IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110728

Docket: M083756

Registry:
Vancouver

Between:

Carlos Aurelio
Cantu Caballero

also known as
Carlos Cantu

Plaintiff

And

Christopher James O’Callaghan
and

Timothy Wayne
Wells

Defendants

Before:
The Honourable Madam Justice Loo

Reasons for Judgment

[1]            
This is a disqualification application. The
defendant Timothy Wayne Wells applies for:

1)    a declaration that Slater Vecchio is ineligible to continue to act
as lawyer for the plaintiff;

2)    an order removing Slater Vecchio as lawyer for the plaintiff, or in
the alternative, restraining Slater Vecchio from continuing to act as lawyer
for the plaintiff; and

3)    an order enjoining Slater Vecchio and its members from disclosing
any confidential communication, information or document obtained by any of the
them from the defendant, Timothy Wells.

[2]            
On September 16, 2006 the plaintiff Carlos Cantu
was injured in a single motor vehicle accident near Gibsons Landing on the
Sunshine Coast. Mr. Cantu was a passenger in the vehicle that was owned by
Mr. Wells but driven by Christopher O’Callaghan.

[3]            
Mr. O’Callaghan was an employee of Mr. Wells
who operated a sole proprietorship and shared office space with Mr. Cantu.
The men were on a road trip to the Sunshine Coast when the accident occurred.

[4]            
On August 22, 2008 Slater Vecchio filed a writ
of summons and statement of claim on behalf of Mr. Cantu against Mr. Wells
and Mr. O’Callaghan as defendants. In para. 6 of the statement of
claim, it is alleged that Mr. O’Callaghan acquired the vehicle on
September 16, 2006 with the express or implied consent of Mr. Wells. The
allegations of the particulars of negligence as against Mr. Wells include
in para. 8 as follows:

(b)        Consenting
and/or allowing the defendant O’Callaghan to operate the motor vehicle when he
knew or ought to have known that the defendant O’Callaghan was under the
influence of alcohol;

(c)        Consenting
and/or allowing the defendant O’Callaghan to operate the motor vehicle when he
knew or ought to have known that the defendant O’Callaghan was likely to be
under the influence of alcohol; and

(d)        Consenting
and/or allowing the defendant O’Callaghan to operate the motor vehicle when he
knew or ought to have known that the defendant O’Callaghan had a propensity to operate
a motor vehicle while under the influence of alcohol.

[5]            
The law firm Quinlan Abrioux filed an appearance
on behalf of Mr. Wells on October 20, 2008 and a statement of defence on
October 28, 2008 denying that Mr. O’Callaghan acquired the vehicle with his
consent, and alleging that he drove the vehicle while his ability to drive was
impaired by fatigue, illness, or otherwise.

[6]            
Slater Vecchio scheduled examinations for
discoveries of Mr. Wells on October 20, 2009 and April 8, 2010, but both
times the examinations for discoveries were cancelled by Quinlan Abrioux. The
examinations for discovery were then scheduled for September 21, 2010. At some
point before that examination for discovery Mr. Wells spoke to his wife
about his pending examination for discovery and that Mr. Cantu’s counsel was
Slater Vecchio. Mr. Wells states that his wife who is a lawyer “reminded
me at that time that I had spoken with Slater Vecchio soon after the accident. I
then took steps to raise this conflict of interest”.

[7]            
It was just prior to the examination for
discovery scheduled for September 21, 2010 that Quinlan Abrioux raised the
issue of Mr. Wells’ telephone contact with Slater Vecchio.

[8]            
In or around December 2010 Quinlan Abrioux
provided Slater Vecchio with a statement from Mr. Wells and his cell phone
records showing that he made a telephone call to Slater Vecchio on September
20, 2006. Mr. Well’s statement is not in evidence but the letter of
January 5, 2011 to Mr. Abrioux at Quinlan Abrioux from Mr. Vecchio
who is acting for Mr. Cantu, suggests that Mr. Well’s statement
indicates that the lawyer he spoke to on September 20, 2006 told him that he
should provide a police report. Mr. Vecchio wrote:  “Mr. Wells does
not even have a clear recollection of who he spoke with, what he said or what
he was told. His general recollection is that he was told that his story
sounded like one in which it would be prudent to provide a police report. He
never sought nor retained our firm as counsel, nor (contrary to his suggestion)
would we have offered to act on his behalf in this matter as he was not seeking
to put forward a claim for injuries”. The letter went on to state that the firm
had reviewed its internal file materials and determined that one of the firm’s
paralegals had made notes of receiving a call from Mr. Wells in which he
recounted his story and requested advice or referral to another lawyer to
advise him on how to deal with the accident.

