence.
III. Legal principles governing removal of counsel
[17] On a motion to disqualify counsel for a conflict of interest, the test is whether the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur if counsel continued to act. In the Supreme Court of Canada’s seminal decision on conflict of interest, MacDonald Estate v Martin, [1990] 3 S.C.R. 1235 [Martin], the Court formulates a test which poses two questions:
1. Did the lawyer receive confidential information attributable to a solicitor-client relationship relevant to the matter at hand?
2. Is there a risk that it will be used to the prejudice of the client? (Martin at 1260; Canadian National Railway Co v McKercher LLP, 2013 SCC 39 at para 24, [2013] 2 S.C.R. 649 [McKercher]).
[18] A conflict of interest is defined as a “substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyers’ own interests or by the lawyer’s duties to another current client, a former client, or a third person”
: Dye & Durham Limited v Ingarra, 2024 FCA 76 at para 13 [Ingarra], citing R. v Neil, 2002 SCC 70, [2002] 3 S.C.R. 631; McKercher; Martin.
[19] To meet the first part of the Martin test, the moving party bears the onus of establishing, on a balance of probabilities, that relevant confidential information was shared: Ingarra at para 14. This may be satisfied by adducing evidence that confidential information was in fact shared with the lawyer in the course of a solicitor-client relationship or by demonstrating that the lawyer’s new retainer is “sufficiently related”
to the matters covered in the prior relationship. For a conflict to arise on the basis that the matters are sufficiently related, the confidential information must be “capable of being used against the client”
in a “tangible manner”
: Ingarra at para 14; McKercher at para 54; MediaTube Corp v Bell Canada, 2014 FC 237 at para 109 [MediaTube].
[20] Further, where a retainer is sufficiently related, a rebuttable presumption arises that the lawyer or law firm possesses confidential information which raises a risk of prejudice: Ingarra at para 15, citing Martin at 1262; MediaTube at para 27.
[21] The presumption may be rebutted by demonstrating that no confidential information was actually shared or by demonstrating that the confidential information is not relevant to the issues at hand: Ingarra at para 15, citing MediaTube at paras 28 and 116; GCT Canada Limited Partnership v Vancouver Fraser Port Authority, 2019 FC 1147 at para 82 [GCT].
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As to the nature of the evidence which must be adduced, a moving party need only show that the matters are “sufficiently related.”
In Celanese Canada Inc v Murray Demolition Corp, 2006 SCC 36 at para 42, [2006] 2 S.C.R. 189, [Celanese Canada], the Supreme Court of Canada, commenting on its earlier decision in Martin confirmed, “it is important to note that [
Martin] imposed no onus on the moving party to adduce any further evidence as to the nature of the confidential information beyond that which was needed to establish that the receiving lawyer had obtained confidential information attributable to a solicitor and client relationship which was relevant to the matter at hand.”
[23] Concerning the evidence required to rebut the presumption, the Supreme Court of Canada recognized that this is not an easy burden to discharge. “Not only must the court’s degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed, but the burden must be discharged without revealing the specifics of the privileged communication”
: Martin at 1260–1261.
[24] The Martin test is rooted in the Court’s interest in striking an appropriate balance between maintaining the public’s confidence in the judicial system, the integrity of the legal profession and a litigant’s right to choice of counsel: Ingarra at para 16; McLean v Suhr, 2018 FC 1000 at para 28 (CanLII); Martin at 1243.
[25] Importantly, the application of the Martin test is not dependent on a pre-existing solicitor‑client relationship. As Mr. Justice Binnie explained in Celanese Canada at para 46, “The gravamen of the problem … is the possession by opposing solicitors of relevant and confidential information attributable to a solicitor-client relationship to which they have no claim of right whatsoever.”
[26] Lastly, it must be noted that a determination of disqualification is highly fact dependent, and each case must be assessed on its own facts. That includes an individual assessment of whether disqualification is the only remedy.
IV. Issues
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Has Chief Desjarlais established that Whitelaw has a conflict of interest?
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If so, is disqualification the appropriate remedy?
