



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Sampley v. Sampley,









2015 BCCA 51




Date: 20150113

Docket: CA042350

Between:

Matthew Jason
Sampley

Respondent

(Petitioner)

And

Michelle Denise
Sampley

Appellant

(Respondent)




Before:



The Honourable Mr. Justice Groberman

(In Chambers)




On appeal from: an
order of the Supreme Court of British Columbia dated
November 5, 2014 (
Sampley v. Sampley
, 2014 BCSC 2434,
Cranbrook Registry No. 24551)

Oral Reasons for Judgment




Counsel for the Appellant:



G.A. Lang





Counsel for the Respondent:



J. Lalonde (via
  teleconference)





Place and Date of Hearing:



Vancouver, British
  Columbia

January 13, 2015





Place and Date of Judgment:



Vancouver, British
  Columbia

January 13, 2015








Summary

Mr. S. sought and obtained
relief under the Hague Convention on the Civil Aspects of International Child
Abduction. Before the litigation commenced, he had consulted with Ms. L.
with a view to having her represent him. On the appeal, Ms. S. retained
Ms. L. Mr. S. applied to have Ms. L. removed from the case on
the basis of conflict of interest. Held: Application dismissed. Ms. L. was
in a situation of conflict, having received confidential from Mr.  S. She
should not have accepted a retainer to represent Ms. S. on the appeal. The
dangers of abuse of confidential information are generally attenuated on
appeal, but remain present. A bright-line test generally prevents counsel from
representing one party after having received confidential information from the
opposite party to the litigation. There is, however, a discretion in the court
to allow counsel to continue where it is satisfied that it is in the interests
of justice to do so, and where the dangers of misuse of confidential
information are minimal. Here, there was no real likelihood of misuse of
confidential information. Counsel took on the case in good faith, there was
urgency in having the matter heard, and Mr. S. had not brought the
application on in a timely fashion. Ms. L. was allowed to continue to represent
Ms. S., but only for the purposes of the current appeal.

[1]

GROBERMAN J.A.
: This is an application brought by the respondent
for an order that the appellants counsel be required to withdraw from the case
on the basis that she is in a conflict of interest.

[2]

The appeal arises out of an order made in the Supreme Court on
November 5, 2014 under the
Convention on the Civil Aspects of
International Child Abduction
, Can. T.S. 1983 No. 35 (the 
Hague
Convention
). Reasons for judgment were issued on December 23, 2014, a few weeks
after the order was made.

[3]

Within a week of the order being made, Ms. Sampley decided to bring an
appeal and she retained Ms. Lang to act as her appeal counsel. That created a
potential problem because, when he was initially contemplating bringing his
Hague
Convention
application, Mr. Sampley had contacted Ms. Lang with a view to
having her represent him.

[4]

Mr. Sampleys evidence is that in April 2014, he left a voicemail for
Ms. Lang in his initial attempts to find counsel. He deposes:

I received a return phone call
from Ms. Lang a few days after I left her the initial voicemail. During my
conversation with Ms. Lang, I explained my entire personal situation involving
the abduction of [the child] by Michelle, including but not limited to a
detailed account of the facts of my case, my desired outcome, and my thoughts
on my case. I told Ms. Lang intimate details regarding this proceeding, and I
consider the information that I told Ms. Lang to be confidential information.

[5]

On November 11, 2014, Ms. Lang advised Mr. Sampleys counsel that she
had been retained to bring the appeal. He immediately raised the issue of conflict
of interest. In a letter dated November 14, 2014, he stated:

My client informed me that he spoke with you regarding this
file prior to him commencing his
Hague
petition. He spoke with you in
length about his situation and informs me that you were willing to represent
him for the petition.

It seems that this puts you in a
conflict in acting for Ms. Sampley in the appeal, however, I will wait to hear
from you on this issue.

[6]

There followed correspondence between counsel. At a case management
conference on November 20, 2014, before Neilson J.A., it was agreed that the
issue should be dealt with by way of an application in chambers to be brought
during the week of December 5, 2014.

[7]

There were some perfunctory attempts made by Mr. Sampleys counsel to
bring the matter on in chambers, but despite the lack of any serious obstacles
to doing so, nothing much actually occurred until the material for the
application was filed on January 5, 2015. The matter comes on for hearing, for
the first time, this morning.

