Canadian National Railway Company v SSAB Alabama Inc., 2019 SKCA 33

Court of Appeal for Saskatchewan Docket: CACV3319 Citation: Canadian National Railway Company v SSAB Alabama Inc. , 2019 SKCA 33 Date: 2019-04-04 Between: Canadian National Railway Company Applicant/Proposed Respondent (Plaintiff) And SSAB Alabama Inc., SSAB U.S.

Holding Inc. and SSAB Americas, LLC Respondents/Proposed Appellants (Defendants) Before: Schwann J.A. (in Chambers) Disposition: Application denied On Application From: 2018 SKQB 272 , Regina Application Heard: January 24, 2019 Counsel: James Ehmann, Q.C., and Keith Kilback for the Applicant Gavin MacKenzie and Brooke MacKenzie for the Respondent Schwann J.A. I. Introduction [ 1 ] Canadian National Railway Company [CN], the respondent in the proposed appeal, applies for an order removing Mr. Kenneth Peel as counsel of record for the proposed appellants, SSAB Alabama Inc., SSAB U.S.

Holding Inc., and SSAB Americas, LLC. For convenience purposes, I will refer to all three proposed appellants as “SSAB”, unless specifically stated otherwise. II. background A. The action [ 2 ] SSAB Alabama Inc. [SSAB Alabama] is an Alabama-based company that manufacturers and produces steel and steel-related products at its production facility in the state of Alabama. On October 16, 2014, SSAB Alabama received an order from an Alberta-based company for steel-related products and for those products to be delivered to that province by rail.

On November 23, 2014, the steel product was loaded on a flatbed railcar owned or operated by the Norfolk Southern Railroad Company [NSR] by employees or contractors working for SSAB. The flatbed car carrying the steel product was transported from Alabama to Tennessee. Since NSR’s operation did not extend into Alberta, CN undertook to serve as the connecting railroad for the shipment. The flatbed car carrying the steel product was then transferred to a CN freight train and transported to Winnipeg.

In Winnipeg, the flatbed car was transferred to another CN freight train destined for Alberta, via Saskatchewan. [ 3 ] On December 12, 2014, at approximately 110 kilometres north of Regina, Saskatchewan, the steel plates allegedly slid off the flatbed car and struck the tank car immediately behind it, causing the tank car to derail. Other plates fell onto the track that, in turn, allegedly caused more cars to derail. CN says it suffered losses in excess of $12 million as a result of this derailment. [ 4 ] CN commenced an action against SSAB in the Court of Queen’s Bench for Saskatchewan.

CN alleges the railcar carrying the steel product that had been manufactured by SSAB in Alabama, and on its way to Alberta, was improperly loaded by SSAB and that this was the cause of the train derailment. B.

The Chambers decision [ 5 ] SSAB brought an application in the Court of Queen’s Bench arguing that the Saskatchewan court lacked territorial competence under The Court Jurisdiction and Proceedings Transfer Act , SS 1997, c C-41.1 [ CJPTA ], to hear the claim and, in the alternative, that the Court of Queen’s Bench should decline to exercise its territorial competence and require CN to pursue its claim in the United States District Court, Southern District of Alabama. [ 6 ] Justice Leurer (as he then was), who heard the matter, found in favour of CN and allowed the claim to proceed in Saskatchewan ( Canadian National Railway Company v SSAB Alabama Inc. , 2018 SKQB 272 [ Chambers Decision ]): [5] … I find that a real and substantial connection exists between Saskatchewan and the facts on which CN’s claim against SSAB is based.

Therefore, this Court has territorial competence pursuant to s. 4 (

e) of CJPTA . I also conclude that the U.S. District Court, Alabama is not a more appropriate forum in which to try this proceeding. CN’s claim against SSAB can therefore proceed in this Court. (Emphasis added) C. Proceedings in the Court of Appeal

[ 7 ] On October 24, 2018, SSAB applied in this Court for leave to appeal the Chambers Decision by filing its notice of motion, draft notice of appeal, draft order and memorandum of law. In these materials, Mr. Peel is shown as counsel of record for SSAB, along with co-counsel from the Regina office of Miller Thomson LLP. Mr. Peel was not counsel of record on SSAB’s territorial competence application. According to Ms. Jodi Evely, Regional Counsel and Director of Litigation for CN, SSAB’s application for leave to appeal was the first time she learned that Mr.