V. Analysis
[27] I commence my analysis by noting that the parties are agreed on the legal principles that inform this motion. They part company largely on whether Chief Desjarlais has met her evidentiary burden and, if so, whether disqualification is the appropriate remedy.
A. Has Chief Desjarlais met her burden?
(1) Chief Desjarlais’ position
[28] Chief Desjarlais argues that she has met her evidentiary burden. First, she submits that her evidence demonstrates that throughout 2023 and 2024, she shared confidences with Mr. Macpherson and sought his legal advice regarding the very governance issues that led to her removal as Chief of BRFN and which form the basis of her judicial review application. While acknowledging that she conferred with Mr. Macpherson in her capacity as Chief when he had a retainer agreement with the BRFN, Chief Desjarlais says that she was, nevertheless, in a “near solicitor-client”
relationship with Mr. Macpherson. Relying on GCT from this Court and other British Columbia jurisprudence, she argues that the Martin principles apply in the absence of a solicitor-client relationship because Mr. Macpherson obtained confidential information from her, and she is entitled to the same protections that arise in a solicitor-client relationship. In short, she argues that what is key, is the fact that information flowed from her to Mr. Macpherson as a result of a solicitor-client relationship.
[29] Second, Chief Desjarlais argues that the confidential discussions relate to the very issues in the judicial review application: Chief Desjarlais’ relationship with the four individual Respondents, the investigation into her conduct, and her eventual removal as Chief.
(2) Whitelaw’s position
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In response, Whitelaw argues that Chief Desjarlais’ evidence is inadequate and fails to demonstrate that any communications occurred at all or fails to provide the substance of the communications. This failing, Whitelaw argues, is a full answer to the motion. More pointedly, Whitelaw asserts that Chief Desjarlais ought to have obtained a confidentiality order which would have permitted her to provide the Court “with particulars of the supposed confidential information received by Mr. Macpherson.”
Instead, Whitelaw claims that Chief Desjarlais’ evidence provides only “generalized conclusory statements.”
[31] At paragraph 14 of their written representations, Whitelaw attempts to respond to various facts and allegations deposed to in Chief Desjarlais’ Affidavit #1, served in support of her application for judicial review and her Affidavit #2, affirmed in support of this motion. In multiple subparagraphs, Whitelaw argues that “At no time did Mr. Macpherson or WT provide any advice with respect to this issue.”
These oft repeated denials are in bolded font but are unsupported by evidentiary references filed in the motion material. Rather, these denials are submissions of counsel.
[32] In oral argument, Whitelaw argued that in bringing the within motion, Chief Desjarlais was trying to insert Mr. Macpherson into the fray without particularized evidence supporting her assertions. Whitelaw submits that any relationship Mr. Macpherson had with Chief Desjarlais was in his role as counsel to BRFN and to Chief Desjarlais in her role as Chief. Any confidential information that may have been communicated to Mr. Macpherson was in his capacity as counsel for BRFN and hence, no conflict arises with respect to Chief Desjarlais. This argument, they suggest, is supported by Chief Desjarlais’ own evidence where she acknowledges she was communicating with Mr. Macpherson in her role as Chief of BRFN as well as the fact that she had retained her own counsel as early as 2023. In consequence, Whitelaw says that the conflict of interest raised by Chief Desjarlais is “merely hypothetical at best.”
[33] With respect to the relevance of the confidential information, Whitelaw argues that even if confidential information was shared, Chief Desjarlais fails to articulate how the information could prejudice her application where the evidentiary record before the Court is constrained. Whitelaw asserts that different considerations are at play on a judicial review application as distinct from an action. They submit that because the evidentiary record in an application for judicial review is limited to the record that was before the decision-maker, it is not possible for confidential information to be used against Chief Desjarlais’ interests. This can be contrasted to the direct adversarial nature of an action which “increases the chances that there is a risk of use of confidential information.”
Effectively, this limitation in the evidentiary record in a judicial review application, rebuts any presumption of conflict.
[34] Further, Whitelaw argues that BRFN does not intend to cross-examine any affiants on their affidavits thus eliminating any risk that confidential information that BRFN may have received could be used in a manner adverse in interest to Chief Desjarlais.
(3) Discussion
[35] I do not accept Whitelaw’s arguments.
