Executive Summary: Key Legal and Evidentiary Issues

• Angela Carbone sought to disqualify Bennett Jones as counsel for Dr. Mohamed Nanji, alleging a conflict of interest arising from joint representation of co-defendants Dr. Jeffrey Dawes and his professional corporation.

• Blame-shifting language in the respective Statements of Defence was argued to demonstrate directly adverse interests between the co-defendants, triggering the bright line rule under R v Neil and CNR v McKercher LLP.

• Separate security for costs applications filed by Bennett Jones on behalf of each defendant were cited as evidence of divergent legal interests and increased prejudice to the Applicant.

• The Applicant, a self-represented litigant, contended that the change in counsel impaired her ability to prepare for Questioning, particularly regarding Dr. Nanji's role as medical director of Surgical Centres Inc.

• Informed consent from all jointly represented defendants and counsel's reasonable belief in the viability of joint representation were central to the Respondent's defence against disqualification.

• Reliance on R c Syed for pre-emptive disqualification was found distinguishable, as that case involved potential misuse of confidential information in a criminal context.

The underlying medical malpractice claim

Angela Carbone brought a claim for damages arising from a surgery she underwent on March 4, 2021 at Surgical Centres Inc. (SCI). The physicians involved in the surgery were Dr. Jeffrey Dawes and Dr. Mohamed Nanji. Dr. Dawes also conducted business through his own professional corporation, and Dr. Nanji was the CEO of SCI at the time of the procedure. Elisha Makar (also known as E. Doyle), a nurse employed by SCI, was also named as a defendant. Carbone, appearing as a self-represented litigant, filed suit against all of these parties.

Representation and the change in counsel

When the claim was initially launched, Miller Thomson was acting for all of the SCI Defendants, including Dr. Nanji. Separately, Bennett Jones was representing Dr. Dawes and his professional corporation. After pleadings closed, however, Dr. Nanji switched lawyers and went from Miller Thomson to Bennett Jones, thereby placing himself under the same counsel as Dr. Dawes and the Dawes professional corporation. This change in counsel became the focal point of the present application.

Carbone's application to disqualify Bennett Jones

Carbone brought an application before the Court of King's Bench of Alberta seeking to disqualify Bennett Jones from acting for Dr. Nanji. She argued that the Dawes Defendants and Dr. Nanji held adverse interests because their respective Statements of Defence shifted blame onto one another, denied vicarious liability, and relied on the Tort-Feasors Act and the Contributory Negligence Act to attribute fault to the other party. She contended this blame-shifting rhetoric was inconsistent with joint representation and created directly opposed interests. Additionally, Carbone pointed to the fact that Bennett Jones filed separate security for costs applications on behalf of each defendant, which she argued doubled the costs requested. She also raised concerns that the pleadings were not amended after Dr. Nanji's change in counsel, making it difficult for her to prepare for Questioning, particularly regarding Dr. Nanji's role as medical director of SCI, since SCI counsel no longer represented him.

The governing legal framework

Justice Lisa A. Silver outlined the governing principles for conflict of interest in the context of joint representation. The bright line rule, established in R v Neil (2002 SCC 70) and refined in CNR v McKercher LLP (2013 SCC 39), prohibits a lawyer from representing a client whose interests are "directly adverse" to the "immediate" interests of another current client, unless both clients provide informed consent and the lawyer "reasonably believes" that joint representation would not adversely affect the clients. The Court noted that the Law Society of Alberta's Code of Conduct, particularly rules 3.3 and 3.4 on confidentiality, duty of loyalty, and conflict of interest, aligns with this jurisprudential framework. Importantly, the commentary on rule 3.4 recognizes that joint representation of defendants is permissible where all parties are informed of the potential for conflict and consent to such representation, and that "parties who appear to have differing interests" are not "necessarily engaged in a dispute."

The Court's analysis of the alleged conflict

The Court found that the bright line rule was not engaged because the "immediate" interests of the Dawes Defendants and Dr. Nanji were not "directly adverse." Although the pleadings contained blame-shifting rhetoric, Justice Silver determined that this did not create the type of direct adversity to immediate legal interests required to trigger the bright line rule. The Court characterized the pleadings as "protective in nature" and found they did not establish the type of real and continuing adversarial stance necessary to engage the rule. Both defendants deny liability in full, and neither defendant's legal position presently depends on the other being found at fault. The separate security for costs applications pursued substantively similar relief, and counsel was not required to undermine the interests of one client to advance those of the other. The Court also rejected the argument that separating Dr. Nanji from SCI was unprecedented, noting there is precedent in case authorities for separate representation of physicians from hospitals and other medical personnel, citing Elguindy v. St. Joseph's Health Care London (2017 ONSC 5360). The Applicant's concerns about Questioning were similarly dismissed, as the change in counsel does not restrict the scope of the Questioning nor does it impact the fairness of the Questioning process.

Distinguishing the Syed precedent

Carbone relied on R c Syed (2012 QCCS 7188) to argue that Bennett Jones must be disqualified before any conflict arises to safeguard the administration of justice. The Court found Syed distinguishable: in that case, the court was concerned with the potential misuse of confidential information where the criminal defence lawyer previously represented the victim, and the adversity was direct. By contrast, the present matter arises in the civil context with informed consent for joint representation where all defendants' interests are aligned.

The ruling and outcome

Justice Silver dismissed the application. Considering the totality of the circumstances — including the nature of the pleadings, the procedural carriage of the litigation, the consistent alignment of the defendants' positions during the course of litigation, the absence of antagonistic litigation strategies, the informed consent provided, and counsel's reasonable belief that joint representation remains viable — the Court was satisfied that no immediate or viable conflict of interest exists. The concerns raised by Carbone, while understandable, were found to remain speculative and to fall short of displacing the general principle that parties may jointly retain counsel when their interests are aligned. The extraordinary remedy of disqualification was therefore not warranted. Costs were ordered in the cause and will be determined as part of the global costs awarded in the case. No specific monetary amount was determined in this decision, as the ruling addressed the interlocutory disqualification application rather than the merits of the underlying claim.