Law Times

Page 2 February 4, 2013 Law Times • NEWS Conflicts case shows need for law firm regulation: professor BY YAMRI TADDESE Law Times A recent discrimination case at the Human Rights Tribunal of Ontario offers some guidance on addressing potential conflicts of interest when a lawyer who previously worked with one party's counsel joins the firm that represents the other side. In Lukasik v. 611554 Ontario Inc. o/a Palm's Court Restaurant, the tribunal found there was no need to disqualify a lawyer acting for the respondent over concerns about a potential conflict. It found the lawyer's firm had taken measures to prevent the transferring counsel it had hired from discussing the case Appeal court clarifies meaning of 'highway' in HTA BY BREANNE NICHOLSON For Law Times M otorists may be subject to Highway Traffic Act charges on private property after the Ontario Court of Appeal offered a new meaning to the term "highway" in the legislation. The Jan. 21 ruling in R. v. Hajivasilis ordered that in cases where a vehicle collision occurs on private property, the term "highway" could still apply to areas not outlined in the act. "Numerous provisions in the HTA, like s. 199, do not use the word 'highway' or any related word," wrote Justice David Doherty. After backing his car into a vehicle at a supermarket parking lot, Ioannis Hajivasilis drove away without reporting the accident. Authorities then charged him with failing to report an accident. Since Hajivasilis hit the vehicle on private property, a justice of the peace found s. 199 didn't apply to the accident and dismissed the charge. Ontario Court Justice Cathy Mocha upheld the ruling on appeal. In doing so, she referred to a previous case in which an uninsured motorist wasn't responsible for damages to a vehicle because the incident had occurred on private property. The Crown, however, argued otherwise. "Not all of the provisions of the Highway Traffic Act are limited to highways," said Ministry of the Attorney General spokesman Brendan Crawley, who noted the court looked at the "context" of the provision to determine that s. 199 didn't apply only to highways. "Many of those sections create duties that are intended to protect the public by regulating various activities relating to motor vehicles," wrote Doherty. "Even though the duties imposed by these provisions are not tied directly to the operation of a vehicle on a 'highway,' the provisions clearly enhance public safety in connection with the use of motor vehicles whether on the highway or elsewhere," Doherty added. But according to personal injury lawyer Jeffrey Baum, the legal meaning as found by the appeal court may cause confusion for motorists. "I think it'll make it more complicated for the general public," says Baum, who notes that with different legal requirements for motorists on private property, drivers may not know whether they're violating the act. But Baum believes Doherty "was correct" in the ruling and predicts the definition set out by the appeal court will prompt more drivers to report accidents and will therefore prevent undocumented collisions. But with an increase in reported accidents, Baum believes there may be more arguments over whether or not collisions on private property involve $1,000 in damages. "Unfortunately, for some people who may know about this or who may know about the legislation, [they] will argue that they didn't think that there was $1,000 in damage," says Baum. "It's going to result in many changes in people's everyday lives when they have incidents or accidents that occur in parking lots, in their own driveways or on dirt roads in the back country that are on someone's private property." LT Canadian Council of Criminal Defence Lawyers Conseil Canadien des Avocats de la Défense CHAIR William M. Trudell (Toronto, ON) VICE CHAIR Isabel J. Schurman (Montréal, QC) Mark Brayford, Q.C. (Saskatoon, SK) TREASURER André J. Rady (London, ON) SECRETARY John M. Williams (Regina, SK) DIRECTORS David J. Bright Q.C. (Halifax, NS) Gregory P. DelBigio (Vancouver, BC) Richard S. Fowler (Vancouver, BC) Peter J. Harte (Nunavut) Deborah R . Hatch (Edmonton. AB) Kim Hawkins (Whitehorse, YT) Brain Hurley (Edmonton, AB) Lucie Joncas (Montréal, QC) Once again, we thank Bell Canada for its remarkable "Let's Talk" campaign (February 12th, 2013) We all know Colleagues in our Profession who may be suffering silently with Mental Health issues Lisanne O. Maurice (Moncton, NB) John Norris (Toronto, ON) Evan J. Roitenberg (Winnipeg, MB) Robert E. Simmonds (St. John's, NL) FOUNDING CHAIR Brian H. Greenspan (Toronto, ON) On February 12th, Let's Try to Reach Out To Them! PAST CHAIR Marvin R. Bloos, Q.C. (Edmonton, AB) 116 Simcoe Street * Suite 100 * Toronto * Ontario * M5H 4E2 * Tel: 416.598.2019 * Fax: 416.596.2599 Web page address: http://www.cccdl.ca * Administrator's email: ahenderson@simcoechambers.com WilliamTrudell_LT_Feb4_13.indd 1 www.lawtimesnews.com1:41 PM 13-01-30 with his new