Peel was acting against CN in this action. [ 8 ] With this revelation in hand, CN’s notice of motion requests “[a]n order that Kenneth Peel, barrister and solicitor, be removed as counsel and disqualified from acting for the Defendants (Proposed Appellants) in this action …”. By consent of the parties, SSAB’s application for leave to appeal was adjourned sine die pending determination of the within application. D. Mr. Peel’s background and experience [ 9 ] Mr. Peel has had a long connection with CN. He served as CN’s in-house general counsel from 1983 to 1997. In that capacity, Mr.

Peel was responsible for managing litigation for CN. In 1998, Mr. Peel left CN for private practice but from 1998 until 2007, he frequently represented CN on various actions in Ontario. In November of 2007, CN terminated Mr. Peel’s lengthy relationship with it and directed that all files on which Mr. Peel was then acting for CN be transferred to another law firm. [ 10 ] In 2008, Mr. Peel left the law firm he had been associated with to establish a solo practice, focusing in on transportation and railway law. Since 2009, Mr.

Peel has represented clients directly adverse in interest to CN and, according to the evidence, at no point did CN suggest Mr. Peel had a continuing solicitor–client relationship with it, object to Mr. Peel acting adverse to it or suggest that he owed a duty of loyalty to CN. In fact, CN initiated an action against Mr. Peel personally in September of 2014 for professional negligence. (CN subsequently consented to an order dismissing the action against Mr. Peel.) [ 11 ] By the same token, Mr.

Peel has been frequently retained to defend independent shortline railway operators in actions arising from incidents on tracks they have leased from CN. Since CN owns the tracks where the incidents typically occur, CN is named as a defendant in the action. The shortline railway operators are contractually obligated by the terms of their agreements with CN to assume the defence of any action on behalf of CN and to indemnify and save it harmless. The shortline railway operators retain counsel of their choice at their own expense to defend these sorts of actions in CN’s name.

The nature of this arrangement is described in SSAB’s brief of law as follows: 36. From time to time, such matters arise as a result of CN’s exercise of its contractual right to require a shortline railway operator to assume and manage defence of a lawsuit under one of the aforementioned lease agreements.

Plaintiffs tend to name CN as a defendant in such actions because CN holds title on the lands where an incident has occurred, or due to historic assumptions, or as a precaution even though the shortline railway operator is responsible for the actual maintenance, operation, and occupation of the leased railway line (Peel affidavit at para 28). [ 12 ] According to CN, Mr. Peel is currently counsel of record for shortline railway operators in five ongoing actions in Ontario [the Ontario actions].

There is no suggestion in the materials filed with this Court that the Ontario actions are in any way related to the CN derailment action in Saskatchewan, or that Mr. Peel has obtained confidential information in those matters that is otherwise relevant to or at risk of being misused by him in the present action. [ 13 ] Finally, it is of note that Mr. Peel has practiced railway and transportation law for over 35 years, with a particular focus on litigation involving railways.

He has been a certified specialist in civil litigation since 1993 and has been consistently recognized as one of Canada’s leading lawyers in railway and transportation law. E. CN’s objection to Mr. Peel’s involvement in the Saskatchewan action [ 14 ] Ms. Evely filed an affidavit in support of CN’s application to remove Mr. Peel. According to Ms. Evely, she became aware that Mr. Peel was, as she put it, acting “adverse in interest to CN” in this matter on October 24, 2018, when she received SSAB’s application for leave to appeal. As mentioned above, Mr.