[8]

There is often urgency in
Hague Convention
matters, and in this
case an expedited appeal has been arranged with a hearing date of February 17,
2015. The appellants factum, I am advised, was filed yesterday. Although there
is some issue as to when the respondents factum will be filed, I am informed
that, assuming counsel for the appellant is able to continue, the parties are
on-track for a hearing on the scheduled date. It is acknowledged by counsel for
the respondent that if Ms. Lang is required to withdraw as counsel, the
February 17 date will be lost and the matter will have to be rescheduled at
some point further in the future.

[9]

There are effectively three issues in this application. The first is the
question of whether Ms. Lang was given confidential information that raises an
issue of conflict of interest. The second is whether, this being an appeal, any
confidential information received by Ms. Lang is effectively irrelevant so that
a conflict does not arise. The third issue, if there is a conflict of interest,
is whether the delays in bringing this application are such that Ms. Lang
should be allowed to continue notwithstanding any conflict.

[10]

On the first question there is little evidence of the information that
was imparted to Ms. Lang apart from the paragraph in the affidavit of Mr.
Sampley that I have already referred to. It is difficult to determine precisely
what information may have been exchanged. In such a situation, the law
generally errs on the side of caution. In
MacDonald Estate v. Martin
,
[1990] 3 S.C.R. 1235 at 1260, Sopinka J. said:

In my opinion,
once
it is shown by the client that there existed a previous relationship which is
sufficiently related to the retainer from which it is sought to remove the
solicitor, the court should infer that confidential information was imparted
unless the solicitor satisfies the court that no information was imparted which
could be relevant. The degree of satisfaction must withstand the scrutiny of
the reasonably informed member of the public. This will be a difficult burden
to discharge.

[11]

The affidavit of Mr. Sampley indicates that confidential information was
imparted to Ms. Lang. In any event, on the basis of the reasoning of Sopinka J.
in
MacDonald Estate
, it should be inferred that she received confidential
information. There is nothing in the respondents material that serves to rebut
the inference. I proceed on the basis, therefore, that confidential information
was provided by Mr. Sampley to Ms. Lang.

[12]

In saying this, I wish to emphasize that Ms. Lang has advised the Court
that she was not conscious of having spoken to Mr. Sampley when she accepted a
retainer from Ms. Sampley. Even now, she has only a vague recollection of some
gentleman contacting her with respect to a
Hague Convention
application.
It is not suggested that she recalls confidential information nor is it
suggested that she has made use of such information. Her good faith in
accepting the retainer is not challenged. Good faith, however, does not
eliminate the conflict.

[13]

I turn to the next question, which is whether the fact that this is an appeal
is a consideration that takes this outside the general rule that, having
received confidential information from one party, counsel cannot act for the
opposite party

[14]

Ms. Lang notes that the appeal is on the record, and says that there
will be no attempt to put additional evidence before the Court or, at any rate,
no attempt will be made to put additional evidence before the Court that could
in any way be influenced by confidential information. She emphasizes that the
arguments on an appeal are legal in nature. Her factum has been filed and it
contains nothing that relies on confidential information. Accordingly, she
says, any confidential information that she might have been given is irrelevant
to the appeal.

[15]

I accept that the dangers of misuse of confidential information are very
much attenuated on an appeal. That said, Ms. Sampley, having retained Ms. Lang
for the appeal, has retained her for the purposes of dealing with the
Hague
Convention
matter, at least during the currency of the appeal. Mr. Sampleys
personal situation, his goals in the litigation, and his concerns about the
process may well be of interest should there be discussion of settlement, should
issues of scheduling arise, or should there be a need to canvass appropriate
terms of an order. While I accept that the risks of misuse of confidential
information are attenuated on appeal, they are nonetheless present. In my view,
the general principle that counsel, having received confidential information,
cannot act against the person who has furnished it must be respected. It is
important in this area of the law, as far as possible, to have bright-line
rules so that counsel and their clients are clear on when a retainer can be
accepted and when it cannot be.

[16]

If this matter had been brought before the Court in early December as
planned, I would not have had any hesitation in requiring Ms. Lang to withdraw
due to conflict of interest.

