Since the advent of the Supreme Court of Canada decision in MacDonald Estate v. Martin  3 S.C.R. 1235, litigants have been taking pot-shots at the solicitors of opposing parties by arguing that the solicitors ought to be removed as solicitors of record. In Spagnuolo v. Calderone Shoe Co., an 1998 unreported decision of Case Management Master Polika, the defendant took this concept to its extreme.
The court will remove a lawyer from a case when it appears that confidential information given by a client to that lawyer in a matter would be used against the client in that or another matter. The rationale for this rule is stated as follows:
“The spectre of a lawyer cross examining a former client on issues of credibility where the cross examination may be based on confidential information disclosed in a previous retainer is more than one system of justice can bear. There would be a very real appearance of professional impropriety through use of confidential information received from clients being used against them.”
The facts in the case are convoluted.
1. The defendant fires two individuals. They briefly see a solicitor for advice about wrongful dismissal. Seven months later, the defendant re-hires one individual as a manager. We do not know what happens to the other individual. It is irrelevant for purposes of this case.
2. Eight more months go by. The manager, on behalf of the defendant, then fires the plaintiff. The defendant had employed the plaintiff for 7 1/2 years prior to the termination.
3. Who does the plaintiff go to for help? Yep, the original solicitor who had advised the manager 15 months ago.
4. The solicitor commences an action on behalf of the plaintiff against the defendant for wrongful dismissal.
5. The plaintiff chooses an officer of the defendant to examine for discovery. The defendant requests that the manager be examined instead because he is more knowledgeable. The plaintiff agrees to the request.
6. Prior to the examination taking place, the defendant raises the objection that since the manager had previously obtained advice from the solicitor 25 months earlier, the solicitor had received confidential information and ought to be removed as solicitor of record in the action.
The Master found that the solicitor, in his brief consultation with the manager, was acting in a matter totally different from that at issue in the action. He found that the defendant failed to demonstrate that any confidential information was given to the solicitor by the manager that was germane to the matters in issue in the action. Finally, he found that it was the defendant who was relying on the manager as a witness and who, on that basis, sought to force the plaintiff to retain new counsel and incur additional fees.
The Master dismissed the defendant’s motion with costs fixed at $1,200.00.