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Decision No. 034IN THE MATTER OF AN APPLICATION FOR CERTIFICATION FILED BY THE FEDERATION OF THE ASSOCIATION DES PROFESSIONNELLES ET DES PROFESSIONNELS DE LA VIDÉO DU QUÉBEC (APVQ) AND THE SYNDICAT DES TECHNICIENS DU CINÉMA ET DE LA VIDÉO DU QUÉBEC (STCVQ) Interim decision of the Tribunal The Tribunal declares that Francine Bousquet and all the lawyers at the law firm of Sauvé et Roy are disqualified from representing the APASQ in its application for certification of the federation of the APVQ and the STCVQ.
REASONS FOR DECISION 1310-96-0026A: In the matter of an application for certification filed by the federation of the Association des professionnelles et des professionnels de la vidéo du Québec (APVQ) and the Syndicat des techniciens du cinéma et de la vidéo du Québec (STCVQ) BACKGROUND [1] This decision concerns a request made by the federation of the Association des professionnelles et des professionnels de la vidéo du Québec ("APVQ") and the Syndicat des techniciens du cinéma et de la vidéo du Québec ("STCVQ") (hereinafter "APVQ-STCVQ" or "the federation") for an order declaring that Francine Bousquet and all the lawyers of the law firm Sauvé et Roy are disqualified from appearing in this matter. SUBMISSIONS OF THE PARTIES The federation [2] The federation submits that Ms. Bousquet and the law firm Sauvé et Roy have a conflict of interest regarding their representation of the intervenor, the Association des professionnels des arts de la scène du Québec (CSN) ("APASQ"). This assertion is based on the fact that between 1996 and 1999, Ms. Bousquet and Sauvé et Roy represented the APVQ in its original application for certification. The APVQ continued to be represented by Sauvé et Roy until 1999. Ms. Bousquet worked as a lawyer at Sauvé et Roy from 1989 to 1997, and since then she has been working as a labour relations adviser for the Fédération nationale des communications ("the FNC"). From 1997 to 1999, Ms. Bousquet worked on the APVQ file in her capacity as a labour relations advisor. During that time, Sauvé et Roy continued to represent the APVQ. [3] In 1999, the APVQ transferred its file to the firm of Boivin Payette and terminated the mandates of Sauvé et Roy and Ms. Bousquet. Subsequently, in 2000, the APVQ together with the STCVQ as a federation filed an amended application for certification. APASQ, Ms. Bousquet and Sauvé et Roy [4] Éric Lévesque, of the firm Sauvé et Roy, responded on behalf of the APASQ, Ms. Bousquet and Sauvé et Roy. In his submission, neither Sauvé et Roy nor Ms. Bousquet have acted as counsel for the APVQ or for the federation before the Tribunal, nor are they in possession of any confidential information concerning the APVQ or the federation in this case. He maintains that, although Sauvé et Roy and Ms. Bousquet had acted as agents for the APVQ in the past, they were never agents for the federation; therefore, no previous relationship exists between them and the federation. The APASQ's interests are not adverse to the federation's interests; there is therefore no "matter" between the parties. The only issue that might arise between them is that of a jurisdictional overlap. The federation's reply [5] In its reply, the federation submits that there is no basis for the contention by Sauvé et Roy that it has never represented the federation and that there is therefore no conflict of interest: although the APVQ has formed a federation with the STCVQ, it is still a separate entity and is directly affected by the conflict of interest. THE ISSUES [6] The federation's application raises the following two issues:
STATUS OF THE ARTIST ACT [7] The relevant provisions are as follows:
ANALYSIS AND FINDINGS Jurisdiction of the Tribunal [8] No objection was raised regarding the Tribunal's jurisdiction to disqualify a party's representative . The Tribunal nonetheless considered this issue to satisfy itself that it does have jurisdiction to do so. Section 17 of the Status of the Artist Act sets out the powers of the Tribunal in relation to proceedings before it. Nothing in that provision deals with the issue raised in this case. However, subsection 19(3) states that "anyone appearing before the Tribunal may be represented by counsel or an agent". In Booth v. Huxter (1994), 16 O.R. (3d) 528 (Ont. Gen. Div.), the Court construed a similar provision in the Ontario Coroners Act as follows (at p. 544):