[36] In my view, Chief Desjarlais has met her burden to show that confidential information was shared with Mr. Macpherson in the context of a solicitor-client relationship. Her Affidavit #2 recounts numerous occasions where she and Mr. Macpherson discussed her relationship with the four councillors and their attempt to remove her as Chief. Contrary to Whitelaw’s assertion, Chief Desjarlais was under no obligation to disclose the actual confidential information itself to seek protection from disclosure: Celanese Canada at para 42. It is sufficient that the evidence establishes that Mr. Macpherson obtained information attributable to a solicitor-client relationship and that the information was relevant to the matter at hand.
[37] While Mr. Macpherson was retained to represent BRFN, the retainer agreement required that he deal directly with Chief Desjarlais in her role as Chief. That confidential information was shared by Chief Desjarlais to Mr. Macpherson in the course of a solicitor-client relationship is, in my view, beyond doubt. That Chief Desjarlais had retained her own counsel at Mr. Macpherson’s suggestion, does not change or diminish the fact that Chief Desjarlais continued to confide confidential information to him throughout 2023 and 2024. As she notes at paragraph 19 of Affidavit #2, she believed she could have confidential and privileged discussions with him as BRFN’s legal counsel.
[38] Further, with respect to the relevance of the information to the underlying application, Chief Desjarlais’ uncontroverted evidence is that she confided in Mr. Macpherson about the challenges she was having with her fellow councillors, about the investigation into her conduct, and about her impending removal. Indeed, at paragraph 20 of Affidavit #2, she recounts that prior to posting a public statement on August 30, 2024, addressing the investigation report prepared as the basis of her removal from office, Mr. Macpherson was given a copy and provided his comments. More telling, however, is paragraph 21 of Affidavit #2 which recounts that on September 18, 2024, five (5) days after her removal from office, Mr. Macpherson contacted Chief Desjarlais by text saying “heard the news. Time for a call today.”
Chief Desjarlais deposes that when they spoke by telephone the next day, she shared more information about what had occurred “and other confidential information directly related to the issues in this judicial review. He offered his views to [her] about [her] removal.”
[39] Given the nature of Chief Desjarlais’ and Mr. Macpherson’s discussions of the very issues in the judicial review, I do not accept Whitelaw’s arguments that there is little risk that the confidential information will be used on the judicial review application because the record is limited, generally, to material that was before the decision-maker. Whitelaw provides no judicial support for this proposition and in any case, it is undercut by their own submission that Chief Desjarlais has served 10 affidavits in support of her application. That Whitelaw undertakes not to cross‑examine any affiants is no answer to the risk of disclosure of the information.
[40] For these reasons, I am satisfied that the public, represented by a reasonably informed person would conclude that use of confidential information would occur if counsel continued to act. Accordingly, I find that Whitelaw has a conflict of interest, and that conflict affects the integrity of the administration of justice.
B. Is disqualification the appropriate remedy?
(1) Whitelaw’s position
[41] Citing the Supreme Court of Canada’s teachings in both Celanese and McKercher, Whitelaw argues that disqualification of counsel is not the only remedy available to the Court when a conflict arises. They assert that the remedy should be curative and not punitive: Celanese at para 34.
[42] In Celanese at para 59, the Supreme Court of Canada considered submissions from the Advocates’ Society and the Canadian Bar Association, both interveners, which suggested a number of factors the Court might consider when determining whether solicitors should be removed:
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how the documents came into the possession of the plaintiff or its counsel;
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what the plaintiff and its counsel did upon recognition that the documents were potentially subject to solicitor-client privilege;
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the extent of review made of the privileged material;
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the contents of the solicitor-client communications and the degree to which they are prejudicial;
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the stage of the litigation;
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the potential effectiveness of a firewall or other precautionary steps to avoid mischief.
[43] In McKercher at para 65, the Supreme Court of Canada added the following additional factors:
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behaviour disentitling the complaining party from seeking the removal of counsel, such as delay in brining the motion for disqualification;
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significant prejudice to the new client’s interest in retaining its counsel of choice, and that party’s ability to retain new counsel; and
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the fact that the law firm accepted the conflicting retainer in good faith, reasonably believing that the concurrent representation fell beyond the scope of the bright line rule and applicable law society restrictions.
