Date: 200001002
Docket: T-633-92
BETWEEN:
SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA
Plaintiff
- and -
LANDMARK CINEMAS OF CANADA LTD.
Defendant
REASONS FOR ORDER
ARONOVITCH, P.
[1] This litigation is aged and its conduct has been acrimonious. The main action is for infringement of copyright. The plaintiff, the Society of Composers, Authors and Music Publishers of Canada ("SOCAN"), is a performing rights society which grants licences for the performance of musical works in its repertoire. SOCAN commenced this action in 1992 alleging that Landmark Cinemas of Canada Ltd. ("Landmark"), an operator of motion picture theatres, has performed and continues to perform SOCAN's works without licence or the payment of performance rights fees.
[2] The litigation has followed a difficult course. Following status review, a series of contested motions have ensued essentially to compel answers on discovery, to compel attendance and re-attendance. This most recent motion, is to remove Gowling, Lafleur & Henderson ("Gowlings") as solicitors of record.
[3] The application to disqualify Gowlings was made by the defendant in June 2000 while a motion was pending to compel the re-attendance of Mr. Brian F. McIntosh, a director and officer of the corporate defendant, to answer questions refused on discovery. The motion to compel answers now stands adjourned.
[4] The grounds for the defendant's application are, direct telephone communications which took place unbeknownst to Landmark's counsel, between Ms. Melany Peech, a member of Gowlings and Mr. McIntosh and two members of his staff.
[5] Ms. Peech's telephone calls to Landmark were made to inquire about matters directly at issue in these proceedings. More precisely, the questions Ms. Peech put to Mr. McIntosh and his staff, relate to the operation and management of certain theatres and their relationship to the defendant. These matters are not only related to the litigation, but concern elements of the very information sought to be compelled by the plaintiff in the course of its discovery of Mr. McIntosh.
[6] At the time she contacted the defendant, Ms. Peech was a student-at-law working out of Gowlings' Calgary office and acting on the instructions of Mr. Robert Housman, a barrister and solicitor in the same Calgary office. Mr. Housman in turn, had received instructions from Mr. Gilles Daigle, the more junior of the two counsel at Gowlings Ottawa with carriage of the within action on behalf of SOCAN. Mr. Daigle has been fully implicated in this proceeding, including having at one time, conducted part of the examination for discovery of Mr. McIntosh.
The Facts
[7] This, in further detail, is how events unfolded. Late in 1999, Mr. Daigle of Gowlings in Ottawa, asked Mr. Housman to assist with some inquiries regarding the owners and operators of motion pictures in Alberta. In February 2000, Mr. Housman asked Ms. Peech to assist him with the inquiries. The evidence on behalf of Gowlings in this motion, consists of the affidavits of Mr. Housman and Ms. Peech.
[8] The gist of Mr. Housman's affidavit is as follows. From his conversations with Mr. Daigle, Mr. Housman was aware of the ongoing litigation and the fact that Landmark was the defendant. He asked Ms. Peech to make inquiries into the relationship that Landmark had with a number of specifically identified theatres in Alberta. He did not provide Ms. Peech with written instructions but suggested to her she rely on publicly available information specifically from licensing bodies which might exist pursuant to applicable legislation. He did not instruct Ms. Peech to speak to Landmark. Indeed, he maintains that he could not have given any such instructions as he was aware from his conversation with Mr. Daigle that there was ongoing litigation involving Landmark.
[9] The file folder remitted to Ms. Peech for the purposes of the inquiries, had an entry on the cover which describes the matter in a summary way. The matter description in the file is as follows:
| Agency Matters - title searches re: Gowlings file ... (The Society of Composers, Authors & Music Publishers of Canada v. Landmark Cinemas of Canada Ltd. re: copyright infringement) |
[10] Ms. Peech, in her affidavit, confirms the instructions from Mr. Housman and his suggestions that she use legislation and licensing information as a means of determining the managers of the specified theatres. She confirms that she did not have written instructions from Mr. Houseman. On cross-examination Ms. Peech admits that she did not read the file folder and on reading the file, drew her own conclusions as to the object of the exercise. She believed she was looking for "potential defendants in an action".