[9] Furthermore, in Kirsch v. Royal Lepage Real Estate Services Ltd., [1993] B.C.C.H.R.D. no. 32, the British Columbia Council of Human Rights found that it had jurisdiction to disqualify a lawyer by reason of a conflict of interest; it held that administrative tribunals have "inherent" jurisdiction to determine the fairness of their procedures and that this jurisdiction should be exercised in the interests of justice, fairness and administrative efficiency. [10] The Tribunal is of the view that the finding that it has jurisdiction to make a declaration of disqualification may rest on either subsection 19(3) or its ancillary jurisdiction. Based on Booth v. Huxter and Kirsch v. Royal Lepage Real Estate Services Ltd., the Tribunal concludes that it has jurisdiction to declare a representative to be disqualified by reason of a conflict of interest. Is there a conflict of interest? [11] The Supreme Court of Canada established the test for determining whether a lawyer or law firm has a disqualifying conflict of interest in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235. The Court held that the confidentiality of information passing between a solicitor and his or her client is of paramount importance (at p. 1244):
[12] The Court adopted the "possibility of real mischief standard. The test to determine whether a conflict of interest is such as would disqualify a lawyer from acting against a former client is as follows (at pp. 1260-1261):
[13] The Court then considered whether all the lawyers in a law firm are disqualified from representing a party against a former client of one of the lawyers in the firm (at pp. 1262-1263):
[14] The Tribunal's file indicates that two lawyers from the law firm of Sauvé et Roy, Mr. Vallée and Mr. Lavergne, handled the APVQ's application for certification from 1996 to 1999. In light of that, there is an inference that these two lawyers and all the other lawyers at Sauvé et Roy received confidential information that is closely connected to the "matter at hand". This inference includes Ms. Bousquet, since she was a lawyer with Sauvé et Roy during that time period. The fact that she now works for the FNC as a labour relations advisor and not as a lawyer has no effect on this finding. The principle here is that substance prevails over form. [15] The Tribunal is of the view that the fact that the APVQ has formed a federation with the STCVQ does not alter this finding. Although the two associations have formed a federation, the APVQ is still a separate entity and can still be affected by a conflict of interest. The application for certification filed by the APVQ-STCVQ federation reproduces in part the APVQ's original application. For these reasons, the presumption that the lawyers at Sauvé et Roy and Ms. Bousquet received confidential information still applies to the APVQ, regardless of the fact that it has formed a federation with the STCVQ. [16] The Tribunal should draw the inference, unless satisfied, on the basis of clear and convincing evidence, that all reasonable measures have been taken to prevent confidential information from being disclosed to the lawyers at Sauvé et Roy or to Ms. Bousquet. Mr. Lévesque did not suggest that any measure of that kind had been taken. Therefore we find that all the lawyers with Sauvé et Roy, as well as Ms. Bousquet, who worked at Sauvé et Roy during the relevant time period, "receive[d] confidential information attributable to a solicitor and client relationship relevant to the matter at hand". [17] Accordingly, neither the lawyers at Sauvé et Roy nor Francine Bousquet may act against the APVQ. Mr. Lévesque argued that there is no "matter" between the APVQ and the APASQ. He conceded, however, that their interests might be adverse on the issue of whether there is a jurisdictional overlap. The Tribunal is of the view that this issue creates a "matter" between the federation and the APASQ and that, as a result, both the lawyers at Sauvé et Roy and Francine Bousquet are disqualified from representing the APASQ in this case. DECISION [18] The Tribunal declares that Francine Bousquet and all the lawyers in the law firm of Sauvé et Roy are disqualified from representing the APASQ in its intervention in the application for certification of the federation of the APVQ and the STCVQ. Ottawa, 8 March 2001
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Created: 2005-07-27 Updated: 2005-12-01 |
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