Gloger v. Evans, 2018 ONSC 4919 (CanLII), <http://canlii.ca/t/htkjj>
This case, Gloger v Evans examines the test to be applied on a motion to remove opposing counsel in the context of an estate.
During a dispute between a brother and sister over their parents’ estate, the sister hired a lawyer from the firm that drafted their parents’ Wills.
The brother sought the removal of the firm as the sister’s counsel alleging that the firm cannot represent her because there were several conflicts of interest and that such representation would undermine public confidence in the administration of justice.
The parties’ parents retained a law firm to prepare their Wills. The mother died in 2010 and the father died in January of 2015. The father’s Will divided his estate between the brother and sister equally and named them both as trustees.
The brother stated that after their father passed away, the parties called the firm that drafted their parents’ Wills to administer the estate. There was also a suggestion that the brother had spoken to a member of the firm and was advised that his father had instructed the firm to prepare a new Will which remained unsigned.
Three days later, a dispute arose between the siblings and they each retained separate counsel. Three years later the sister retained the firm that drafted the parents’ Will to represent her in the action.
The brother sought to have his sister removed as trustee and her counsel removed from record. He argued that the firm’s representation of the sister created many conflicts. He further claimed that the lawyers involved in the preparation of the Will might be called to testify as to its content, which would lead to the sister’s counsel cross-examining a member of his firm, which would be inappropriate. The brother also suggested that there was a real risk that the sister would be privy to confidential information provided to the firm by the brother or the father.
Both parties relied on the test set out in MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), 1990 CarswellMan 233,  3 S.C.R. 1235 where the Court stated, “typically, these cases require two questions to be answered: (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?”
The Court in MacDonald also noted that because prejudice is difficult to prove, “the test must be such that the public, represented by the reasonably informed person, would be satisfied that no use of confidential information would occur… [This] must inform the court in answering the question: is there a disqualifying conflict of interest?”
The evidence included an affidavit from the lawyer who assisted the parents in preparing their Wills. The lawyer’s evidence was that he had reviewed the relevant file which contained no notes after 2010 and no second Will.
The brother did not cross-examine the lawyer on his Affidavit. There was also no reference in the Statement of Claim to the unsigned Will or any instructions for same.
The Court noted that even if there was a second unsigned Will, the estate was already in the process of being administered and no one had filed a challenge. As such, the alleged unsigned Will did not appear to have much relevance to this action.
The lawyer’s Affidavit also indicated that the brother had never retained the firm. The Court accepted this evidence and noted that the brother was not a former client of the firm and by his own admission, he had never provided any confidential information to the firm.
The brother argued that their father had provided confidential information to the firm. The Court concluded that it would be hard to see “how any notes with respect to an alleged unsigned second will could be relevant to this action.” The Court also went on to note that: “It is hard to see how any instructions that [the father] provided for his 2010 will, which named both the plaintiff and the defendant as trustees, is relevant to this action regarding alleged trustee misconduct.”
In Essa (Township) v. Guergis, 1993 CarswellOnt 473 (Div Ct), at paras 43 and 44, the court stated that premature orders should not be made. The parties should wait until there is certain to be a problem. The motives of a party who is attempting to remove the other party’s counsel are not always pure. The court should consider the right of the client to be represented by counsel of choice and take a flexible approach.
In the circumstances, the Court declined to consider the second step of the test.
The motion was dismissed with costs payable on a partial indemnity basis in the amount of $13,668.71, by the brother.
Premature orders are not likely to be made by the Courts concerning issues of representation. This case is also a reminder to litigants to reconsider bringing meritless motions which may lead to significant costs orders.