[11] On February 16, 2000, Ms. Peech commenced her search. She made inquiries at the legislative council to determine who administered the Alberta Amusement Act. Eventually, she focused on provincial licences to municipalities who provide movie licenses to movie theatres including the business licensing office in Calgary.
[12] Ms. Peech then made her fateful calls to Landmark. The following is reproduced from her affidavit and relates the substance of the telephone calls:
| 9. In the course of my inquiries on that day, February 16, 2000, I made two telephone calls to Landmark (262-4255). I spoke with the receptionist, who I asked what type of company Landmark was and what the company did. I asked her if she knew about anything about Jan Theatre, Towne Cinema Theatres, and Prairie Cinema. I cannot be certain that I mentioned the Monarch Theatre. The receptionist did not seem to know anything, except she did tell me that "all the smaller theatres go by the name `Landmark'". She did not appear to be able to tell me anything about Landmark and transferred me to a woman named "Jan." |
| 10. Jan resisted answering any of my questions about Landmark. I asked her about Landmark and the theatres I have referred to in paragraph 9. I am certain that I raised the named Monarch Theatres in my conversation with Jan. In fact, I received no information from her, except that she told me she would pass my inquiries on to a Brian McIntosh, who would call me back. I gave Jan my name and number. At that time, I did not know that Brian McIntosh is the President of Landmark. |
| 11. By February 18, 2000, I had not received a return telephone call from Mr. McIntosh, so I telephoned him directly. After I identified myself, Mr. McIntosh asked me what information I was seeking. I replied that I was looking for information about any connection between Landmark and the theatres to which I have referred in paragraph 9. I am also certain that I included the Monarch Theatre in my inquiries of Mr. McIntosh. |
| 12. Mr. McIntosh then asked me what my specific question was. I replied that I wanted to know either the connection between Landmark and the movie theatres I have refereed to or whether Landmark managed those theatres. |
| 13. Mr. McIntosh told me that he would make a note of my specific question and get back to me. He did not give me any other information. |
| 14. I made a second telephone call to Landmark on February 16, 2000. That call was made because from information I had received in the course of my inquiries, I learned of the Motion Picture Theatre Association of Alberta (MPTA). The president lived in Lloydminster, and the secretary was listed as Ian Harwood, who was employed at Landmark. My call to Mr. Harwood was in his capacity as secretary of the MPTA. I telephoned him and asked about the MPTA, and what types of companies would be members. I also asked him about the prerequisites for joining, and the objects of the organization. Mr. Harwood did not give me any specific information about Landmark, and I did not ask him any questions about it. (Affidavit of Ms. Melanie Peech dated May 16, 2000 at pages 3 and 4) |
[13] Following the calls, Ms. Peech made a file summary of her inquiries including her discussions with various individuals at Landmark and forwarded a copy of the summary to Mr. Daigle in Ottawa.
[14] Mr. Housman did not read the summary. Ms. Peech did however hear from Mr. Daigle, who called sometime later (possibly the end of February or the beginning of March, 2000) to advise Ms. Peech that there was ongoing action involving Landmark, that her calls were inappropriate and a cause for concern. Ms. Peech deposes that it was not until Mr. Daigle called to inform her of the fact that she became aware that Landmark was the defendant in an ongoing action wherein Gowlings' client, was plaintiff.
[15] Landmark's evidence in the context of this motion, consists of the affidavit of Mr. McIntosh. He relates that he had been examined on discovery as an officer of Landmark in April of 1994 and then again on December 20, 1999, and that while being examined on that later occasion, amongst other things, was asked to answer a number of questions concerning the corporate entity of "Towne Cinema Theatres (1975) Limited", the role of Landmark in the operation of certain motion picture theatres, the identity of owners of certain motion picture theatres and number of questions concerning the operating relationship that Landmark had with participating theatres. Over the course of the examination a number of those questions had been objected to by his counsel and Mr. McIntosh had accordingly not answered.