Peel is shown as counsel of record for SSAB with the two Regina lawyers who had been counsel in the Court of Queen’s Bench. [ 15 ] Once Ms. Evely became aware of Mr. Peel’s involvement in the CN litigation, she immediately objected to his representation of SSAB while concurrently representing CN in the Ontario actions. In similar fashion, applications to remove Mr. Peel as counsel of record in the Ontario actions have been brought in that province. [ 16 ] In spite of Ms. Evely’s position, she candidly concedes that she was aware Mr.

Peel had made inquiries on behalf of SSAB with the Transportation Safety Board [TSB] in March of 2015 about the derailment. These inquires took place several months before the CN claim was issued. But, because CN’s claim had been commenced by Regina counsel (and Mr. Peel had not been named as counsel for SSAB in the statement of claim), Ms. Evely assumed Mr. Peel’s involvement with this action had ended with his correspondence to the TSB. [ 17 ] Moreover, after the application for leave to appeal had been filed in this Court, Ms. Evely discovered that Mr. Peel had called CN’s co-counsel, Mr.

Fox, Q.C., with the Cozen O’Connor Law firm, in February of 2017. The said law firm is retained by CN’s insurer to act on the insurance side of the CN derailment claim. Mr. Peel had apparently indicated to Mr. Fox, Q.C., that he represented SSAB. He asked Mr. Fox, Q.C., for an undertaking not to note for default of defence in this action without reasonable notice. [ 18 ] CN maintains Mr. Peel is in a solicitor–client relationship with it because of the Ontario actions. CN has never agreed to waive privilege or the duties of loyalty, confidentiality and candor that Mr.

Peel is said to owe to CN as its asserted counsel. Neither has Mr. Peel sought CN’s consent to act for SSAB in the within matter. III. Position of the Parties

[ 19 ] CN puts forth the following arguments in support of its application to have Mr. Peel removed as the counsel of record for SSAB: (

a) Mr. Peel is concurrently acting as counsel of record for CN in five Ontario actions. (

b) Mr. Peel’s concurrent representation of CN in the Ontario actions and SSAB in this action is directly adverse to the interests of CN and contrary to the “bright line” rule articulated in R v Neil , 2002 SCC 70 at para 29 , [2002] 3 SCR 631 [ Neil ]. (

c) Mr. Peel did not seek or obtain CN’s consent to act for SSAB in this case. (

d) CN has not waived the duties of loyalty, confidentiality and candour said to be owed to it by Mr. Peel nor does it consent to Mr. Peel acting against CN in this matter while simultaneously representing CN in the Ontario actions. (

e) It was reasonable for CN to expect Mr. Peel would not act against it, even in an unrelated matter. (

f) The conflict of interest issue was raised with Mr. Peel as soon as it was discovered by Ms. Evely but Mr. Peel has refused to voluntarily withdraw as counsel of record for SSAB. [ 20 ] SSAB submits the right to retain counsel of choice is recognized as a fundamental value in our justice system and, as such, ought not be discarded lightly (citing Mangadlao c Sanderson , 2016 QCCA 587 ). Mr. Peel is SSAB’s counsel of choice. In specific response to CN’s arguments, SSAB contends the following: (

a) The nature of the relationship between CN and Mr. Peel does not give rise to a duty of loyalty. For more than 11 years, Mr. Peel and CN have not had a “normal solicitor/client” relationship of the nature contemplated by the bright line rule in Neil . (

b) Mr. Peel is counsel of record for CN in the Ontario actions in name only. He acts in this capacity not because CN has a “relationship based on trust”, but because he has been retained by shortline railway operators as counsel of record for CN, which is simply a nominal defendant in the proceedings. (

c) Shortline railway operators retain counsel of their choosing and at their own expense to defend actions brought against CN. Pursuant to the terms of lease agreements with CN, they are obliged to indemnify and hold CN harmless. (

d) The broad rules applicable to conflict jurisprudence are context-specific and must be sensitive to the unusual circumstance that Mr. Peel finds himself in relation to the Ontario actions. (

e) It would be unreasonable for CN to expect that Mr. Peel owed exclusive loyalty to CN and to refrain from acting adverse to it; accordingly, the bright line rule does not apply in this unique and unusual circumstance. (

f) Depriving SSAB of its counsel of choice is unwarranted in light of the context-specific circumstances. IV. Analysis [ 21 ] I begin by focusing on the precise relief requested by CN in its notice of motion: “An order that Kenneth R. Peel, barrister and solicitor, be removed as counsel and disqualified from acting for the Defendants (Proposed Appellants) in this action ” (emphasis added). [ 22 ] Before proceeding further, I find it necessary to closely examine the breadth of the relief sought by CN.