[44] Here, Whitelaw argues that when the conduct of the parties is considered, a curative remedy is appropriate.
[45] First, Whitelaw argues that if Mr. Macpherson came into possession of confidential information (which they deny), it was in the course of representing his client, BRFN. As counsel for BRFN, Mr. Macpherson would be blameless if he did in fact, receive confidential information from Chief Desjarlais.
[46] Second, when the dispute escalated and the potential for conflict arose in the summer of 2023, Mr. Macpherson recommend that Chief Desjarlais retain her own counsel. That she did retain her own counsel, Whitelaw contends, is recognition by Chief Desjarlais that Mr. Macpherson was acting solely for BRFN and not for her.
[47] Third, there is no evidence as to the extent of any review of information by Mr. Macpherson. An ethical wall was created within Whitelaw once the conflict was asserted.
[48] Fourth, there is no evidence as to the nature of the information provided to Mr. Macpherson and no evidence from Chief Desjarlais as to how any of the confidential information could be prejudicial to her in the judicial review.
[49] Fifth, Chief Desjarlais’ conduct should disentitle her from claiming Whitelaw should be removed. If Mr. Macpherson is “tainted”
he was only tainted because of information shared by Chief Desjarlais which was inappropriate for her to share in the circumstances.
[50] With the exception of the creation of an ethical wall within Whitelaw, in my view, most of these factors or arguments have no application or have already been addressed previously in this Order. Whitelaw contends that the alleged creation of an ethical wall is an appropriate remedy to stave off disqualification and removal.
(2) Chief Desjarlais’ position
[51] Chief Desjarlais does not agree. In her submissions, Whitelaw failed to satisfy the Court through clear and convincing evidence that all reasonable measures were taken to ensure that no disclosure will occur by the “tainted”
lawyer to other members of the firm who are engaged against Chief Desjarlais: Martin at 1262. Further, she argues that Whitelaw failed to put protective measures in place until after her request that they withdraw was made. At that point, she argues, it was too late for protective measures because Mr. Macpherson was already copied on various correspondence between counsel. The failure to take timely protective measures, Chief Desjarlais says, does not permit her to know the extent of the disclosure to other members of the firm.
[52] In any case, she asserts that Whitelaw’s belated offer to have different lawyers represent BRFN going forward is of little moment where it is the firm and not just the individual lawyer that owes her a fiduciary duty. Here, Whitelaw failed to put in place any safeguards until after the prejudice had crystallized. Disqualification, Chief Desjarlais says, is the only appropriate remedy: McKercher at para 62.
[53] Ultimately, Chief Desjarlais submits that the Court should consider disqualification and removal as automatic because Mr. Macpherson has directly acted against Chief Desjarlais while in possession of her confidential information: Martin at 1261.
(3) Discussion
[54] I am satisfied that no remedy short of removal will suffice to maintain the public’s confidence in the administration of justice. As I noted earlier, the only evidence from Whitelaw is the Jadis Affidavit. Nothing in that affidavit addresses the ethical wall referred to by Whitelaw. Indeed, the only mention of it is in correspondence attached at Exhibit “B” to Affidavit #2 of Chief Desjarlais. The complete failure to adduce clear and convincing evidence militates against alternative measures.
[55] It is worth noting that this proceeding is at an early stage. Whitelaw only became counsel for BRFN on this application four months after it was filed and counsel for Chief Desjarlais raised the conflict immediately. In my view, it will not be difficult for BRFN to retain new counsel and for this application for judicial review to continue expeditiously.
VI. Costs
[56] Chief Desjarlais seeks her costs on this motion on an elevated lump sum basis, payable in any event of the cause. As the successful party, I see no reason to depart from the presumption that the successful party is entitled to its costs. As this motion disposes of BRFN’s involvement, the costs are payable forthwith.
[57] No submissions were made at the hearing of this matter to address the request that the costs be elevated. That said, BRFN sought costs on the same basis. If the parties cannot agree on the amount of costs to be paid, they may make submissions of no more than three (3) pages within fourteen (14) days of the date of this Order.
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