[9]            
On March 7, 2011 Mr. James from Quinlan
Abrioux wrote to Mr. Buckley at Slater Vecchio formally demanding that
Slater Vecchio remove itself as solicitors for the plaintiff on the basis of a
disqualifying conflict of interest.

[10]        
Mr. Well’s notice of application was filed
June 30, 2011.

[11]        
Mr. James for Mr. Wells argues that
one of the reasons why Mr. Wells has brought this application relates to paras. 8(b),
(c), and (d) of the statement of claim and rhetorically asks “where does that
come from?”, inferring that those allegations could only have come from
confidential information that was passed from Mr. Wells to Slater Vecchio
on September 20, 2006. It is argued that within days of the accident Mr. Wells
imparted confidential information to Slater Vecchio concerning consent and
knowledge concerning alcohol consumption. He received legal advice to contact
the Sechelt Detachment of the RCMP and did so. Since then Slater Vecchio seeks
to act against him and raise issues that were the subject of communications
between them. Based on McDonald Estate v. Martin, [1990] 3 S.C.R. 1235,
the disqualification is automatic.

[12]        
It is agreed that on September 20, 2006 Mr. Wells
spoke to Jessica D’Souza a paralegal at Slater Vecchio. It is also agreed that Mr. Wells
never retained Slater Vecchio.

[13]        
The first issue that must be determined is
whether Mr. Wells was ever in communication with Mr. Vecchio.

[14]        
In his first affidavit Mr. Wells deposes in
paras. 7 to 14 :

7. Within days of the accident I realized I
had to act in my own interest as owner of the vehicle. I was advised by the
police and others that I should consider retaining a lawyer.

8. On September 20, 2006, I made telephone
calls to numerous lawyers and law firms. One such firm was Slater Vecchio. I
was referred to Anthony Vecchio by Dr. Paula Iriarte, my wife’s close
friend and doctor.

9. It is my recollection that I spoke with
someone from Slater Vecchio on two occasions on September 20, 2006. It is
possible there was a communication on September 21, 2006. As a result of advice
I received in the first conversation, I made a telephone call to the Sechelt
Detachment of the RCMP. I also called the towing company.

10. It is my recollection that I had a
second communication with Slater Vecchio was also on September 20, 2006
sometime after speaking to the RCMP.

11. I am not certain if my first
communication or my second communication was with Mr. Vecchio, but it is
my belief that it was more likely it was the first communication.

12. By preparing this Affidavit I do not
intend to waive privilege. In my telephone communications with Slater Vecchio I
discussed a number of issues, including consent and knowledge concerning
alcohol consumption. I note that in paragraph 6 of the Statement of Claim Mr. Cantu
alleges I consented to Mr., O’Callaghan acquiring possession of my motor
vehicle. I note that in paragraph 8 of the Statement of Claim Mr. Cantu
makes allegations concerning my knowledge of Mr. O’Callaghan’s alcohol
consumption and use of my vehicle.

13. Slater Vecchio has provided me with
copies of its internal e-mails concerning communications I had with Slater
Vecchio. I have not included these e-mails in my Affidavit as they contain
privileged information concerning issues raised in the Statement of Claim by Mr. Cantu.
These e-mails will be made available at the hearing of this matter…

14. At the
completion of my communications with Slater Vecchio I did not enter into a
written retainer agreement, nor did Slater Vecchio seek compensation. The
matter was left such that if there was some issue with ICBC’s representation of
me then Slater Vecchio could represent me.

[15]        
Mr. Vecchio in his affidavit deposes that
the firm Slater Vecchio focuses on acting for plaintiffs in personal injury
actions. It does not act for defendants in personal injury actions. The firm
makes extensive use of skilled paralegals and file management software. In 2006
and currently, each file is assigned to a paralegal who under the supervision
of a lawyer, is responsible for making and receiving telephone calls, reviewing
correspondence, drafting correspondence and so on. The firm also has a set
procedure for dealing with enquiries from potential clients. The receptionist
has a list of the paralegals who are to deal with new enquiries. When a
potential new client telephones the firm, the receptionist transfers the caller
to the next paralegal on the list. The paralegal will find out from the caller
what the matter concerns, and if necessary, will consult with one of the lawyers
about the enquiry. New callers or enquiries are not transferred in the first
instance by the receptionist to a lawyer.

[16]        
The firm has identified three e-mails from
Jessica D’Souza, a paralegal at Slater Vecchio, who spoke to Mr. Wells on
September 20, 2006. Although Mr. Vecchio disagrees that privilege attaches
to the e-mails, he also did not exhibit the e-mails to his affidavit, but they
were made available to the Court during the hearing of the application.

