Alberta Union of Provincial Employees v. United Nurses of Alberta, Local 168 et al., (2009) 448 A.R. 101 (CA)

• Judge: Conrad, Berger and Slatter, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 25, 2008
• Citations: (2009), 448 A.R. 101 (CA);2009 ABCA 33

AUPE v. United Nurses (2009), 448 A.R. 101 (CA);

      447 W.A.C. 101

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JA.165

Alberta Union of Provincial Employees (appellant/applicant) v. United Nurses of Alberta, Local 168 and Labour Relations Board (respondent/respondent)

(0803-0221-AC; 2009 ABCA 33)

Indexed As: Alberta Union of Provincial Employees v. United Nurses of Alberta, Local 168 et al.

Alberta Court of Appeal

Conrad, Berger and Slatter, JJ.A.

January 23, 2009.

Summary:

The United Nurses of Alberta (UNA) was a longstanding client of a law firm. With UNA's consent, the firm agreed to accept retainers from the Alberta Union of Provincial Employees (AUPE) which also worked in the healthcare sector (the consent agreement). However, UNA was to be the "primary" client and if a conflict arose between AUPE and UNA, the firm was to cease acting for AUPE. Thereafter, the firm applied on UNA's behalf for a determination by the Alberta Labour Relations Board that three licensed practical nurses in a bargaining unit represented by AUPE should be included in a bargaining unit represented by UNA. AUPE asserted that the firm's previous retainer with AUPE prevented the firm from representing UNA on the application. The firm ceased acting for AUPE. AUPE withdrew any consent it had previously given to the arrangement and applied to disqualify the firm from acting for UNA on the application. The Board held that in light of the consent agreement, the firm was not in breach of any fiduciary duty of loyalty (the first decision) and that there was an insufficient relationship between AUPE's and UNA's retainers to raise a rebuttable presumption that relevant confidential information had passed (the second decision). Accordingly, the Board dismissed the application. The Board reconsidered and affirmed its decisions. AUPE applied for judicial review.

The Alberta Court of Queen's Bench, in a decision reported at [2008] A.R. Uned. 470, dismissed the application. AUPE appealed.

The Alberta Court of Appeal, Berger, J.A., dissenting, dismissed the appeal.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - An appellant asserted that the standard of review for a labour board's determination of a conflict of interest had already been determined by the Ontario Divisional Court - The Alberta Court of Appeal stated that while the Ontario decision was of interest and informative, it was not binding in Alberta and therefore did not set the standard of review in Alberta in the way contemplated by the Supreme Court of Canada in New Brunswick (Board of Management) v. Dunsmuir - See paragraph 21.

Barristers and Solicitors - Topic 1555

Relationship with client - Duty to client - General - Respecting independent legal advice - A law firm with an expertise in labour law agreed to accept retainers from the Alberta Union of Provincial Employees (AUPE) (the consent agreement) - However, its longstanding client, the United Nurses of Alberta (UNA), was to be the "primary" client and if a conflict arose between AUPE and UNA, the firm was to cease acting for AUPE - Thereafter, the firm applied on UNA's behalf for a determination by the Labour Relations Board that three nurses in a bargaining unit represented by AUPE should be included in a bargaining unit represented by UNA (the bargaining unit application) - AUPE purported to withdraw its consent to the firm acting for both AUPE and UNA and applied to disqualify the firm from acting for UNA on the application - The application was dismissed - Judicial review was denied - AUPE appealed, pointing to the requirement that consent be obtained after full disclosure, preferably after the client received independent legal advice - AUPE asserted that full disclosure was not made because, when the consent agreement was made, no one had contemplated the bargaining unit application - The Alberta Court of Appeal rejected the assertion - In effect AUPE was arguing that the firm was unable to act unless it received AUPE's consent to bring that very application - Requiring that level of disclosure would render generic advance consents impossible - Although neither client received independent legal advice, they were sophisticated litigators - The level of disclosure, and the circumstances under which the consent was obtained, were sufficient to make the consent valid - An essential element of the agreement was that, if a conflict occurred, the firm could continue to act for UNA - This could not be undermined by AUPE's withdrawal of its consent - See paragraphs 33 to 38.