As I interpret the record, in light of CN’s position in argument before me, the relief sought is broad and all-encompassing in its intended scope and effect. CN does not, strictly speaking (although it will have such an effect), seek an order removing Mr. Peel as counsel for SSAB in the leave to appeal application in this Court or, if leave is granted, the appeal proper. Rather, as is evident from the nature of the relief sought in CN’s notice of motion and draft order, CN asks a judge of this Court to make an order removing Mr. Peel from this action .

By using the phrase “in this action”, I take CN to mean that it wants a judge of this Court to remove Mr. Peel from the action in the Court of Queen’s Bench. [ 23 ] My conclusion about the breadth of the intended relief is reinforced by the specific concerns expressed by Ms. Evely in her affidavit. In this regard, she identifies the following six reasons why Mr. Peel should not be permitted to represent SSAB in this action while concurrently representing CN in the Ontario actions: (

a) Mr. Peel has been given CN documents and information in the Ontario actions. CN is concerned about Mr. Peel’s ability to compartmentalize information received in his capacity as counsel for CN in the Ontario actions since that information may also be relevant to CN’s defence in this action . (

b) CN will be unable to have candid discussions with Mr. Peel about any weaknesses in its position in the Ontario actions for fear any comment could potentially be explored and used by Mr. Peel for SSAB in this action . (

c) Ms. Evely does not have confidence in Mr. Peel’s loyalty and commitment to CN and his ability to put CN’s interests first in the Ontario actions. Any further information provided or documents produced to Mr. Peel in those actions will have to be carefully vetted to determine if they may be of use to him in this action . (

d) Ms. Evely can no longer allow Mr. Peel to speak directly with CN personnel or potential witnesses in relation to the Ontario actions without having CN’s in-house counsel present for fear they may produce information that might be relevant to the defence in this action . (

e) Ms. Evely does not have confidence in Mr. Peel’s ability to be loyal to CN in the Ontario cases when he prepares its witnesses given the possibility he may cross-examine the same CN witnesses down the road in this action .

(

f) If Mr. Peel is permitted to act against CN in this action, Ms. Evely is not confident Mr. Peel will appropriately limit the scopeof any further request for information or documents to the issues in the Ontario actions. [24] With those comments in mind, I return to the application. As framed by the parties, it engages the following issues: (

a) Is Mr. Peel in a solicitor–client relationship with CN because of his involvement in the Ontario actions? (

b) Does the bright line rule apply to Mr. Peel’s circumstance, and, if so, did he breach it? (

c) Is Mr. Peel’s removal as counsel of record in this action for SSAB the appropriate remedy? [25] In light of my reasoning in relation to this Court’s jurisdiction to grant the relief requested, I find I do not need to address thefirst two issues. Instead, without deciding either question, I have proceeded on the assumption they are resolved in favour of CN. As I seeit, the only issue before me is the question of remedy. That said, and to be clear, my approach should not be taken as implicit recognitionof the merits of CN’s arguments on the first two issues.

CN will have to establish the legal efficacy of its position if and when this mattercomes before another court. [26] With those preliminary comments in mind, I now turn to whether Mr. Peel’s removal as counsel of record for SSAB is theappropriate remedy. Analysis of this issue is, in my view, framed by two interrelated considerations that directly bear on the jurisdiction ofa single judge of this Court to grant the relief sought by CN. [27] To begin with, this application must be placed in appropriate context.

