Saturday, April 19, 2008

Carpenter union secures big raise

Bozeman Montana Local News
A trade union that represents more than 100 carpenters in this part of the state has ratified a contract that will bring an additional $4 an hour to members in wages and benefits over the next three years.

The contract represents the most substantial increases in wages and benefits seen by the union in 12 years, union representative Mary Alice McMurray said. It was secured by two locals of the United Brotherhood of Carpenters and will be recognized by a handful of contractors in Helena, Bozeman and surrounding areas

Beginning in May, union members’ wages will rise from $16.70 to $18 an hour. By May 2010, members of the carpenter union will be earning $20.50 an hour, McMurray said.

2 comments:

Anonymous said...

CMAW CONSTRUCTION WORKERS DUES WASTED BY CEP YET AGAIN IN ANOTHER LOSING BATTLE IN ALBERTA.

Court of Queen’s Bench of Alberta
Citation: Operative Plasterers’ and Cement Masons’ International Association of the
United States and Canada, Local 222 v. Alberta (Human Resources and Employment),
2008 ABQB 225
Date:
Docket: 0503 09627
Registry: Edmonton
IN THE MATTER of the Labour Relations Code, R.S.A. C. L-1;
AND IN THE MATTER of an Order-in-Council 565/2004, Promulgated by the
Lieutenant Governor in Council on December 6, 2004
Between:
Operative Plasterers’ and Cement Masons’ International Association of the United States and
Canada, Local 222; United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, Local 488; International Association of Heat
& Frost Insulators and Asbestos Workers, Local 110; Sheet Metal Workers’ International
Association Local 8; International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers & Helpers, Local Lodge 146; and Alberta and Northwest Territories (District of
Mackenzie) Regional Council of Carpenters and Allied Workers on behalf of Locals 1325 and 2103
Applicants
- and -
Her Majesty the Queen In Right of Alberta, The Honourable Mike Cardinal in his capacity as
Minister of Human Resources and Employment, Horizon Construction Management Limited,
Communication, Energy & Paperworkers’ Union of Canada, Local 777, and Construction
Workers’ Union (CLAC), Local 63
Respondents
_______________________________________________________
Reasons for Judgment
on Removal of Counsel Application
of the
Honourable Mr. Justice A.W. Germain
_______________________________________________________
I. Introduction
[1] In December 2004 , the Lieutenant Governor in Council for Alberta promulgated Orderin-
Council 565/2004 [the “O.C.”] which, for the purposes of s. 196 of the Labour Relations
Code [the “Code”], designated the Horizon Oil Sands Project near Fort McMurray [the “Oil
Sands Project”] as a project to which Division 8 of Part 3 of the Code applies. The O.C. also
Page: 2
designated Horizon Construction Management Ltd. [“Horizon”] as the principal contractor for
the Oil Sands Project and authorized Horizon to bargain collectively in respect of the Project.
[2] The building trade unions [the “Building Trades”], hired the law firm of Blair Chahley
Seveny [the “Law Firm”] to represent them in an application to quash the O.C. and the
Ministerial determinations that flowed from it [the “Main Application”].
[3] The Communication, Energy & Paperworkers’ Union of Canada [the “CEP”], through its
Local 777 [“Local 777" ], brings this application to disqualify and remove the Law Firm from
representing the Building Trades in the Main Application on the grounds of conflict of interest.
II. The facts
[4] The Code allows the Lieutenant Governor by Order-in-Council to declare certain projects
subject to the provisions of the Code. Depending on the circumstances, and one’s own
perspective, this may be perceived as a good thing or a bad thing. On June 2, 2006, the Building
Trades, as represented by the Law Firm, filed an Originating Notice of Motion to have the O.C.
struck on the basis of administrative law principles revolving generally around the breach of
natural justice.
[5] While the remaining facts are developed later in this judgment, the following time line
illustrates both the progress of this litigation and the relevant interaction between the parties:
December, 2004 - The O.C. is promulgated under the Code.
June 2, 2005 - By way of Originating Notice of Motion, the Law Firm, on
behalf of the Building Trades, commences the Main
Application to quash the O.C..
February 23, 2006 - Local 777 enters into a Collective Agreement with Horizon
pursuant to the O.C..
October 24, 2006 - Local 777 is added as a Respondent to the Main
Application by consent. No conflict allegations are raised
at this time.
December 11, 2006 - The Law Firm, which represents the Alberta Building
Trades Council and its affiliated unions, some of which are
the Building Trades involved in the present action, first
raise a Charter issue in proceedings before the Labour
Relations Board [the “L.R.B.”] in L.R.B. File GE-05084.
February 5, 2007 - