Orr v Alook

Background

In 1999, the Cree of the Peerless Lake region of Alberta, including the appellant, retained a lawyer, Ms. Kennedy, to represent them in a land claims proceeding against the federal and provincial governments. The land claims proceeding was brought “on behalf of the Cree Indians of Peerless Lake, of Trout Lake, and of God’s Lake, the Peerless Lake Indian Band, and the Trout Lake Indian Band” and ultimately resulted in their recognition as the Peerless Trout First Nation (PTFN). In 2005, Ms. Kennedy left the law firm representing the Peerless Lake Cree community and had no further involvement in the land claims proceeding.

By 2012, Ms. Kennedy was representing the appellant in a lawsuit seeking compensation from PTFN, as well as several individual respondents, for uncompensated work that the appellant performed in order to advance the Peerless Lake land claims proceedings. The appellant sued the respondents for defamation and breach of fiduciary duty, in addition to claiming compensation pursuant to a memorandum of agreement signed in 1991 by a committee of Peerless Lake Cree tasked with pursuing the land claims.

The respondents successfully applied for a Master in Chambers to dismiss the appellant’s claims for defamation and breach of fiduciary duty. However, Master Schlosser of the Court of Queen’s Bench found that the appellant’s claim for compensation under the 1991 agreement was not plainly and obviously doomed to fail.

Following this decision, Ms. Kennedy raised the issue of there being a potential conflict of interest at the law firm representing the respondents. Counsel for the respondents, in turn, suggested that Ms. Kennedy herself might be in a conflict of interest in representing the appellant against PTFN.

Master in Chamber’s decision to disqualify counsel

In July 2013, the respondents changed to a new law firm and their new legal counsel applied to have both Ms. Kennedy and her firm disqualified from acting for the appellant in this matter. Master Schultz of the Court of Queen’s Bench ordered that Ms. Kennedy be disqualified from acting for the appellant and directed that her law firm could only continue to represent the respondent if it swore an oath that ethical screens existed around the file and entered into undertakings to keep those screens in place.

There was some dispute over whether PTFN was in fact Ms. Kennedy’s former client, since at the time she represented the Peerless Lake Cree community they were not yet recognized as a First Nation. However, Master Schultz found that it was not necessary for her to decide this issue since the Law Society’s Code of Conduct prohibited conflicts of interest that might adversely affect not only a lawyer’s client or former client, but also third parties.

Master Schultz held that the relevant test for whether Ms. Kennedy should be disqualified was whether it was reasonably possible that she might have acquired confidential information in her first retainer that could be relevant to the current matter. Master Schultz noted that similar to the land claims proceeding, the appellant’s current action would require Ms. Kennedy to deal with evidence of the genealogical histories of the Cree of Peerless Lake to establish their connection to PTFN. Master Schultz also concluded that there was unchallenged evidence that Ms. Kennedy had acquired confidential information during her retainer for the land claims proceeding with respect to the genealogy and history of the Cree of Peerless Lake, and that there was a “very high” risk that this confidential information would be used in the current lawsuit.

Decision on appeal

The appellant asserted that Ms. Kennedy had not acquired any confidential information while working on the land claims proceedings and that her files at both her previous and current firm had been behind a “Chinese Wall”. It was argued that the only genealogical information that Ms. Kennedy accessed came from the publicly accessible National Archives or filed expert witness statements that were now publicly accessible on the Federal Court file from the land claims proceedings. The appellant further argued that Ms. Kennedy had never met any of the named respondents while working on the land claims file.

The respondents pointed to various alleged inaccuracies and contradictions in Ms. Kennedy’s evidence to argue that her memory of the land claims proceedings was not accurate. They also noted that although the genealogical information may have once been publicly available through the National Archives this was no longer the case.

The Court of Queen’s Bench held that once it is established that a previous relationship existed which is sufficiently related to counsel’s current retainer, the Court should infer that confidential information was imparted to counsel unless they can provide sufficient evidence to show that no information was imparted that could be relevant to their current retainer. The Court stated that the onus on the appellant to overcome the presumption that confidential information was imparted or collected by Ms. Kennedy in the land claims proceedings was a “heavy one”.

The Court noted that there were legitimate concerns with the reliability of the appellant’s evidence in support of Ms. Kennedy remaining counsel in this matter and found that Ms. Kennedy had accessed genealogical information that was no longer publicly available. It further held that the appellant had failed to rebut the presumption that Ms. Kennedy was imparted with confidential information relevant to the current matter and dismissed the appeal. The Court also included Ms. Kennedy’s law firm in the order for disqualification based on evidence that there were no ethical walls in place.