ALEX MOOSWA PLAINTIFF - v. -, 2003 SKQB 138

2003 SKQB 138 Q.B.G. A.D. 200 1 No. 211 J.C. B. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: ALEX MOOSWA PLAINTIFF - and - MOOSOMIN FIRST NATION DEFENDANT C. Wiebe, student-at-law for the plaintiff M.B. Griffin for the defendant JUDGMENT KLEBUC J.

March 25, 2003 [ 1 ] The plaintiff seeks an order “removing” the law firm of Griffin Toews Maddigan & Brabant (“the Griffin Firm”) as legal counsel for the defendant in the instant action because its participation in the within action would be prejudicial to him due to its familiarity with his work on behalf of the defendant, and it “may have confidential information”. Although the proposed order would materially affect the rights of the Griffin Firm they were not joined as a party to the plaintiff’s motion and ought to have been.

Since neither the Griffin Firm nor the defendant objected, I have dealt with the motion on its merits. [ 2 ] The applicable law is fully set forth in MacDonald Estate v. Martin , 1990 CanLII 32 (SCC) , [1990] 3 S.C.R. 1235 and in Richards v. Producers Pipelines Inc. (1996), 1996 CanLII 4948 (SK CA) , 141 Sask. R. 183 (C.A.) . Mr.

Justice Sopinka in Martin , at p. 1243 and p. 1259, articulated the competing legal ethics and policy considerations that arise when a lawyer who had acted for or who is subject to an implicit solicitor and client relationship with one party intends to represent another party in a legal proceeding:

In resolving this issue, the Court is concerned with at least three competing values. There is first of all the concern to maintain the high standards of the legal profession and the integrity of our system of justice. Furthermore, there is the countervailing value that a litigant should not be deprived of his or her choice of counsel without good cause. Finally, there is the desirability of permitting reasonable mobility in the legal profession. . . . At p. 1259: . . . As pointed out by Fletcher Moulton L.J. in Rakusen , “that is a thing which you cannot prove” (p. 841). I would add “or disprove”.

If it were otherwise, then no doubt the public would be satisfied upon proof that no prejudice would be a occasioned. Since, however, it is not susceptible of proof, 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. That, in my opinion, is the overriding policy that applies and must inform the court in answering the question: Is there a disqualifying conflict of interest? . . . Typically, these cases require two questions to be answered:

(1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?

(2) Is there a risk that it will be used to the prejudice of the client? [ 3 ] The Saskatchewan Court of Appeal in Richards v. Producers Pipelines Inc. considered and applied the aforementioned values and tests in circumstances where the law firm sought to be restrained had acted as legal counsel for the defendant on a matter unrelated to the wrongful dismissal action brought by the plaintiff. It concluded that no conflict existed that warranted the law firm being restrained from acting in the wrongful dismissal action. [ 4 ] In the instant case, current and former members of the Griffin Firm who had interfaced with the plaintiff deposed in several affidavits that: (

a) the plaintiff never sought or obtained legal advice from the Griffin Firm regarding his employment relationship with the defendant; (

b) the Griffin Firm played no role in the dismissal of the plaintiff; and (

c) no solicitor and client relationship existed between the plaintiff and the Griffin Firm. They further deposed that all communications between them and the plaintiff related to the defendant’s business affairs and were never of a personal or confidential nature. [ 5 ] The plaintiff concedes he never sought legal advice from the Griffin Firm regarding his employment by the defendant.

Nor in his affidavit or submissions to the Court did he identify the essential character of the confidential information he allegedly communicated to the Griffin Firm or how a solicitor and client relationship between him and the Griffin Firm arose. At para. 11 of his affidavit the plaintiff deposed that he relied on the Griffin Firm to protect him from any personal liability that might arise from work he performed as the defendant’s Treaty Land Entitlement Coordinator and Specific Claims researcher.

In my view such reliance by an employee on his employer’s solicitor does not implicitly create a solicitor and client relationship between the employer’s solicitor and employee even though the employee may have worked with the employer’s solicitor on the employer’s business matters over a lengthy period of time.

I therefore conclude that no solicitor and client relationship exists or existed between the plaintiff and the Griffin Firm. [ 6 ] The plaintiff alleged that the Griffin Firm “may have confidential information” but never set out in his affidavit or his submissions to the Court the general nature of the evidence he allegedly communicated to the Griffin Firm.

Nor did he establish how the nature of the alleged confidential information was material to his wrongful dismissal action. [ 7 ] In my view, the far-fetched linkages advanced by the plaintiff are without merit and fall far short of the thresholds addressed in Richards v. Producers Pipelines Inc. In the result, I conclude that the answer to the first question identified by Sopinka J. is “no”.

This answer obviates the need to address the second question. [ 8 ] With respect to the policy considerations enumerated by Sopinka J., I am satisfied that the Griffin Firm’s representation of the defendant in the instant action raises no legitimate concern regarding the maintenance of the standards for the legal profession or the integrity of our system of justice.

If the plaintiff’s submissions were accepted by this Court, it would expose any law firm representing an employer who deals with an employee of the employer concerning the employer’s business to being restrained in absence of clearly prejudicial circumstances. I am further satisfied that the defendant should not be deprived of its choice of legal counsel without a good cause and that the plaintiff has failed to establish such a cause. [ 9 ] In

summary, the plaintiff has failed to establish a solicitor and client relationship between him and the Griffin Firm, or that he provided them with confidential information regarding matters relevant within lawsuit, or that said firm should be restrained from

acting for the defendant based on legal ethics and related policy considerations. The plaintiff’s application is dismissed. The defendant shall have its taxable costs in any event of cause. ___________________________________ J.