[16] In his affidavit, on the basis of his information and belief in the veracity of the information provided to him by his staff, Mr. McIntosh deals first with what occurred between his former receptionist Ms. Tracy Drinnan and Ms. Peech. That account essentially coincides with Ms. Peech's own account. As to the call which the receptionist transferred to his secretary, Ms. Jan Brown, Mr. McIntosh:
| (b) ...That the call was then transferred to my personal secretary whose recollection is that she was asked, among other things, ". . . are you Towne Cinema Theatres or are you Landmark Cinemas or is Towne Cinema Theatres and Landmark the same . . .", ". . . is Landmark and Towne Cinema Theatres the same . . .". She advises that she was informed during the course of the conversation tha the caller's client wanted to get in touch with whoever "operates" a particular theatre located at 609 - 2 Street, Medicine Hat, Alberta, but not with the "owner" of the theatre.. (Affidavit of Mr. Brian F. McIntosh at page 2.) |
[17] Mr. McIntosh deposes that he was informed on February 18, 2000, by his receptionist, that a Ms. Peech had left a message for him to return her phone call. He then returned the phone call in the normal course and relates what ensued:
| 5. [...] It was answered by a lady who identified herself as Melany Peech, the person who had left the message. She identified herself as a lawyer with the firm "Gowlings" of Calgary, that she was making enquiries on behalf of an unnamed lawyer from "Gowlings" in Ottawa, who she believed was making enquiries on behalf of an Ottawa based client of that firm, the name of which she did not know. I asked what details she was looking for. She replied that she was referring to an "e-mail" she had received from an Ottawa-based Gowlings lawyer, that she was looking to identify who "operates", or which company "operates" theatres identified as the Monarch Theatre and the Towne Cinema, Medicine Hat (Alberta), and the Jan Cinema, Grande Prairie (Alberta).[...] |
| 6. Realizing that these enquiries might relate to the present litigation, and realizing as well that the previous telephone call to my receptionist and secretary might also relate to the litigation, I elected to defer and indicated that I would review her request for information and "get back" to her. |
| 7. That I called my lawyer to enquire about whether I was required to answer the questions put to me by solicitors opposite in the litigation. As a result of such conversation I am of a belief that such direct contact with me and my staff, in the absence of and without his knowledge and approval, is improper. (Affidavit of Mr. Brian F. McIntosh at pages 2 and 3.) |
[18] The cross-examination of Mr. McIntosh on his affidavit, supplements the facts as follows. Neither Ms. Drinnan nor Ms. Brown are employees of Landmark. Following Ms. Peech's call on February 16, Ms. Brown spoke to Mr. McIntosh and advised him that she had received "an unusual call". She also advised Mr. McIntosh that Ms. Peech had identified herself to Ms. Brown as being with Gowlings. Mr. McIntosh stated that he believed that Ms. Brown would have made notes of the conversation but he did not look at them. There is no affidavit evidence from Ms. Brown relating either to her conversation with Ms. Peech nor with Mr. McIntosh in its aftermath.
[19] Mr. McIntosh could not recall on cross-examination, whether he had spoken to Ms. Brown on the 16th. He did however admit having spoken to his counsel, Mr. George H. Akers, regarding the calls prior to Ms. Peech's call to Mr. McIntosh on the 18th. At the time he spoke to Mr. Akers, he was aware that Ms. Peech was from Gowlings and had asked questions relating to certain cinemas including the Towne Cinema. The telephone records put in evidence by Gowlings, bear out a telephone conversation between Mr. McIntosh and Mr. Akers at 4:19 in the afternoon of February 17th, which lasted roughly one half hour. In the course of the cross-examination on his affidavit, all questions relating to the conversation with Mr. Akers relating to the calls made by Ms. Peech on the 16th were declined by Mr. McIntosh on the advice of counsel. Mr. McIntosh similarly declined to respond to a question as to whether, prior to his conversation with Ms. Peech on the 18th, he had an opinion or had formed any conclusion about the propriety of the calls that Ms. Peech had made to Ms. Drinnan and Ms. Brown on the 16th.
