Law Times

Page 4 OctOber 17, 2016 • Law times www.lawtimesnews.com NEWS No conflict on Uber class action: judge BY ALEX ROBINSON Law Times A judge has rejected Uber's attempt to have Sutts Strosberg LLP re- moved as counsel to a class action lawsuit filed by taxi drivers. The ride-sharing company tried to have the firm — which is acting on behalf of the taxi drivers — kicked off the suit over an alleged conf lict of interest concerning one of its lawyers, Nicholas Cartel. Goodmans LLP, which rep- resented Uber on other matters, had previously employed Cartel before he joined Sutts Strosberg in February 2016. Uber's lawyers claimed Sutts Strosberg "failed to install the required internal screens" when they hired Cartel, who they said had previously acted on behalf of Uber on related litigation. They claimed Cartel's previ- ous employment in Goodman's competition group presented a risk of a disclosure of confiden- tial information. In a decision delivered from the bench, Superior Court Jus- tice Edward Belobaba, however, found that Uber had not pre- sented any evidence that proved Cartel was privy to confidential information. "Apart from broad gener- alities, theoretical possibilities and frankly, bald assertions, the Uber defendants made no effort to adduce any meaningful evi- dence — even heavily redacted evidence — to support their submission that NC was privy to confidential information," he wrote in his decision. Belobaba, who awarded $20,000 in costs against Uber, added that the likelihood Cartel received confidential informa- tion that would be prejudicial to Uber in the class action pro- ceeding was "minimal to non- existent." Cartel had worked for Good- mans while the firm was repre- senting Uber on the injunction application brought by the city of Toronto, which the ride-sharing company ultimately won. Before he joined Sutts Stros- berg's new Toronto office, he had told managing partner Jay Stros- berg that he had worked in Good- mans' competition group and the two agreed that Cartel would not be involved in any Uber-related cases, the decision said. But Cartel was then asked to commission two affidavits on another application separate from the class action lawsuit but also brought against Uber by the taxi drivers. Strosberg says having Cartel commission the affidavits "was not the wisest decision," but that it was merely an "administra- tive" task. "It all happened so quickly that sometimes there are a lot of moving parts to these things and we didn't even think about it," he says. "So it wasn't the wisest move and it wasn't top of mind, but the most important part is that he didn't have any access to any of the information in the file either electronically or physically." While he was at Goodmans, Cartel had billed 13.1 hours to the Uber file for time he spent preparing a paper that the head of his group was going to present at a conference. But Belobaba found that in- formation in the paper would be presented publicly and the work was not billed to Uber in the end. "There is no indication that NC considered or used any confidential information when drafting this paper, and there is no suggestion that informa- tion contained in a paper that was being prepared for public presentation could somehow be confidential," Belobaba wrote. Cartel was also copied on court documents on Uber-related issues while at Goodmans, but they were already in the public domain at that point, the decision said. Strosberg says there was no basis for a conf lict of interest, as there was no risk of disclosure of confidential information, as Cartel had none to share. "I think that oftentimes there is a lot of merit to motions de- fendants bring and sometimes when there is a motion there is a close call for the judge. I don't think this is one of those in- stances," he says. "There is no question that there wasn't a shred of evidence that Mr. Cartel received any confidential information and he performed an administrative function by commissioning an affidavit and that was it. " Strosberg says that lawyers are not able to retrieve electronic files at the firm in cases they do not work on, and that as part of the firm's policy any of the law- yers working on the case knew not to speak to Cartel about it. Uber's attempt to get Sutts Stros- berg removed from the class ac- tion was not its first. Goodmans had originally discovered Cartel's involvement on the action against Uber that was separate from the class action. In March 2016, Goodmans demanded Sutts Strosberg with- draw as counsel in that case al- leging a conf lict of interest. "[I]t is apparent that the ap- propriate measures to prevent disclosure of Uber's confiden- tial information either were not established or are not effective," Goodmans wrote in a letter. Goodmans filed a removal motion; however, it did not pro- ceed because the application was abandoned after Uber was legalized. McCarthy Tétrault LLP rep- resented Uber when it filed the subsequent removal motion on the class action lawsuit, which has not been certified yet. Awanish Sinha, of McCarthy Tétrault LLP, who represented Uber on the matter, declined comment. Kirk Baert, the lawyer repre- senting Sutts Strosberg on the motion, says Uber's attempt to get the firm kicked off was a tac- tic to slow down certification of the class action lawsuit. "We should get on to the ac- tion itself rather than worrying who the plaintiff 's lawyer is," says Baert, who is a partner at Koskie Minsky LLP. "Would a reasonably in- formed member of the public be shocked that Sutts Strosberg gets to stay on the case? No, I think they would say this is lawyers playing games to delay the law- suit," he added. Counsel for Uber insisted that the removal motion was brought in good faith and not just an attempt to delay the ac- tion, the decision said. Belobaba accepted that the motion was brought in good faith, but he said that it was with- out merit. LT Jay Strosberg says there was no basis for Uber to try to have his firm removed from a class action lawsuit, and a judge has agreed. Get expert insight on the legislation and case law impacting roads, streets, and highways. This classic resource offers a practical approach to 41 key road principles in Ontario. For each principle, you'll find a concise explanation, historical background, most recent cases and a review of the Municipal Act, 2001. 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