In this respect, it is noteworthy that the application is notan appeal from a lower court decision dismissing CN’s application to have Mr. Peel disqualified from acting for SSAB in that court. If thiswere an appeal from a decision of that nature, this Court would be called upon to determine whether the applications judge committed areversible error in not disqualifying Mr. Peel. In the end, the Queen’s Bench decision would either be sustained or overturned. In otherwords, the appellate result would conceivably have a direct bearing on whether Mr.

Peel could continue to act for SSAB in the action thathad been commenced in the Court of Queen’s Bench. [28] Instead, this is a first instance application to the Court of Appeal in Chambers to remove Mr.

Peel from the file altogether.Given the apparent breath of the relief sought (as discussed above), I must ask myself whether there is authority for a single judge, sittingin Court of Appeal Chambers, to grant relief that would bind proceedings in the Court of Queen’s Bench. [29] With these considerations in mind, particularly the breadth of the proposed relief, I am satisfied the order sought by CN ispremature, principally aimed at addressing concerns with Mr.

Peel’s duty of loyalty in the Ontario actions, brought in the wrong court andbeyond the jurisdiction of this Court. [30] To the extent CN seeks to have this Court disqualify Mr. Peel from acting for SSAB in the Queen’s Bench action, theapplication is premature. This Court has yet to rule on SSAB’s leave application. If leave were to be granted, and SSAB were to prevail onappeal, CN would have to bring its action in Alabama and, presumably, discontinue the Saskatchewan action. [31] Second, as evidenced by Ms. Evely’s affidavit, most of her concerns relate to how Mr.

Peel might conduct himself in theOntario actions and if his duty of loyalty to CN (assuming it exists) will be compromised on those files by reason of his retainer withSSAB. In my view, CN’s concerns with regard to such matters are, for the most part, more appropriately addressed in Ontario. [32] The final but most important point to be made here relates to the scope of the proposed relief and this Court’s jurisdiction togrant it.

Section 20(1) of The Court of Appeal Act, 2000, SS 2000, c C-42.1, is the governing provision: Judge in chambers 20(1) A single judge sitting in Chambers may hear and dispose of an application or motion that is incidental to an appeal or matterpending in the court and that does not involve the decision of the appeal on the merits. [33] The power conferred on a judge sitting in Chambers is broad and routinely exercised in relation to procedural matters leadingup to an appeal hearing.

In Haug v Dorchester Institution, 2016 SKCA 55, [2016] 10 WWR 484, Caldwell J.A. described the scope of theauthority encompassed in s. 20(1) in the following way: [3] To begin, as is evident by the language of s. 20(1) of The Court of Appeal Act, 2000, a single judge of this Court sitting in Chambershas broad power but is restricted in its exercise to disposing of applications or motions that are “incidental to an appeal or matter pendingin the court” and that do not “involve the decision of the appeal on its merits”.

This power has been interpreted as permitting a Chambersjudge to make all manner of orders affecting procedural matters incidental to an appeal or to preserve the status quo pending the appeal,provided the order does not, in its effect, decide the appeal or render it moot. See, as examples, Mann v KPMG Inc., 2001 SKCA 24, 203Sask R 267; T.E.T. v J.D.L., 2004 SKCA 76, 249 Sask R 218; Sundown Theatre Co.

Ltd. v Ro-Edd Agencies Ltd., 2009 SKCA 78, 337Sask R 111 [Sundown]; Affinity Credit Union v United Food and Commercial Workers, Local 1400, 2014 SKCA 114, 446 Sask R 204;Beare v Kirby Enterprises Inc., 2013 SKCA 44, 414 Sask R 66. On the other hand, it is not open to a single judge of this Court sitting inChambers to make an order that effectively puts an end to an appeal or that addresses in a final way a matter properly left to the panel whowill hear the appeal, such as an application to adduce fresh evidence.