The position of the parties
[20] Generally, the codes of professional conduct governing barristers and solicitors, provide that a lawyer who is aware that a party adverse in interest is represented by counsel, must not communicate with that party regarding the substance of the controversy between the parties otherwise than with the consent of opposing counsel. The defendant relies in this instance on the Code of Professional Conduct of the Law Society of Alberta, Chapter 4, Rule 6 as follows:
| 6. If a lawyer is aware that a party is represented by counsel, in a particular matter, the lawyer must not communicate with that party in connection with the matter except through or with the consent of its counsel. |
and paragraph 4 of the Canadian Bar Association Code of Professional Conduct as follows:
| 4. The lawyer may properly seek information from any potential witness (whether under subpoena or not) but he should disclose his interest and take care not to subvert or suppress any evidence or procure the witness to stay out of the way. An opposite party who is professionally represented should not be approached or dealt with save through or with the consent of his lawyer. |
[21] The defendant argues that the court should be guided by the principals set out by the Supreme Court in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 (S.C.C.). While the matter in issue in that case is the existence of conflict of interest, the Supreme Court, in broad terms, is concerned with the conduct of solicitors and the violation of ethical standards that govern them. The ultimate pre-occupation of the court, argues the defendant, is the public's confidence in the process, its perception of the fairness of the judicial system and the avoidance of even the appearance of impropriety.
[22] The defendant submits that while the court has jurisdiction to remove counsel on the basis of the breach of the rules of professional conduct, there need not be a breach. The applicable test is whether on the facts, a fair-minded and reasonably informed member of the public would conclude that the proper administration of justice requires the disqualification of the solicitor of record: Everingham v. Ontario, (1992) 88 D.L.R. (4th) 755 affirmed (1992) 8 O.R. (3d) 121) and MacMillan Bloedel v. Freeman & Co. [1992] B.C.J. No. 2815. Counsel for the defendant agrees that whether the court intervenes to remove counsel on the basis of the stated test will depend on the circumstances of the case. In this case he argues, Gowlings' conduct is such as to clearly disentitle the firm from further implication in this action.
[23] Mr. Beal of Gowlings Ottawa, is the senior lawyer with carriage of the SOCAN file. He argues on behalf of Gowlings, that what is at issue in this instance, is an unfortunate error on the part of an articling student. Ms. Peech formed her own opinion as to what was at issue in the assignment she had been given and, on that mistaken basis, unknowing and of her own initiative, engaged in what is clearly improper conduct but without consequence in this action. As to Mr. McIntosh's own conduct, Mr. Beal characterizes it as an attempt to overreach an inexperienced articling student. He asks the court to draw the appropriate adverse inference from the fact that Ms. Brown, who was in a position to elucidate the date and substance of her conversation with Mr. McIntosh, did not provide affidavit evidence in these proceedings: Levesque v. Comeau, [1970] S.C.R. 1010 at 1011 - 1012.
Analysis
[24] The jurisprudence on which the defendant relies merits further examination. Both of MacMillan Bloedel and Everingham, supra, deal directly with prohibited communications with individuals represented by counsel and broadly canvass the applicable principles.
