SUPREME COURT OF NOVA SCOTIA
Citation: Brogan v. Bank of Montreal , 2013 NSSC 76
Date: 20130613
Docket: Syd. No. 279326
Registry: Sydney
Between:
THOMAS BROGAN, SR., THOMAS BROGAN, JR., PATRICK BROGAN, PATRICIA BROGAN and FRANCIS A. REASHORE
Plaintiffs
v.
BANK OF MONTREAL, JOAN DEAN, DUNDEE PRIVATE INVESTORS INC./SERVICES FINANCIERS DUNDEE INC, amalgamated from 3947327 CANADA INC., formerly known as HERITAGE FINANCIAL SERVICES LIMITED and MITCHELL WHALEN
Defendants
LIBRARY HEADING
Judge: The Honourable Associate Chief Justice Deborah K. Smith
Heard: February 12th and 27th, 2013, in Halifax, Nova Scotia
Final Written
Submissions: May 31st, 2013
Written Decision: June 13th, 2013
Counsel: Derrick J. Kimball, Esq. on behalf of the Plaintiffs
Alexander S. Beveridge, Q.C. on behalf of the Bank of Montreal and Joan Dean
Roderick (Rory) H. Rogers, Q.C. on behalf of Dundee Private Investors Inc./Heritage Financial Services Limited
D. Kevin Burke, Esq., on behalf of Mitchell Whalen
Subject: Motion for an Order disqualifying the Plaintiffs’ law firm from acting as counsel in this matter.
Summary: The Plaintiffs are represented by the firm of Kimball Brogan. Derrick J. Kimball is the solicitor of record for the Plaintiffs. His partner, Nash T. Brogan, is co-counsel with Mr. Kimball on the file. Mr. Brogan is related to all of the Plaintiffs.
Issues: Whether Mr. Brogan is precluded from acting as counsel in this matter. Whether the other lawyers in Mr. Brogan’s firm are precluded from acting.
Result: There is no blanket prohibition against representing a friend or a family member in a proceeding. When considering a motion to remove a solicitor, the court analyzes the nature of the relationship between the lawyer and the client(s) and whether the relationship will interfere with the lawyer’s duty to provide objective, disinterested professional advice. The court will also consider whether the lawyer has a personal involvement or interest in the proceeding. The concern is the lawyer’s ability to remain objective and independent when advising the client and dealing with the other parties and the court.
In this case, the court had little information about the relationship between Mr. Brogan and his family beyond the fact that they are immediate family members. The court noted that Mr. Brogan was a witness in the present motion and will be questioned on discovery. He may be a witness at trial. The court concluded that Nash Brogan should not be a witness and counsel at the same time. Accordingly, an Order will issue precluding Nash Brogan from acting further in relation to this action.
The court further concluded that at this stage of the proceeding there is an insufficient basis to conclude that the other lawyers at Kimball Brogan should be precluded from acting in relation to this matter. This aspect of the motion was dismissed reserving to the Defendants the right to bring a further motion for the removal of Mr. Brogan’s partners and associates as the case develops and further information is known.
THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.