Law Times

October 16, 2017

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Apparent conflict of interest existed: ruling BY ALEX ROBINSON Law Times T he Ontario Court of Ap- peal has ruled that a law- yer who represented an insured had an apparent conf lict of interest, as he was ap- pointed, paid and instructed by an insurer that would have benefit- ed from a ruling that wouldn't be aligned with the insured's inter- ests. In the original dispute, the ap- pellant Ryan Reeb was facing a claim for $1.5 million for shooting a friend in the eye with a pellet gun when he was 14 years old, but his mother's homeowner's insurance with Royal & Sun Alliance had a third-party liability limit of $1 million. In Reeb v. The Guarantee Company of North America, counsel for Reeb brought an ap- plication for a declaration that he was insured under two additional policies of insurance issued to his father and his second wife. The application judge dis- missed the application, finding that an intentional act exclusion in the insurance policies excluded the injuries suffered by the claim- ant. The Court of Appeal found that if it upheld the application judge's decision, it could also eliminate Reeb's coverage under the Royal & Sun Alliance policy, leading to a conf lict between their interests in the proceeding. "As a result of the constellation of interests, this court raised with the parties whether appellant's counsel was in an apparent con- f lict of interest," the Court of Ap- peal decision said. "One the one hand, he is being paid by Royal & Sun Alliance to defend Ryan Reeb and pursue his appeal. On the other hand, how- ever, if the appeal fails, then Ryan Reeb will have no insurance cover- age whatsoever, which would be to Royal & Sun Alliance's financial advantage." Lawyer George Frank, of Devry TERRIBLE TWOS Federal Grits looking to freshen up P6 FOCUS ON Labour & Employment Law P8 PM #40762529 $5.00 • Vol. 28, No. 32 October 16, 2017 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M PRIVATE DATA Unknown how widely surveillance used P4 BY ALEX ROBINSON Law Times A n Ontario Superior Court judge has ruled that defence counsel cannot disseminate dis- closure they receive to the media. In R. v. Mossaddad, Justice Mark Edwards found defence counsel cannot share Crown dis- closure for reasons unrelated to defending the criminal proceed- ings. Lawyers say the decision has implications for what criminal de- fence counsel can do with the dis- closure they receive from Crowns before trial. The ruling was on an applica- tion by criminal defence lawyer Daniel Brodsky, who requested direction from the court after his client, Cameron Mossaddad, instructed him to share disclosure with the media. "The defence bar fought long and hard to enlist courts to enforce the right to reasonable disclosure," Brodsky says. "But the questions of what we do with the disclosure and are per- mitted to do with the disclosure, the answers to those questions are not as clear as you might think." Brodsky's client is accused of murdering his grandmother, but he claims he has been framed. Brodsky says Mossaddad wants to share the disclosure with the media in the hope that it would further an investigation that would help his case. The question of whether coun- sel is bound by a deemed under- taking not to disseminate disclo- sure to the public had not been specifically addressed in Ontario's jurisprudence before Edwards' ruling. Edwards, therefore, had to reach outside of Ontario and con- sult decisions from other prov- inces for guidance on whether there is an implied undertaking. "I am satisfied, having reviewed the jurisprudence across this country, that the time has come for this court to recognize that wheth- er or not the Crown disclosure provided to defence counsel for a self-represented accused is the subject of a written undertaking, that a deemed undertaking none- theless would apply such that the only basis upon which the Crown disclosure may be used would be in the context of providing a See Ruling, page 2 Daniel Brodsky says an Ontario Superior Court decision highlights questions around disclosure of Crown materials to media outlets. Photo: Robin Kuniski Counsel can't share disclosure with media George Frank says it is not common for an insured individual to have potential recourse against more than one insurer. See Reluctant, page 2 9th Annual Dealing with the Lease: Specialty Leases JOIN OUR FULLY ACCREDITED PROGRAM | EXPAND YOUR NETWORK AND OBTAIN CPD HOURS Register online: • 416-609-5868 | 1-877-298-5868 *Discount applies to in-class only USE PROMO CODE EARLYBIRD2017 & SAVE $300* EARLY BIRD ENDS OCT.25 Untitled-1 1 2017-10-10 8:23 AM Contact Nicole Breakey 1-888-781-9083 ext. 117 E-mail: SCAN | CODE | LOAD ocudavit-EARLUG_LT_Apr24_17.indd 1 2017-04-20 7:54 AM TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM

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