See, as examples, Kachur v Lanigan Creek-Dellwood BrookWatershed Association, 2006 SKCA 81, 285 Sask R 180; Sundown; Clements v Preece, 2014 SKCA 63, 438 Sask R 222; He v Chen, 2010SKCA 29, 346 Sask R 274; 604598 Saskatchewan Ltd. v Saskatchewan Liquor and Gaming Licensing Commission (Sask) (1997), (SK CA), 152 Sask R 201 (CA); Cochet v Cochet (1989), (SK CA), 74 Sask R 219 (CA); Owen v Thomas(1988), 60 Sask R 84 (CA); Turbo Resources Ltd. v Gibson (1987), (SK CA), 60 Sask R 221 (CA). [34] There are two limitations to the exercise of discretionary authority under s. 20(1).

First, s. 20(1) does not empower a singlejudge to make an order if the order would, in effect, decide the appeal on its merits. There is no suggestion CN’s application would havethat effect. This brings me to the second limitation: the relief sought must be incidental to an appeal or a matter pending in the court.Clearly, the first of these scenarios does not apply for the simple reason that until leave is granted there is no appeal. As to the second part

of the precondition, I am satisfied that CN’s application, viewed narrowly, relates to a “matter pending before the court”. Matter isdefined by s. 2 of The Court of Appeal Act, 2000, to mean “every proceeding in the court that is not an appeal”. An application for leave toappeal is undoubtedly a “proceeding” in this Court, even though it has not yet achieved appeal status.

Furthermore, a matter is said to beincidental when it is one that “has a minor or subordinate role in relation to the outcome of the appeal proper” (Stevenson Estate v Bank ofMontreal, 2009 SKCA 11 at para 10, 320 Sask R 168). [35] To conclude on this point, I am satisfied that an order directing the disqualification of Mr. Peel as counsel of record for SSABon the leave to appeal application in this Court is incidental to a matter pending before this Court, and therefore it is an order that I amempowered to make under s. 20(1) (Shingoose v Harripersad, 2005 SKCA 102, 275 Sask R 125 [Shingoose]).

Whether my discretionshould be exercised in favour of disqualification is another matter. [36] With that jurisdictional framework in mind, I return to the scope of the relief sought by CN in this Court and whether there isauthority under s. 20(1) to grant it. As discussed below, quite apart from Mr. Peel’s continued involvement on the leave to appealapplication, I interpret CN’s application, and supporting materials, to be a broad-based request for an appellate judge, sitting in Chambers,to make a first instance order that would effectively remove and disqualify Mr.

Peel as counsel of record for SSAB in the Queen’s Benchaction. The scope of the relief sought is undoubtedly beyond the jurisdiction of s. 20(1), since it is far more than being incidental to amatter before this Court. The reality is that the relief sought largely concerns Mr. Peel’s involvement in this matter in the Court ofQueen’s Bench and, as such, it stands to reason that the application should be brought in that court. CN is at liberty to pursue anapplication in the Court of Queen’s Bench to remove Mr.

Peel as counsel of record for SSAB if the appeal proper is denied (assumingleave is granted), or if the procedural stay imposed by Rule 15(4) of The Court of Appeal Rules is lifted. [37] I recognize that, pursuant to s. 5 of The Court of Appeal Act, 2000, a Court of Appeal judge has the power, right and privilegesof a Court of Queen’s Bench judge and retains the power to perform the function of said judge.

That said, as Cameron J.A. (as he thenwas) pointed out, “it may be necessary in rare circumstances to call upon the court, in the context of a proceeding in the court that doesnot constitute an appeal as such, to exercise the powers and jurisdiction conferred upon the judges of the court by subsections 5(1) and (2)…” (emphasis added, citations omitted, Civil Appeals in Saskatchewan: The Court of Appeal Act and Rules Annotated (Regina: LawSociety of Saskatchewan Library, 2015) at 13).

While the Court exercised such powers in R v Sterling (1992), (SKCA), 84 CCC (3d) 65 (Sask CA), it did so because there was no right of appeal from an order that had been made in the Court of Queen’sBench, and by drawing on the doctrine of ex debito justitiae.