Barristers and Solicitors - Topic 1601.2

Relationship with client - Conflict of interest or duties - Waiver - [See Barristers and Solicitors - Topic 1555 ].

Barristers and Solicitors - Topic 1601.2

Relationship with client - Conflict of interest or duties - Waiver - The Alberta Court of Appeal stated that a generic consent (express or by acquiescence) that a law firm could continue to act for two clients who were potentially adverse in interest was not contrary to any principle of public policy - Choice of counsel was a value to be protected - There was no reason to hold such a generic consent to be ipso facto ineffectual - See paragraph 33.

Barristers and Solicitors - Topic 1601.2

Relationship with client - Conflict of interest or duties - Waiver - A law firm agreed to accept retainers from the Alberta Union of Provincial Employees (AUPE) (the consent agreement) - However, if a conflict arose between AUPE and the firm's longstanding client, the United Nurses of Alberta (UNA), the firm was to cease acting for AUPE - The agreement, which was agreed to by UNA, did not address confidential information - The Alberta Court of Appeal stated that, absent a particular consent to the contrary, it should be assumed that the firm agreed to take reasonable internal steps to protect the detailed confidential information of each client - It also had to be assumed that both clients agreed that the mere fact that the firm from time to time would have confidential information from both clients would not disqualify it from acting - Ordinarily, all information given to a lawyer would be considered to be privileged and the client could enforce the lawyer's obligation to keep it confidential - However, where the client consented to multiple representation, the client's ability to keep more generic information confidential might be reduced - Here, the mere fact that AUPE might have discussed with the firm in general terms its institutional strategies would not override the consent given - See paragraphs 39 and 40.

Barristers and Solicitors - Topic 1601.2

Relationship with client - Conflict of interest or duties - Waiver - The Alberta Court of Appeal stated that a law firm acting for multiple clients with express consent should still be presumed to have a duty to keep each client's confidential information confidential, and to ensure that it was not misused - However, some of the presumptions set out in MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd. (S.C.C.) no longer operated with full vigour - Particularly, where different lawyers were acting for the different clients, the rule that information known to one lawyer was presumed to be known by the whole firm, and was presumed to be passed on, was less compelling - The clients had to have consented to that state of affairs, even if they did not consent to the misuse of their confidential information - Where there was express consent to act for two clients, the mere existence of confidential information should not raise a presumption that it had been passed to another lawyer or misused to the client's detriment - This was particularly so where there were a limited number of counsel practising in a specialized field - Likewise, the burden of proof on the lawyer set out in MacDonald Estate was inappropriate in cases of express consent - There was no basis to presume that confidential information had been or would be misused where all the clients had consented - The problems of public perception and an objecting client no longer prevailed in the face of express consent - As such, arguably the burden of proving potential misuse of information or other prejudice should initially be on the client - See paragraphs 42 and 43.

Barristers and Solicitors - Topic 1601.2

Relationship with client - Conflict of interest or duties - Waiver - A law firm agreed to accept retainers from the Alberta Union of Provincial Employees (AUPE) (the consent agreement) - However, its longstanding client, the United Nurses of Alberta (UNA), was to be the "primary" client and if a conflict arose between AUPE and UNA, the firm was to cease acting for AUPE - Thereafter, the firm applied on UNA's behalf for a determination by the Labour Relations Board that three nurses in a bargaining unit represented by AUPE should be in a bargaining unit represented by UNA (the bargaining unit application) - AUPE applied to disqualify the firm from acting for UNA on the application - In dismissing the application, the Board assumed that some confidential information had passed and had been shared by the lawyers acting for AUPE and UNA - However, the Board concluded that the bargaining unit application was factually based and the two retainers were not sufficiently connected to raise an inference that confidential information had been compromised - The Alberta Court of Appeal stated that the Board erred by applying the presumptions set out in MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd. (S.C.C.) as if they were directly transferable to a case where the client had expressly consented to the lawyer acting - However, it erred in favour of AUPE - To the extent that it placed some onus on AUPE to show a reasonable possibility that confidential information had been compromised, it did not err - Further the characterization of the nature of the labour law issues was directly within the Board's expertise - Its decision on that issue was reasonable - Accordingly, any confidential information that AUPE might have given the firm did not disqualify the firm from acting for UNA - If a conflict had been found it would have been inappropriate to disqualify the firm absent evidence of demonstrable prejudice to AUPE - See paragraphs 39 to 51.