colleagues. According to the applicant in the case, the transferring lawyer, Daniel Chodos, was actively involved in her matter while he worked at Kuretzky Vassos Henderson LLP, the firm where her current counsel practises. But in his Jan. 22 decision, HRTO vice chairman Brian Cook found Chodos' new firm "showed good faith in providing timely information to the applicant's counsel about the measures that had been taken to protect the confidentiality of the applicant's information." Nevertheless, the case shows why law societies should regulate not just lawyers but law firms as well, says Adam Dodek, a law professor at the University of Ottawa. "I'm surprised that we still see cases like this 22 years after the Supreme Court's decision in Martin and Gray," he says of a 1990 conflict of interest decision known as MacDonald Estate v. Martin. "To me, it shows the need for law societies to require lawyers and law firms to have conflict policies." If law societies regulated law firms by mandating written policies, courts could spare resources that now go into addressing interim motions such as the one considered by the HRTO in Lukasik, says Dodek. The Law Society of Upper Canada has guidelines on what law firms should do when a lawyer from an opposing firm joins it, but Dodek says that's not enough. "The problem is this case shows the rules are not enough," he says. "Rules in a book are not enough if you don't have policies in place." Malcolm Mercer, a partner at McCarthy Tétrault LLP, begs to differ. Law firms, acting in their own interests, will ensure the right protocols are in place even if law societies don't regulate them, he says. "I don't see this case as an argument for law firm regulation since law firms will work hard to avoid unnecessary disqualification whether regulated as firms or as individual lawyers," says Mercer, who acts in disputes involving confidential commercial information and is also a bencher at the law society. In this case, "the tribunal assessed whether sufficient protective measures were implemented to provide assurance that misuse of confidential information would not occur," he adds. In his decision, Cook found Whitten & Lublin LLP, which represents the respondent, had done enough to ensure that Chodos didn't communicate what he knew about the case with the rest of the firm. "Mr. Chodos has not discussed the matter of representation with anyone at Whitten & Lublin," wrote Cook. "Lawyers and staff at Whitten & Lublin have been advised not to speak with Mr. Chodos about the file and the matter is only to be discussed by the lawyers actually working on the file. Mr. Chodos is not to see or have access to any documents relating to the current representation." 'The tribunal was entitled, on the facts, to decide that the absence of a written policy was not fatal,' says Malcolm Mercer. Cook also noted Whitten & Lublin had segregated physical and electronic files from Chodos and let the plaintiff 's counsel know in writing that he had switched firms. The fact that Whitten & Lublin didn't have a written policy on communication with transferring lawyers was the main issue raised in the case, says Mercer. In his view, however, "the tribunal was entitled, on the facts, to decide that the absence of a written policy was not fatal." The law society's guidelines on the transfer of lawyers suggest the receiving law firm should communicate the rules with its staff in writing. But following all of the recommendations in the guidelines may not be necessary, the law society says, just as applying them may not be sufficient in some cases. Since Whitten & Lublin is a relatively small firm, Cook found the absence of a written policy wasn't an issue. "In these circumstances, I agree with the respondents that the need for a case-specific written policy is not as important as it might be in a large firm," he said. "In a small firm, verbal communication is likely to be effectively received by all concerned, which may not happen in a large firm." For Dodek, who wrote an article in the Canadian Bar Review on law firm regulation, conflicts of interest are one of the areas where a law firm's unique culture, whether conducive to good ethics or not, is relevant when it comes to assessing lawyers' actions. "A lawyer may find herself in a conflict of interest because her firm lacked an appropriate conflicts screening procedure," he wrote in the article. "Or the lawyer may have followed firm procedures regarding proceeding in the face of an arguable conflict of interest. In such cases, it is not accurate or fair to attribute an individual lawyer's breach of the rules of professional misconduct solely to the lawyer's actions if the lawyer was following the firm's procedures." Lukasik, a case dealing with allegations that an employer reduced the applicant's work hours after a medical leave, will now go ahead following Cook's disqualification findings. LT

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