In Robert Day v. Norwood Foundry Limited (2012 ABQB 186), the plaintiff sued his former employer, Norwood, for wrongful dismissal. Norwood brought an application seeking to prohibit the plaintiff’s lawyer from representing him, since that lawyer had previously represented Norwood in a similar action involving another former employee.
The Court held that the lawyer could be disqualified from representing the plaintiff if: (a) he received confidential information which would be relevant to the current action while he was in a solicitor-client relationship with Norwood because of the previous action; and (b) such information would be used to the prejudice of Norwood. The lawyer argued that any information provided in the previous matter was not confidential as the plaintiff was the chief instructing officer for Norwood in the previous matter. Thus any information held by the lawyer would be equally held by the plaintiff and there would be no privilege attaching to the plaintiff’s information.
The court rejected this argument as it was impossible to say that the plaintiff would have known all of the material information held by the lawyer regarding the previous action. Accordingly, the Court found that the lawyer did possess confidential information, such as Norwood’s preferred approach to litigation and settlement. Regarding whether this confidential information would be used to the prejudice of Norwood, the Court held that where the same lawyer who acted for a client, later acts against them, disqualification is automatic. Therefore, whether or not the information would prejudice Norwood was irrelevant because a lawyer “cannot compartmentalize his or her mind”. As a result, the lawyer was disqualified and the dismissed employee was forced to seek new counsel.
Robert Day v. Norwood Foundry Limited, http://canlii.ca/t/fqq5v