Barristers and Solicitors - Topic 1618

Relationship with client - Conflict of interest or duties - Remedies - [See fifth Barristers and Solicitors - Topic 1601.2 ].

Barristers and Solicitors - Topic 1620.6

Relationship with client - Conflict of interest or duties - Burden of proof - [See fourth and fifth Barristers and Solicitors - Topic 1601.2 ].

Barristers and Solicitors - Topic 1625

Relationship with client - Duty of confidentiality (or professional secrecy) - Waiver by client - [See third, fourth and fifth Barristers and Solicitors - Topic 1601.2 ].

Courts - Topic 53

Stare decisis - Authority of judicial decisions - Courts of co-ordinate jurisdiction - Provincial appellate courts - [See Administrative Law - Topic 3202 ].

Labour Law - Topic 576

Labour relations boards and judicial review - Judicial review - Standard of review - The Alberta Labour Relations Board dismissed an application to remove a law firm from the record on the basis of a conflict interest - An application for judicial review was dismissed - The applicant appealed - The Alberta Court of Appeal stated that the standard of review for the setting of the rules respecting conflicts of interest of lawyers was correctness - The Board's findings of fact underlying this issue of law were entitled to deference and were reviewable on the standard of reasonableness - Where the basic rules had a particular application in the labour law context, raising mixed questions of fact and law, deference was also appropriate - The standard of review on all other issues was reasonableness - See paragraphs 13 to 26.

Cases Noticed:

Extendicare (Canada) Inc., Re, [2007] Alta. L.R.B.R. LD-052, refd to. [para. 4].

Capital Health #1 - see Health Sciences Association of Alberta, Re.

Health Sciences Association of Alberta, Re, [2006] Alta. L.R.B.R. 70; 151 C.L.R.B.R.(2d) 233, refd to. [paras. 6, 54].

Capital Health, Re, [2006] Alta. L.R.B.R. LD-051; 151 C.L.R.B.R.(2d) 272, refd to. [para. 9].

R. v. Neil (D.L.), [2002] 3 S.C.R. 631; 294 N.R. 201; 317 A.R. 73; 284 W.A.C. 73; 2002 SCC 70, refd to. [para. 13].

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241, refd to. [paras. 13, 53].

Alberta Union of Provincial Employees, Re, [2008] Alta. L.R.B.R. 59, refd to. [para. 15].

Alberta Union of Provincial Employees, Re, [2008] Alta. L.R.B.D. LD-028, refd to. [para. 17].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 20].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 20].

Universal Workers Union, Labourers' International Union of North America, Local 183 v. Labour Relations Board (Ont.) - see Weiss et al. v. Labour Relations Board (Ont.) et al.

Weiss et al. v. Labour Relations Board (Ont.) et al. (2007), 222 O.A.C. 229; 59 Admin. L.R.(4th) 226 (Div. Ct.), refd to. [para. 21].

International Longshoremen's and Warehousemen's Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., [1996] 2 S.C.R. 432; 198 N.R. 99, refd to. [para. 22].

International Association of Machinists and Aerospace Workers, Local Lodge No. 99 v. Finning International Inc. et al. (2007), 422 A.R. 301; 415 W.A.C. 301; 80 Alta. L.R.(4th) 205; 2007 ABCA 319, refd to. [para. 22].