[17]

The question is whether that same situation obtains today, given the
delay in bringing the application. The question is whether I should make an
order requiring Ms. Lang to withdraw given that the inevitable result of such
an order would be to delay the appeal proceeding.

[18]

In the case of
Canadian National Railway Co. v. McKercher LLP
, 2013
SCC 39, the Supreme Court of Canada considered circumstances that might justify
allowing a lawyer to continue to act despite a finding of conflict. The court
said:

65.        [I]n circumstances
where the lawyer-client relationship has been
terminated and there is no
risk of misuse of confidential information, there is generally no longer a
concern of ongoing prejudice to the complaining party. In light of this
reality, courts faced with a motion for disqualification on this third ground
should consider certain factors that may point the other way. Such factors may
include: (i) behaviour disentitling the complaining party from seeking the
removal of counsel, such as delay in bringing the motion for disqualification;
(ii) significant prejudice to the new client's interest in retaining its
counsel of choice, and that party's ability to retain new counsel; and (iii)
the fact that the law firm accepted the conflicting retainer in good faith,
reasonably believing that the concurrent representation fell beyond the scope
of the bright line rule and applicable law society restrictions.

[19]

This is not a case like
McKercher
, where the retainer at issue
was in respect of a completely different matter than the one on which
confidential information was imparted. The retainer in issue here of Ms Lang is
with respect to the same matter  the
Hague Convention
application  on which
she was contacted by Mr. Sampley. Nonetheless, the bright-line rule itself is
not contravened here because there is no concurrent obligation or concurrent
representation. In my view, the court has some discretion to allow Ms. Lang to
continue, notwithstanding a finding of conflict.

[20]

I take into account that, this being an appeal, there is a very limited
possibility of any prejudice resulting from Ms. Lang having confidential
information. The factum has been filed and, as Ms. Lang points out, it does not
in any sense rely on anything that can be said to be confidential. The appeal
is on the record and there is no attempt to bring forward evidence resulting
from confidential disclosures. Thus, there is only a very remote possibility
that the conflict will prejudice the respondent.

[21]

I accept that Ms. Lang accepted the retainer in good faith and that
considerable resources have now been expended on getting the matter ready for
appeal. The factum has been filed and the matter from the appellants point of
view is ready to be heard.

[22]

I am concerned about the delays by the respondent in bringing this
application forward. Those delays have resulted in significant prejudice to the
appellant both because resources have been expended and because the appeal date
will be lost in the event that counsel is required to withdraw.

[23]

In the circumstances, notwithstanding my finding that there is a
conflict, I am satisfied that it is appropriate not to require Ms. Lang to
withdraw from her representation of Ms. Sampley on the appeal.

[24]

I come to that conclusion on the basis that the appeal will be heard on
February 17 and on the representation of Ms. Lang that her retainer will be at
an end once the appeal has been heard. In my view, that latter indication is of
paramount importance. Ms. Lang should not be involved in further proceedings in
this matter. That would include any further hearings in the B.C. Supreme Court,
but it would also include any subsequent appeals beyond the hearing before this
Court. The ruling that I am making is based on the exigency of there being an
appeal scheduled for February 17 and on the very limited relevance of any
confidential information to that particular proceeding.

[25]

In the result, I am dismissing the application for an order that Ms.
Lang withdraw as counsel but I am granting a declaration that she does find herself
in a position of having obtained confidential information which precludes her
from involvement in this matter beyond the current appeal.

[discussion with
counsel re. filing timeline]

[26]

GROBERMAN J.A.
: I am going to direct then that the respondents
factum including the factum of the appellant by cross-appeal be provided to
counsel and filed with the Court no later than the close of business on January
23, 2015.

[27]

Ms. Lang you will then be in a position of filing any reply factum and
the response to the cross-appeal by January 30, 2015.

[28]

Unless I am missing something that would leave only the reply factum on
the cross-appeal. That will be due February 6.

[discussion with
counsel re. costs]

[29]

GROBERMAN J.A.
: I think it is appropriate that each party bear
his or her own costs of the application today.

[30]

Madam Justice Neilson remains the case management judge on this appeal.
I will report to her on the deadlines that I have imposed. I am very hopeful
that no further appearances on case management will be necessary, but if they
are they should be scheduled before Madam Justice Neilson.

The Honourable Mr. Justice Groberman