[25] The facts in MacMillan Bloedel are as follows. In the main action in that case, the plaintiff, MacMillan Bloedel ("MacBlo") was suing for negligence arising from the supply and manufacture of asbestos-containing material. Counsel for the defendants, unbeknownst to MacBlo, had made arrangements to be given a public tour of a pulp mill owned by MacBlo. At the time of the visit, a motion was pending before the British Columbia Supreme Court in which the defendants were seeking an order that MacBlo permit the defendants' solicitor to enter the pulp mill for the purposes of an inspection related to the substance of the litigation. Counsel for the defendants arrived for the pre-arranged visit and were met by a summer student who conducted public tours of the mill. The summer student learned in casual conversation that the five visitors, who had arrived by float plane, were lawyers. Her suspicions were further aroused by the visitors' apparent knowledge of the mill. She reported her suspicions to the manager who decided that he would meet with the visitors himself. He did in fact meet with them for roughly one half hour, answering questions about such things as the mill's relationship with regulatory agencies and its program dealing with asbestos at the mill which were subjects relevant to the litigation.
[26] The court found that the manager, despite his denial, did in fact know that he was about to speak with a group of lawyers who were not in anyway, associated with his employer and were moreover, unusually knowledgeable about the pulp mill operations. The court also found that the meeting had been entirely voluntary on the part of the manager and not requested by the lawyers and that no information was given by the manager that would not have been given in response to queries from general public visiting the mill.
[27] Counsel for the plaintiff MacBlo, argued in that case, that the defendants' counsel had breached the rules of professional conduct thereby creating an "appearance of impropriety" sufficient to disqualify them from continuing to act in the proceeding. The respondent argued that no breach of the rules had occurred, an that in any case, this should be a matter left to the appropriate Law Society to decide. While not conceding any appearance of impropriety, counsel for the defendants argued, to successfully remove counsel, the plaintiff had to demonstrate not only the appearance of impropriety but the "probability of real mischief".
[28] The arguments of counsel in the present motion are not substantially different from the arguments of counsel in MacMillan Bloedel. While he alludes to the requirement of a "possibility of mischief" in argument, Mr. Akers in fact infers mischief from the impugned conduct itself and would have Gowlings removed essentially on the appearance of impropriety which he argues is undeniable in the circumstances. Mr. Beal argues in effect, that if there is appearance of impropriety, it encompasses the actions of both parties. He relies on the inadvertence and lack of improper motive on the part of Ms. Peech and asks who is thereby harmed.
[29] Focussed on distilling the proper question to be answered by the court and the test to be applied in consequence, Justice Oliver of the British Columbia Supreme Court observed at page 7 of MacMillan Bloedel:
| The answer to the question of whether the respondent lawyers breached any rule of professional conduct or acted improperly in conversing with Mr. Wiekenkamp, is to be determined by the Law Society, not the court. The question that the court must answer is not: did the respondent lawyers in fact breach a rule of professional conduct, but rather: are the actions alleged to constitute that breach of such a serious nature, from the perspective of fairness in the proceedings of the underlying action, as to require judicial intervention? |
| In Manville Canada Inc. v. Ladner Downs, (1992), 63 B.C.L.R. (2d) 102, Esson, C.J.S.C. clearly held that in order to justify the removal of a solicitor, there must be not only the "appearance of impropriety" but also a "probability of mischief". He stated at page 116: |
| The language of the majority reasons [in MacDonald Estate v. Martin] does not, in my view, preclude the court, in deciding whether to grant the extraordinary and drastic remedy sought in applications of this kind [for removal of a solicitor] from having regard to the reality rather than to appearances or perceptions. |
| At page 117 the Chief Justice continued: |
| It is right for the C.B.A. to lay down a rule which will encourage its members to so conduct themselves as to avoid even the possible perception of conflict. But I suggest that it is wrong in principle to apply that rule directly to the issue whether a lawyer should be disqualified from acting. To do so is to ignore, as many of the American authorities seem to do, the drastic nature of the remedy which is asked for in a proceeding of this kind. One litigant applies to derive the opposing litigant of the services of the lawyer which it has chosen and which has represented it for years. Such a remedy necessarily imposes hardship and, given that the party deprived of its representative is an innocent bystander in the issue between its lawyer and the opposite party, some degree of injustice on the innocent party. The imposition of such hardship and injustice can only be justified if it is inflicted to prevent the imposition of a more serious injustice on the party applying. It follows that the injunction should be granted only to relieve the applicant of the risk of "real mischief", not a mere perception. [my emphasis] |
