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October 16, 2017

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Page 2 OctOber 16, 2017 • Law times www.lawtimesnews.com full answer and defence to the criminal proceedings," Edwards wrote in the decision. Edwards found that if de- fence counsel has received dis- closure that is not the subject of a written undertaking, a deemed undertaking nonethe- less applies, and it should not be disseminated to the public without further direction of the court. Lawyers say the implied un- dertaking begins as soon as dis- closure is received and contin- ues indefinitely. This means that lawyers would not be able to share dis- closure with the media or the public even after a trial has concluded, unless disclosure becomes an exhibit at trial and there is no publication ban. Edwards ruled that Brodsky had no legal basis to share dis- closure with the media, as there was an absence of evidence from Mossaddad that showed the ex- plicit purpose for disseminating such information. "If defence counsel or an ac- cused has received disclosure that is not the subject matter of a written undertaking, I am of the view that a deemed undertaking nonetheless applies to such dis- closure and no use may be made of such disclosure outside of the context of the criminal proceed- ings without further direction from the court," the ruling also notes. Criminal defence lawyer Amanda Ross says the decision is helpful as it brings some clar- ity that would have otherwise been lacking. She says that in her practice she has always in- terpreted use of Crown disclo- sure as being subject to an im- plied undertaking, even in the absence of a written one. She says that the written undertaking has almost served as a reminder for counsel, stu- dents and self-represented ac- cused as to what their obliga- tions are. She says that in some courthouses, written undertak- ings will come with every piece of disclosure and in others it will only be received at the begin- ning of a case. Ross says this case provides some good guidance to lawyers as to why disclosure cannot be shared with the public. "I think that it provides a place to hang your hat, because in some cases, there are ques- tions clients have for you that can be difficult to answer be- cause there is always a compet- ing interest in every criminal case," she says of the decision. "You have an obligation to your client obviously to vigor- ously defend him or her, uphold his rights and advance their case against the state. And at the same time, as lawyers, we're all officers of the court and so there can be some conf lict there." She adds that having judicial input on issues like this is help- ful for lawyers so that they can explain to their clients why they cannot do something they are instructing them to do. For Brodsky, however, the decision is not the end of the issue. He says there are a lot of re- maining questions around dis- closure and that the decision brings the issue to the attention of other judges and the bar so that these issues can be litigated and resolved. "It really does demonstrate that there's still a long way to go," he says. If his client is ultimately un- successful at trial, Brodsky says the issue of what he could do with disclosure could be brought up in an appeal. Ross says following this de- cision, defence lawyers will be very hard-pressed to say they did not know they were not allowed to release disclosure to outside party or to publicize pieces of disclosure. "This decision is a very firm warning to be very careful and circumspect in how you deal with disclosure," she says. LT Ruling shows there's 'still a long way to go' Smith Frank LLP, who was not involved in the case, says it is fairly rare for the court to inter- vene in such a way. "I suspect that the occasions on which the court will inter- vene on its own initiative will be rare, but prudent defence coun- sel will ensure that they have ap- prised everyone of any potential conf lict and the potential rami- fications of the conf lict, so that if the court does intervene, it will not come as a surprise to either of defence counsel's clients," he says. Frank adds that the fact situ- ation in this case is unusual as it is not common for an insured individual to have potential re- course against more than one insurer. Reeb's counsel Bruce Mitch- ell asserted in his submissions that there is no conf lict, as pur- suing the additional insurance was necessary and it was in the client's interests because the claim exceeded the policy limits. Mitchell declined to com- ment for this story. Counsel for the respondent insurance companies took the position that it would be reason- able to infer that Royal will not provide coverage to Reeb if the appeal is dismissed. They also submitted that af- ter the plaintiffs in the under- lying action made a settlement offer under the policy limits, there was no benefit for Reeb to proceed in the underlying appli- cation. The court, however, found that there was a reasonable ap- prehension of a conf lict between the interests of Reeb and those of Royal & Sun Alliance. "While we are not saying that appellant's counsel actually preferred the interests of Roy- al & Sun Alliance over those of Mr. Reeb, the apprehension of a conf lict precludes this court from ruling on the merits of the appeal," the decision said. The court found that there is no way of knowing how things would have unfolded had Reeb been represented by independ- ent counsel throughout the proceedings and that both the application and the appeal were impugned as a result. Marianne Davies, a partner with Flaherty McCarthy LLP, says the courts are generally re- luctant to remove counsel that an insurance company has ap- pointed. "Of course, the insurance company has entered into a con- tract with their insured, which gives them the right — at least at first instance — to do exactly that, to get the counsel that they want involved on a case," says Davies. She says it is something the courts will do in cases where there is a demonstrated appre- hension of a conf lict. Davies, who was not in- volved in the case, says insur- ance defence counsel always has to be mindful of a potential con- f lict of interest that might arise in cases where they are given a qualified instruction from a client. "Presumably, if you feel that you can still act, you probably still should be letting your client know that it's certainly possible that somebody can raise this issue at a later time," she says. Without ruling on the merits of the appeal, the court set aside the application judge's decision. The court ordered that Reeb should have independent coun- sel who does not report to the insurer going forward. The court also decided that amicus curiae should be ap- pointed to help with the issue. The court also requested fur- ther submissions to determine what should happen next. John Polyzogopoulos, a part- ner with Blaney McMurtry LLP, who was not involved in the case, says the decision is a clear example of the dangers that in- surance defence counsel have to be mindful of. "You never know when around the corner an issue of conf lict will arise between in- sured and insurer," he says. "And as defence counsel you have to be very careful and mindful of those potential con- f licts and not get in the middle of them." Mark O'Donnell, who was coverage counsel for Royal, did not respond to a request for comment. Jeff Garrett, the lawyer who represented the respondents in the appeal, declined to comment on the decision as the matter re- mains before the Court of Ap- peal. 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