2011 QCCA 2149, 2011 QCCA 2149

Malobabic-Giancristofaro c. Quebec Bar Association 2011 QCCA 2149 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-021972-112 ( 500-17-059790-108 ) MINUTES OF THE HEARING DATE: November 11, 2011 THE HONOURABLE FRANÇOIS DOYON, J.A. PETITIONER ATTORNEY BRANA MALOBABIC-GIANCRISTOFARO Personally RESPONDENTS ATTORNEYS QUEBEC BAR ASSOCIATION PROFESSIONAL LIABILITY INSURANCE FUND OF THE QUEBEC BAR HEENAN BLAIKIE S.E.N.C.R.L. STEPHAN H. TRIHEY STEPHEN G. SCHENKE DOUGLAS C. MITCHELL Mtre Pierre Bélanger Mtre Mathieu Cardinal BÉLANGER LONGTIN Mtre Marie-Claude Drouin CAIN LAMARRE CASGRAIN WELLS ABSENT ABSENT

MIS EN CAUSE ATTORNEY MONROI.INC MOTION FOR DISQUALIFICATION Clerk: Annick Nguyen Court Room: RC.18 HEARING Continuation of November 8, 2011, hearing. Judgment – See page 4. Annick Nguyen Clerk JUDGMENT [ 1 ] I have before me the petitioner's motion for leave to appeal a judgment of the Superior Court rendered on September 12, 2011.

It ordered the suspension of her proceedings instituted against, amongst others, the Bar of Quebec ("the Bar") and the Fonds d'assurance du Barreau du Québec ("the Fonds "), while awaiting a judgment to be rendered in another file in which, according to the trial judge, the facts and the applicable law are inextricably linked to the present file. [ 2 ] When pleading her motion for leave before me, the petitioner presented a motion to disqualify the firm of Bélanger Longtin ("the Firm"), which is acting on behalf of the Bar, on the basis that it had also represented the Fonds in part of the proceedings in this file in the Superior Court.

She argues that these circumstances place the Firm in a situation of conflict of interest. [ 3 ] This judgment disposes of the petitioner's motion seeking to disqualify the Firm from pleading on behalf of the Bar in appeal against, amongst other proceedings, her motion for leave. [ 4 ] Without it being necessary to describe all of the details, it must be noted that, in the Superior Court, the Firm preferred to cease acting on behalf of the Fonds following a motion filed by the petitioner to that effect on October 26, 2010 [1] , "in order to avoid a useless

debate and to appease the preoccupations of the Plaintiff/Applicant, and without admitting any situation of conflict of interests…". Cain Lamarre Casgrain Wells was accordingly substituted to the Firm as of February 8, 2011 [2] and the petitioner desisted from her own motion as "this motion will not be necessary, as your firm [Cain Lamarre Casgrain Wells] appeared for the Insurer [the Fonds ]" [3] . [ 5 ] It should also be mentioned that the Bar and the Fonds both consented at the time to this double mandate.

The Firm had already taken the necessary steps to insure the confidentiality of information transmitted to the Syndic [4] and the Firm indicated in its letter that the faults alleged were totally different and that their respective interests were not contradictory. [ 6 ] In my view, there is no evidence before me of a conflict of interest, whether real or apparent. Both clients made a fully informed decision and never complained about their respective choices in that regard.

In light of the evidence, the Firm acted in accordance with its obligations. [ 7 ] The petitioner nevertheless insists that the matter is one of public order that she is free to submit, to the extent it is shown that confidential information about her was disclosed (particularly in that the Fonds would have had access to the files of the Syndic, to whom she addressed her complaints) inasmuch as the same law firm represented both parties. [ 8 ] I have no proof before me that would allow me to reach such a conclusion.

While the petitioner's affidavit dated November 4, 2011 alleges several breaches of such a nature, they are nothing more than allegations whose accuracy has not been established.

In fact the proof shows that the Firm sought to have the exhibits from the Syndic's file produced under seal and that the testimony of the witnesses be given in camera , precisely with the objective of protecting the confidentiality of the Syndic's inquiries [5] . [ 9 ] In her affidavit, the petitioner stated: There is a presumption that Bélanger Longtin shares with the Insurer all confidential information of said investigation, which directly concern present judicial proceedings, which gives to the Insurer unfair advantage in the present proceedings. [ 10 ] There is no such presumption and, according to the evidence, no such conclusion can be drawn.

As I mentioned before, the evidence contradicts this allegation. [ 11 ] It is true that a court can, on its own initiative, raise an issue of conflict of interest and disqualify a law firm from acting in a file.

I do not see any basis on which such a step should be taken with respect to the Firm. [ 12 ] Finally, in this Court, it should also be noted that the Fonds is no longer represented by the Firm, which, as I have already mentioned, was replaced by Cain Lamarre Casgrain Wells in the Superior Court on February 8, 2011. [ 13 ] For these reasons, the petitioner's motion to disqualify the Firm is dismissed , without costs, and the motion for leave to appeal will be heard on December 13, 2011. FRANÇOIS DOYON, J.A.