[30] In the same vain as the defendant in this motion, the plaintiff in MacMillan Bloedel places great emphasis on the decision in Everingham, supra. In that case, patients in a psychiatric hospital brought a lawsuit against the government of Ontario. A Crown counsel who was to cross-examine a patient on his affidavit in connection with the patient's suit while on a tour of the psychiatric facility, met privately with the patient without the presence or knowledge of the patients' counsel. The motions court judge, found that the meeting was fortuitous and without improper motive as the reason for the meeting was to alleviate the patients' anxiety. The ensuing exchange did not deal with the proceeding and no information of any kind was imparted to the Crown counsel. The motion judge concluded however that "the spirit" of rule 10 commentary 14 of the Code of Conduct of the Law Society of Upper Canada, had been breached and disqualified counsel from any further implication in the proceeding.
[31] On appeal the court found that there had not been a breach of the rules of conduct but nevertheless upheld the disqualification of counsel. The appeal court stated that the applicable test is objective, as to whether a fair-minded reasonably informed person would conclude that the administration of justice required the removal of the solicitor. Applying the test, the court concluded that the circumstances of that case were such, that a member of the public would not be satisfied of the "unqualified fairness" of the process: Everingham, supra at page 5.
[32] Justice Oliver in McMillan Bloedel, considered Everingham and distinguished it as follows at page 8 of the decision:
| The test set out in Bell and Nash and in Everingham, whether a fair-minded and reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor, would obviously produce different results depending on the circumstances which gave rise to the call for removal. Communication between a lawyer and a confined mental patient or an emotionally vulnerable matrimonial litigant has far greater potential for creating an "obvious appearance of unfairness" and a risk of real mischief than does communication between a lawyer and an experienced business executive. Parallels between the these situations cannot readily be drawn. |
[33] Justice Oliver denied the motion to disqualify having concluded on the facts of the case, that the plaintiff had failed to show "the probability that any real mischief" resulted from the impugned conversations (MacMillan Bloedel, supra, at page 9).
| Mr. Wiekenkamp would unquestionably have been on his guard during the conversation, knowing that he was speaking with knowledgeable and curious lawyers. The chances that he would have said anything that would do "real mischief" to the petitioner's position in the underlying action are so remote as to be virtually non-existent. The petitioner has not in fact suggested that he did say anything harmful or unfortunate and has not shown a factual basis for any realistic apprehension that occurred. |
[34] Neither party brought to my attention the decision of Brennan J. in Transamerica Life Insurance Co. of Canada v. Seward [1997] 33 O.R. (3d) 604 (General Division). Here again, the court had under consideration the boundaries of the principles relating to communications with represented parties and witnesses. In its conclusions of law, the court echoes the principles stated in MacMillan Bloedel, supra. It advises deference to Law Societies to deal with breaches of codes of conduct and at page 6 of the decision, makes the following statement as to when the court should intervene to remove counsel:
| The integrity of the justice system would be ill-served if the court too readily disqualified counsel at the suggestion of adverse parties. An "appearance of impropriety" is not an appropriate test in cases other than those of true conflict of interest, particularly when the appearance is to the eye of the adverse party. I accept the submission of the responding party that Lerner's primary duty was to serve the interests of its client. There are situations in which the public interest will prevail over that duty, but the court should be vigilant against interference with it on all but the strongest grounds. Such grounds do not exist on these facts, and the motion to disqualify counsel must fail. [My emphasis] |
[35] The defendant has argued that even if it were conceded that Ms. Peech did not know of the litigation, this is at best, a case of negligence with an element of deceit; the deceit residing in the fact that Ms. Peech was obliged to disclose her client in interviewing witnesses. I would say in regard to the first allegation, that Gowlings' negligence if any, in the supervision of its students, is not a matter for determination for the court in this context.
