Removing counsel for breach of privilege

Today's important Court of Appeal decision in Stewart v.  Humber River Regional Hospital, 2009 ONCA 350 deals with the issue of removing counsel who has come into possession of privileged material of a party opposite. Briefly put, such lawyer cannot continue to act:

[22]          The central issue is whether counsel for the appellants were properly found to be in possession of relevant solicitor-client information to which they have no claim of right such that they must be removed as the appellants' solicitor of record. The approach to this issue must be guided by the principles enunciated by the Supreme Court of Canada in MacDonald Estate and Celanese.

[23]          The starting point is that the courts have an inherent supervisory jurisdiction that extends to the removal of solicitors from the record where their conduct of legal proceedings would adversely affect the administration of justice (MacDonald Estate, at p. 1245).

[24]          Where solicitor-client information comes into the possession of the opposing party this creates a serious risk to the integrity of the administration of justice. The court in Celanese put it this way at paragraph 34:

Whether through advertence or inadvertence the problem is that solicitor-client information has wound up in the wrong hands. Even granting that solicitor-client privilege is an umbrella that covers confidences of differing centrality and importance, such possession by the opposing party affects the integrity of the administration of justice. Parties should be free to litigate their disputes without fear that their opponent has obtained an unfair insight into secrets disclosed in confidence to their legal advisors. The defendant's witnesses ought not to have to worry in the course of being cross-examined that the cross-examiner's questions are prompted by information that had earlier been passed in confidence to the defendant's solicitors. Such a possibility destroys the level playing field and creates a serious risk to the integrity of the administration of justice. To prevent such a danger from arising, the courts must act 'swiftly and decisively' as the Divisional Court emphasized. Remedial action in cases such as this is intended to be curative not punitive.

[25]           In short, if the public loses faith that communications between lawyer and client will be kept confidential and will not be used to the advantage of the adversary, this loss of faith would deliver a serious blow to the integrity of the legal profession and to the public's confidence in the justice system.
James Morton
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