[17]        
Ms. D’Souza’s first e-mail following her
telephone discussion with Mr. Wells was sent at 3:19 p.m. on Wednesday
September 20, 2006 to Gail de Jager who is Mr. Vecchio’s secretary or
assistant. The e-mail sets out what Mr. Wells told Ms. D’Souza, and goes
on to state that Mr. Wells was seeking advice or referral to another
lawyer. The e-mail does not set out Mr. Wells’ telephone number, cell
phone number, e-mail address, or how he could be reached or contacted.

[18]        
Ms. D’Souza’s second e-mail was sent on
Thursday September 21, 2006 at 10:16 a.m. to Mr. Vecchio with a copy to Ms. de
Jager and essentially set out the same information that was contained in her
first e-mail of September 20, 2006. The second e-mail also contains no
information on how Mr. Wells could be contacted.

[19]        
Mr. Vecchio states that based on the firm’s
procedures and practice, and a review of the e-mails of September 20 and 21,
2006, it appears that the second e-mail was sent because he had not responded
to the first e-mail of September 20, 2008.

[20]        
Ms. D’Souza’s third e-mail was sent at 4:23
p.m. on Thursday September 21, 2006 to Mr. Vecchio and simply sets out Mr. Wells’
telephone number. The inference of course is that Mr. Vecchio had asked Ms. D’Souza
for Mr. Wells’ telephone number or contact information.

[21]        
However, Mr. Vecchio has no recollection of
any telephone conversation with Mr. Wells in September 2006. He has spoken
to the other lawyers at the firm and none of the other lawyers at Slater
Vecchio have any recollection of a telephone conversation with Mr. Wells.

[22]        
The portion of the cell phone records that Mr. Wells’
has produced is page 17 of 20 of his Rogers Wireless account of October 3, 2006.
Page 17 shows that his first call on September 20 was at 2:09 p.m. The
first call on September 21 was an incoming call at 9:16 a.m. for seven
minutes, followed by an outgoing call at 9:23 a.m. for seven minutes. Mr. Wells
may have made calls on September 20 that were earlier than 2:09 p.m., but
if he did, those records have not been produced. However, nothing really turns
on that for the purpose of this application. The records that have been
produced for September 20 disclose that Mr. Wells telephoned five law
firms including a three minute call to Slater Vecchio on September 20, 2006 at 2:57 p.m.
However, less than 45 minutes earlier at 2:57 p.m. he had a ten minute call with
someone at the law firm Murphy Battista. The other law firms he called the same
day were Lawson Lundell, Collins & Cullen, and Jeffrey & Calder. The
records also disclose that there were no calls between Mr. Wells and Slater
Vecchio on September 21, and only the one call on September 20.

[23]        
Mr. Wells states that his calls to Lawson
Lundell were to his wife who was with that firm at that time, and she does did
not practice in the area of motor vehicle personal injury law. Mr. Wells also
states that around that time he was contemplating incorporating his business
and wanted to investigate any impact the accident might have on incorporation,
and that probably explains the calls to the law firms other than Slater
Vecchio.

[24]        
Mr. Wells in his second affidavit in
response to Mr. Vecchio’s affidavit states that his telephone calls to the
Sechelt Detachment of the RCMP and towing company was after a telephone call
with Slater Vecchio. He states that he distinctly recalls being told by a
person who he believed to be a lawyer with Slater Vecchio prior to his calls to
the RCMP, that the “issue of consent” would be “the biggest concern so this
should be made clear to the police and, in fact, my statement should be revised
to indicate that Mr. O’Callaghan ‘stole’ the vehicle”.

[25]        
Based on all of the evidence I conclude that on
September 20 Mr. Wells spoke to someone from the law firm Murphy Battista
for ten minutes before he spoke to Ms. D’Souza for three minutes. The
parties agree that a person might seek advice from Murphy Battista for motor
vehicle related claims but not for corporate commercial advice. I also conclude
it is unlikely that Ms. D’Souza in an initial three minute call (keeping
in mind that Mr. Wells would have first spoken to the receptionist before
he was put through to Ms. D’Souza) would have provided Mr. Wells with
the advice that he claims he thought was provided to him by a lawyer. Ms. D’Souza’s
first e-mail on September 20 outlines what Mr. Wells told her and is fairly
detailed. However, nowhere in the e-mail is there anything relating to the
“issue of consent”, the police, or the making of a statement or revised
statement to the police or the RCMP.

[26]        
Mr. Wells’ recollection is poor. I note
that he does not state whether the person he spoke to on September 20 who he
thought was a lawyer was male or female. That is probably because he cannot
recall.