[36] As to whether there has been a breach of the rules of conduct, I concur that it is best left for determination by the appropriate Law Society. That said, the appeal court in Everingham, supra, where the facts, in essence, resemble those at bar, on a purposive interpretation of the rule of conduct, found no breach.
[37] Whether one has reference "the most serious of grounds", "the probability of mischief" or "real mischief", I subscribe to the view that in circumstances such as those at bar, the right to counsel of one's choice ought not to be supplanted without regard to the character, gravity and consequences of the impugned conduct for the rights of the parties. At the least, some intimation of mischief or the potential for injustice has to be demonstrated. Indeed, even in cases of conflict of interest, while there is a presumption that confidential information is imparted in the case of certain retainers, the presumption may be rebutted if the solicitor can satisfy the court on those facts that none was in fact imparted. It is that exercise of evaluating the facts that must withstand the scrutiny of the public: MacDonald Estate, supra.
[38] How then are the facts in this case to be construed and what weight are they to be given? I accept Ms. Peech's evidence that she was not aware that Landmark was the defendant in an ongoing action, that she did not know that Mr. McIntosh was the President of Landmark or represented by counsel. While clearly in error Ms. Peech's conduct was unwitting and was not deceitful. She advised Ms. Brown that she was a lawyer with Gowlings, and Mr. McIntosh, that her calls were in aid of Gowlings in Ottawa. She asked her questions in a forthright manner, unaware that Landmark was a party to ongoing litigation. Indeed, neither Ms. Drinnan nor Ms. Brown are employees of Landmark and are therefore not at issue in the prohibition invoked by the defendant nor can they be said to be "witnesses" for the purposes of Mr. Akers' argument. As to the exchange of damaging information, other than the seemingly innocuous statement of the receptionist Ms. Drinnan, Ms. Peech clearly did not obtain any information relevant to the litigation.
[39] There is no evidence that Ms. Peech was instructed by counsel to make the calls with a disingenuous purpose or indeed at all. In fact, when Mr. Daigle, who was the first to read her note became aware of what had occurred, he telephoned Ms. Peech directly to advise her that they were inappropriate and the source of consternation for her principals. Mr. Beal, then learned of the events and telephoned Mr. Akers. Subsequently, having returned from a business trip, by letter of March 6, 2000, he wrote Mr. Akers and Landmark to apologize. In his letter, Mr. Beal acknowledged that an "error" had been made and, as counsel with carriage of the matter, accepted responsibility for Ms. Peech's fault. Mr. Akers, having spoken to Mr. Beal and anticipating the written apology, wrote to Mr. Beal to reject it on behalf of his client. In his letter, Mr. Akers refers to the difficult and protracted litigation which had given rise to personal differences, anger and animosity. He confirms that the litigation has proved difficult for the clients as well as the firms. Mr. McIntosh, irate and mistrustful, would not accept an apology which he did not believe. Mr. McIntosh's reasons for rejecting Gowlings' explanation and ostensibly the basis for this motion, are explained more fully in Mr. McIntosh's affidavit as follows:
| 8. I am advised by my lawyer and believe that in his subsequent conversations with Mr. Beall of the Gowlings firm in Ottawa in incidents have been described as a "mistake". For reasons which follow I cannot accept the explanation. |
| 9. In documents filed with the Court in this action I am characterized by solicitors opposite as "scandalous and abusive", and "unconscionable". My sworn statements have been described as "particularly outrageous" and "contemptuous". I am accused of "wilful misconstruction". At the examination held December 20, 1999 I was expressly accused of giving untruthful answers under oath. I have, in effect, been called a liar. |
