Master refuses to bar Ontario lawyer from personal injury case

A master of the Ontario Superior Court has refused to remove defence counsel for an alleged conflict of interest in an unusual personal injury case.

In McCoy v. Loveday, Toronto lawyer Joel McCoy, the plaintiff in the case, tried to have lawyer Harvey Klein barred as acting as defence counsel because of conversations he had with other lawyers at Klein’s firm, Benson Percival Brown LLP.

The underlying action was against the driver of a vehicle in a 2014 accident that allegedly left McCoy with serious injuries. McCoy and his firm have been retained to represent other plaintiffs in a separate action arising out of the same accident.

McCoy had a number of conversations with lawyers at Klein’s firm, including one who had worked directly under Klein, about the companion action before filing his own statement of claim.

In an affidavit, McCoy claimed he was “provided with legal insight” pertaining to issues he discussed with one of the lawyers. In more than three conversations, he said the two discussed the circumstances, facts and legalities around his case.

They also talked about the liability of the defendant and issues concerning the threshold in his case, as well as details of treatment and findings of assessment.

McCoy said that in conversations with a second lawyer, who was employed with Klein’s firm at the time, he discussed the facts pertaining to liability, his injuries and the guilt of the defendant. He claimed that the second lawyer “provided her opinion pertaining to the defendant’s negligence.”

McCoy argued that these conversations gave lawyers at Klein’s firm direct knowledge of his case and that this put Klein in direct conflict in the matter, as well as that of the other injured parties.

Master Donald Short, however, found that such informal conversations at such an early stage did not warrant Klein being removed from the case.

“In my view, if there was any possibility of a misunderstanding, Mr. McCoy owed a duty to his colleagues in the defence bar to make clear that the discussions could lead to his seeking to have their firm disqualified from acting in the matter being discussed,” Short wrote in the decision.

“The plaintiff clearly was generally aware of the personal injury defence retainers of the lawyers with whom he will initiate conversations as in many cases they were acting for insured defendants opposite to him at examinations for discovery or mediations.”

Short found that discussions about the threshold for serious injuries in such accidents would only result in Klein being removed if a potential solicitor-client relationship had been articulated, which it hadn’t. Short said that McCoy was never a client of the lawyers he spoke to and had volunteered the information without indicating he was creating a solicitor-client relationship.

The master also determined that no one had forced McCoy to disclose information and that he was clearly aware of the defence retainers of the lawyers he spoke to.

“Applying proportionality [regarding] the prejudice suffered by a regular client being denied its counsel of choice is greater than the alleged prejudice suffered by the plaintiff,” Short wrote.

Short ordered McCoy to pay partial indemnity costs of $5,000 to the defendant’s counsel.

Neither McCoy nor Klein immediately responded to requests for comment.

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