Orr v. Alook et al., (2015) 605 A.R. 194 (QB)

• Judge: Moreau, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 19, 2015
• Citations: (2015), 605 A.R. 194 (QB);2015 ABQB 101

Orr v. Alook (2015), 605 A.R. 194 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MR.077

Andrew Orr (appellant/plaintiff) v. James Alook, Sharon Laboucan, Emil Houle, William Houle, Garry Noskiye and Peerless Trout Lake First Nation (respondents/defendants)

(1103 20205; 2015 ABQB 101)

Indexed As: Orr v. Alook et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moreau, J.

February 9, 2015.

Summary:

While employed at the law firm of Parlee McLaws LLP, Kennedy commenced proceedings in 1999 and acted as counsel for individuals residing in the Peerless Lake area in land claims proceedings against both federal and provincial levels of government. Several years after Kennedy ceased to act in those proceedings, Orr retained Kennedy to commence the current lawsuit, seeking compensation from the Peerless Trout First Nation and the individual defendants for work he performed in advancing the land claims lawsuits. The defendants applied to have Kennedy and the law firm with which she practised (Davis LLP) disqualified from acting as counsel for Orr.

A Master of the Alberta Court of Queen's Bench, in a decision reported at (2014), 583 A.R. 156, granted the application to disqualify Kennedy from representing Orr in the lawsuit on the basis that Orr did not displace the presumption that Kennedy received confidential information relevant to issues in the current action while acting as counsel on the prior land claims. The Master also directed that Davis LLP could only continue to act for Orr if it swore under oath as to the existence of ethical screens around the file and entered into undertakings to ensure that such screens would remain in place. Orr appealed. He maintained that based on new evidence filed since the Master granted the disqualification order, it was clear that Kennedy did not obtain or receive any confidential information such as to justify her disqualification.

The Alberta Court of Queen's Bench dismissed the appeal. Counsel for Orr conceded that as there were no ethical walls in place at Davis LLP, it would be a challenge for Davis LLP to continue to act as counsel in the current lawsuit. Accordingly, the disqualification of Kennedy also included Davis LLP.

Barristers and Solicitors - Topic 1619

Relationship with client - Conflict of interest or duties - Situations resulting in a conflict - While employed at the law firm of Parlee McLaws LLP, Kennedy commenced proceedings in 1999 and acted as counsel for individuals residing in the Peerless Lake area in land claims proceedings against both federal and provincial levels of government - Several years after Kennedy ceased to act in those proceedings, Orr retained Kennedy to commence the current lawsuit, seeking compensation from the Peerless Trout First Nation (PTFN) and the individual defendants for work he performed in advancing the land claims lawsuits - Orr claimed he was to receive compensation pursuant to a 1991 agreement for work he performed in assisting the PTFN to achieve formal recognition - The defendants contended that they were not parties to the 1991 agreement and that the PFTN did not exist as a recognized or legal entity at the time of the 1991 agreement and therefore could not enter into a legally binding contract with Orr - The defendants applied to have Kennedy and the law firm with which she practised (Davis LLP) disqualified from acting as counsel for Orr - A Master granted the application to disqualify Kennedy from representing Orr in the lawsuit - The Master directed that Davis LLP could only continue to act for Orr if it swore under oath as to the existence of ethical screens around the file and entered into undertakings to ensure that such screens would remain in place - Orr appealed - He maintained that based on new evidence it was clear that Kennedy did not obtain or receive any confidential information such as to justify her disqualification - The Alberta Court of Queen's Bench dismissed the appeal - The current lawsuit was related to the land claims proceedings with regard to the genesis of the PTFN, a matter potentially relevant to the defences raised by the defendants - Orr had not rebutted the presumption that confidential information was obtained or received by Kennedy in the course of her retainer in the land claims proceedings - Counsel for Orr conceded that as there were no ethical walls in place at Davis LLP, it would be a challenge for Davis LLP to continue to act as counsel in the current lawsuit - Accordingly, the disqualification of Kennedy also included Davis LLP.

Barristers and Solicitors - Topic 1620.6

Relationship with client - Conflict of interest or duties - Burden of proof - [See Barristers and Solicitors - Topic 1619 ].

Cases Noticed:

Canadian National Railway Co. v. McKercher LLP - see Wallace v. Canadian Pacific Railway et al.

Wallace v. Canadian Pacific Railway et al. (2013), 446 N.R. 1; 423 Sask.R. 1; 588 W.A.C. 1; 2013 SCC 39, refd to. [para. 17].

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. [para. 17].

Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd. et al. (2008), 263 N.S.R.(2d) 272; 843 A.P.R. 272; 2008 NSCA 22, refd to. [para. 19].

Bahcheli v. Yorkton Securities Inc. et al. (2012), 524 A.R. 382; 545 W.A.C. 382; 2012 ABCA 166, refd to. [para. 24].

Gudzinski Estate v. Allianz Global Risks US Insurance Co. et al. (2012), 519 A.R. 215; 539 W.A.C. 215; 2012 ABCA 5, refd to. [para. 24].

Authors and Works Noticed:

Law Society of Alberta, Code of Conduct, version 2013_V1, ss. 2.04(1), 2.04(4) [para. 18].

Counsel:

James Heelan, Q.C., for the appellant/plaintiff;

Mona T. Duckett, Q.C., and Drew R. Blaikie, for the respondents/defendants.

This appeal was heard on January 19, 2015, before Moreau, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on February 9, 2015.