Alberta Union of Provincial Employees v. Provincial Health Authorities (Alta.) et al. (2006), 412 A.R. 148; 404 W.A.C. 148; 67 Alta. L.R.(4th) 203; 2006 ABCA 356, refd to. [para. 22].

Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters et al. (2007), 412 A.R. 97; 404 W.A.C. 97; 79 Alta. L.R.(4th) 201; 2007 ABCA 198, leave to appeal granted  [2008] 1 S.C.R. vii;  385 N.R 398, refd to. [para. 22].

ATCO Gas and Pipelines Ltd. v. Sheard (2003), 320 A.R. 339; 288 W.A.C. 339; 10 Alta. L.R.(4th) 222; 2003 ABCA 61, refd to. [paras. 22, 64].

British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739; 183 N.R. 184, refd to. [para. 24].

3464920 Canada Inc. v. Strother et al., [2007] 2 S.C.R. 177; 363 N.R. 123; 241 B.C.A.C. 108; 399 W.A.C. 108; 2007 SCC 24, refd to. [paras. 27, 61].

Chiefs of Ontario v. Ontario, [2003] O.T.C. 133; 63 O.R.(3d) 335 (Sup. Ct.), refd to. [para. 28].

R. v. Parsons (G.J.) (1992), 100 Nfld. & P.E.I.R. 260; 318 A.P.R. 260; 72 C.C.C.(3d) 137 (Nfld. C.A.), refd to. [para. 30].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 32].

F.H. v. McDougall (2008), 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 297 D.L.R.(4th) 193; 2008 SCC 53, refd to. [para. 32].

Operative Plasterers' and Cement Masons' International Association of the United States and Canada, Local 222 et al. v. Alberta et al. (2008), 444 A.R. 148; 91 Alta. L.R.(4th) 230; 2008 ABQB 225, refd to. [para. 42].

Davey v. Woolley, Hames, Dale & Dingwall (1982), 35 O.R.(2d) 599 (C.A.), refd to. [para. 59].

McWaters v. Coke (2005), 16 R.F.L.(6th) 271; 2005 ONCJ 73, refd to. [para. 59].

R. v. Moore (D.C.), [2004] A.R. Uned. 364; 45 Alta. L.R.(4th) 139; 2004 ABQB 345, refd to. [para. 60].

Hudson v. Hudson (1993), 142 A.R. 236 (Q.B.), refd to. [para. 60].

Merry v. Schenk, [1995] O.J. No. 907, refd to. [para. 60].

Skjerpen v. Johnson et al., [2007] B.C.T.C. Uned. E59; 2007 BCSC 1290, refd to. [para. 63].

Authors and Works Noticed:

Canadian Bar Association, Task Force on Conflicts of Interest, Final Report (2008), pp. 105, 106 [para. 34]; 142, 146, 147, 148 [para. 29].

Law Society of Alberta, Code of Professional Conduct, c. 6, rules 3(a), 3(b) [para. 57]; sect. 4(f), sect. 4(i) [para. 58].

Law Society of Upper Canada, Code of Professional Conduct, rule 2.04(3) [para. 59].

Painter, R.W., Advance Waiver of Conflicts (1999-2000), 13 Georgetown J. Legal Ethics 289, pp. 297 to 304 [para. 31]; 305 [paras. 31, 34]; 312, 313 [para. 34]; 319 [para. 40]; 328 [para. 43].

Counsel:

S.M. Renouf, Q.C., and M.S. Desbarats, for the appellant/applicant;

D.R. Cranston, Q.C., and S.A. Roberts, for the respondent/respondent.

This appeal was heard at Edmonton, Alberta, on November 25, 2008, by Conrad, Berger and Slatter, JJ.A., of the Alberta Court of Appeal. The judgment of the court was delivered on January 23, 2009, with the following opinions:

Slatter, J.A. (Conrad, J.A., concurring) - see paragraphs 1 to 51;

Berger, J.A., dissenting - see paragraphs 52 to 65.