[27]        
The earliest that Mr. Vecchio could have
spoken to Mr. Wells was after 4:23 p.m. on September 21, 2006 which is
when Ms. D’Souza e-mailed him with Mr. Wells’ telephone number. Until
then nothing in her earlier two e-mails indicated how Mr. Vecchio could
get in touch with or contact Mr. Wells. According to Mr. Wells’
evidence and his cell phone records, by September 21, 2006 at 4:23 p.m. he had
already spoken to the person he thought was a lawyer, and called the Sechelt
RCMP and the Gibsons towing company.

[28]        
I conclude on the whole of the evidence that Mr. Wells never spoke
to Mr. Vecchio.

[29]        
Mr. Wells’ contention that the particulars in paras. 8(b), (c), and
(d) of the statement of claim must have come from the confidential and
privileged information that Mr. Wells provided to Slater Vecchio is
without foundation or merit. Those allegations are common to many if not most
pleadings where there is a claim by a plaintiff injured in a motor vehicle
accident where the driver of the vehicle is not the owner and consent is an
issue.

[30]        
Mr. James for Mr. Wells says that over 1,400 cases have considered McDonald
Estate v. Martin but there are a narrow range of cases that apply to the
circumstances of this case: Clouthier v. Millijour, [1995] B.C.J. No. 1969
(S.C.), Williamson v. Roberts and Griffin (1997), 87 B.C.A.C. 156 (C.A.);
Lukic v. Urquhart (1984), 11 D.L.R. (4th) 638 (Ont. Sup. Ct. (H.C.J.)),
aff’d (1984), 15 D.L.R. (4th) 639 (Ont. C.A.); and Abdul v. Nisha, 2005
BCSC 165, 40 B.C.L.R. (4th) 1.

[31]        
However, I find that the facts in those cases are nowhere close to being
similar to the facts of this case. In Clouthier the lawyer was retained
by both the plaintiff and the defendant and acted for both of them.

[32]        
While it is not suggested that the facts in Williamson are
similar, Mr. James emphasizes para. 14 which refers to the decision
of the Seventh Circuit Court of Appeals in Westinghouse Electric Corporation
v. Kerr-McGee Corporation, 580 F.2d 1311 (1978), which found several
categories or situations where there existed a fiduciary relationship despite
that absence of a solicitor client relationship, including at 1319:

(1) The fiduciary relationship
existing between lawyer and client extends to preliminary consultation by a
prospective client with a view to retention of the lawyer, although actual
employment does not result.

[33]        
It cannot be said that a fiduciary relationship exists between Mr. Wells
and Mr. Vecchio by reason of Mr. Wells’ conversation with Ms. D’Souza
or her e-mails.

[34]        
The facts in Lukic are similar to the facts in Abdul, where
the lawyer acted both for and against the same client at the same time.

[35]        
Lastly it is argued that on the basis of Ms. D’Souza’s e-mail and
presumably the fact that Mr. Vecchio had read the e-mail, he is in receipt
of confidential information and therefore in a position of conflict.

[36]        
The facts in this case fall within what is often referred to in these
types of cases as a “shopping case”. Mr. Wells was looking or shopping for
a lawyer and for legal advice. What he told Ms. D’Souza is most likely
what he told the “numerous” lawyers he contacted on September 20, 2006.

[37]        
A reasonable person informed of all of the facts would not conclude
there is a risk that Mr. Wells will be prejudiced by the information he
provided to Ms. D’Souza or Slater Vecchio, or that anything unjust would
arise.

[38]        
If I am wrong, there are other facts that I can take into account in deciding
whether this application should succeed or whether Mr. Cantu should
maintain his right to be represented by the counsel of his choice. Mr. Wells
has known about this action since at least in or around October 20, 2008 when
Quinlan Abrioux entered an appearance on his behalf. Yet he delayed almost two
years before he first raised the issue of a conflict. Since December 2006
Slater Vecchio has done a significant amount of preparatory work for the trial
which is set for ten days commencing February 6, 2012. Mr. Cantu selected
Slater Vecchio as his counsel. As a result of the injuries he sustained in the
accident, Mr. Cantu had to close his business, has been unable to find
other employment, and is currently working with a vocation counsellor to
consider his future employment options. He has either undergone or expects to
undergo hip surgery with an expected long and painful recovery period. He is
anxious to have the action resolved and move on with his life.

[39]        
However, apart from any delay argument, I conclude that the interests of
justice do not require this Court to remove Slater Vecchio as lawyer for the
plaintiff and the application is dismissed with costs.

“Loo
J.”