What is the test for a lawyer to be found in a conflict of interest?
Ontario, Canada
The following excerpt is from ASCANI v ASCANI ET AL, 2016 ONSC 5021 (CanLII):
The issue of a disqualifying conflict of interest is at the centre of this motion. The case of MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] 3 S.C.R. 1235, deals with such a conflict, which, in that case, arose from a situation in which a junior lawyer for a firm representing the applicant later went to work for the respondent’s firm. While that is not the case at bar, I am guided by the principles set out by Sopinka J. in that case. He sets out the test for a disqualifying conflict of interest, at p. 1260, as follows: (1) Did the lawyer receive confidential information attributable to a solicitor client relationship relevant to the issue at hand? (2) Is there a risk that it will be used to the prejudice of the client?
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