In other words, it did so when presented with a rare and unique circumstance.There are no exceptional circumstances in the matter before me that justify the exercise of the powers of a Court of Queen’s Bench judgeto make a first instance order concerning the conduct of parties in the court below. [38] I have also considered whether this Court’s inherent jurisdiction to control its own processes provides some jurisdictionalsupport. In my view, the broad reach of the relief sought in this case takes things well beyond any notion of this Court controlling its ownprocesses.

The decisions cited by CN (Shingoose and Eagle Eye Investments Inc. v CPC Networks Corp., 2012 SKCA 20, 385 Sask R 264[Eagle Eye]) are distinguishable and are of no assistance. The issue in Shingoose was whether Mr. Merchant could represent his client onthe appeal proper in light of a Court of Queen’s Bench decision that had found him to be in a conflict of interest position in the underlyingaction. As I understand the facts in Eagle Eye, the respondent had applied to the Court of Appeal in Chambers for an order removingMr. Ayers as counsel for Eagle Eye Investments Inc. on appeal.

Before the application was heard, Mr. Ayers agreed to withdraw ascounsel on the appeal proper but maintained his right to act for Eagle Eye Investments Inc. on its application before a Court of AppealChambers judge to remove McDougall Gauley LLP. While it is not completely clear from the decision, it appears as though the motionbefore Richards J.A., as he then was – the removal of McDougall Gauley – was “no more than an aspect of the appeal proper” (at para 33)and, therefore, was limited to the removal of Mr.

Ayers in this Court and not more broadly in the court below. [39] Neither of these authorities, in my view, serves to enlarge the jurisdiction of a single judge sitting in Chambers so as to grant thebroad relief sought by CN in this matter. [40] This leaves the question of whether I should disqualify and remove Mr. Peel from acting as counsel of record for SSAB on theleave to appeal application in this Court. The following factors have guided the exercise of my discretionary authority on this question: (

a) There is no suggestion Mr. Peel obtained confidential information from CN as the result of his involvement with the Ontarioactions. In light of this, disqualification is not automatic. (

b) At its highest, CN’s argument involves a question of impaired representation in the Ontario actions. While this argument haspotential traction if CN’s action continues in the Court of Queen’s Bench, particularly in light of the concerns expressed by Ms. Evely, Ifail to see how Mr. Peel’s disqualification on the leave to appeal application is necessary to address her concerns. (

c) No arguments were advanced by CN about the potential risk of impaired representation if Mr. Peel acts for SSAB on theleave to appeal application. All of the materials for the leave application have been prepared and filed by Mr. Peel. The only remainingstep in the process is argument on the application itself. I see no principled reason to prevent Mr. Peel from arguing the application. (

d) Mr. Peel maintains he accepted the SSAB retainer in good faith, believing, as he does, that he was not in a solicitor–clientrelationship with CN. At its worst, Mr. Peel may have been mistaken about the nature of his ongoing relationship with CN. At some point,this issue will need to be resolved but, as I said, it is not necessary for me to do so here given the jurisdictional constraints. (

e) CN knew or should reasonably have known that Mr. Peel was involved with SSAB for two years prior to the withinapplication. In spite of this, no conflict or loyalty concerns were raised with Mr. Peel before October 2018. (

f) Mr. Peel is SSAB’s counsel of choice. Courts have routinely recognized a litigant’s right to be represented by counsel ofchoice as a fundamental value in our justice system. This value is not discarded lightly without a serious and compelling reason to do so. (

g) Mr. Peel possesses specialized expertise in transportation and railway litigation that cannot be replaced easily. [41] In light of the unique circumstances of this case, I am not persuaded the integrity and repute of the administration of justicewould be tarnished if Mr. Peel is allowed to participate in the leave to appeal application. All things considered, I find the factors weigh

against disqualification of Mr. Peel on the leave to appeal application. Consequently, CN’s application is dismissed. If leave to appeal is granted, CN has leave to renew its application for Mr. Peel’s disqualification in relation to his participation in the appeal proper. [ 42 ] SSAB shall have one set of costs from CN in the usual manner. “Schwann J.A.” Schwann J.A.