| 10. The conversations with and questions directed to me and to my staff by telephone by Ms. Peech were so direct and so line with questions to which exception was taken at the December 20, 1999 examination that I cannot help but believe that it was part of a scheme designed to circumvent the Court's process to obtain information about Landmark, and from Landmark about third parties not named in this suit, by resorting to improper methods. |
| 11. My integrity has been so completely and, I believe, unjustifiably impugned by solicitors opposite in the conduct of this file that I am left with the unalterable perception that they would stop at nothing in an attempt to further their characterizations of me, and therefore the Defendant, such as are set out in paragraph 9 of this, my affidavit. I feel that the occurrences of February 16 and 18, 2000 are examples of lengths to which they are prepared to go. (Affidavit of Mr. Brian F. McIntosh at page 3.) |
[40] Indeed, reading the transcripts of the examinations and cross-examinations in this proceeding, one is impressed with the recurring lack of civility and charged exchanges involving both counsel and at times, Mr. McIntosh. While Mr. McIntosh's anger and suspicion is quite real, the facts in this case do not support the contention that Ms. Peech's improper conduct was knowing, or in any way part of a deliberate scheme designed to further denigrate Mr. McIntosh or circumvent the court's process by improper means. In fact, the defendant has not made out any real or apprehended mischief, injustice, or harm to the rights of the parties in this action stemming from the prohibited communications.
[41] In addition, Mr. McIntosh' s own evidence and conduct in this matter, are difficult to reconcile. While this affidavit is devoid of dates and times relating to his conversations with Ms. Brown or Mr. Ackers, he does admit on cross-examination that he consulted his lawyer prior to making his phone call to Ms. Peech. Even without the advice of his counsel, I cannot accept that Mr. McIntosh, prior to returning Ms. Peech's call did not know that her inquiries, related to the litigation. Mr. McIntosh is a sophisticated corporate executive, a veteran of examinations and cross-examinations. I have no doubt that he had already formed an opinion as to the propriety of Ms. Peech's calls well before returning her call to personally receive her inquiries.
[42] However much Mr. McIntosh dislikes Gowlings' tactics and suspects it of the worst, the court is not concerned with his perception of the facts, but with public confidence in the judicial process and therefore the perception of an advised member of the public. At issue is whether Ms. Peech's and therefore Gowlings' conduct in this instance, is serious enough or has grave enough consequences for the public's perception of fairness in the administration of justice as to require the court's intervention to remove Gowlings thereby depriving SOCAN of its solicitor of choice.
[43] Without in any way detracting from the impropriety of Ms. Peech's conduct, I cannot find that a fair minded member of the public, in possession of all of the facts in this case, would conclude that the fair administration of justice requires the intervention of the court in favor of the defendant.
[44] That said, Mr. Beal in my view, understates the case in remarking that Ms. Peech is likely to remember these events for a long time to come. It appears to me that these events hold lessons for all concerned.
Conclusion
[45] The defendant's motion is dismissed with a separate order to issue. While the plaintiff has been successful in this motion, it is appropriate in all of the circumstances of this case, that costs be in the cause and shall be so ordered.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-633-92
STYLE OF CAUSE: SOCIETY OF COMPOSERS, AUTHORS AND
MUSIC PUBLISHERS OF CANADA v. LANDMARK
CINEMAS OF CANADA LTD.
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: JUNE 27, 2000
REASONS FOR ORDER OF ARONOVITCH, P.
DATED: OCTOBER 2, 2000
APPEARANCES:
CHARLES E. BEALL FOR PLAINTIFF
GEORGE H. AKERS AND FOR DEFENDANT
MARK E. LINDSKOOF
SOLICITORS OF RECORD:
GOWLING, LAFLEUR
HENDERSON LLP FOR PLAINTIFF
OTTAWA, ONTARIO
NICHOLL & AKERS FOR DEFENDANT
EDMONTON, ALBERTA