BARRISTERS AND SOLICITORS |
Society of Composers, Authors and Music Publishers of Canada v. Landmark Cinemas of Canada Ltd.
T-633-92
Aronovitch P.
2/10/00
20 pp.
Motion to remove Gowling, Lafleur & Henderson as solicitors of record--Main action for infringement of copyright--Plaintiff performing rights society granting licences for performance of musical works in repertoire--Commenced action in 1992 alleging Landmark Cinemas of Canada Ltd., operator of motion picture theatres, performed, continues to perform plaintiff's works without licence, payment of performance rights fees--Grounds for defendant's motion direct telephone communications taking place unbeknownst to Landmark's counsel between Ms. Melany Peech, member of Gowling, and Brian F. McIntosh, director and officer of corporate defendant, and two staff members--Ms. Peech's telephone calls relating to operation, management of certain theatres, relationship to defen-dant--At time she contacted defendant, Ms. Peech student-at-law working out of Gowling's Calgary office, acting on instructions of Robert Housman, barrister and solicitor in same Calgary office--Codes of professional conduct governing barristers and solicitors provide lawyer aware party adverse in interest represented by counsel must not communicate with party regarding substance of controversy between parties otherwise than with consent of opposing counsel--Applicable test whether on facts, fair-minded, reasonably informed member of public would conclude proper administration of justice requires disqualification of solicitor of record--Breach of rules of conduct best left for determination by appropriate Law Society--Right to counsel of one's choice ought not to be supplanted without regard to character, gravity, consequences of impugned conduct for parties' rights--At least, intimation of mischief, potential for injustice has to be demonstrated--Ms. Peech not aware Landmark defendant in ongoing action, Mr. McIntosh president of Landmark, represented by counsel--While clearly in error, Ms. Peech's conduct unwitting, not deceitful--As to exchange of damaging information, Ms. Peech did not obtain information relevant to litigation--No evidence Ms. Peech instructed by counsel to make calls with disingenuous purpose or indeed at all--Defendant has not made out real, apprehended mischief, injustice, harm to parties' rights in action stemming from prohibited communications--Mr. McIntosh's own evidence, conduct difficult to reconcile--Fair-minded member of public, in possession of all facts herein, would not conclude fair administration of justice requires Court's intervention in favour of defendant--Motion dismissed.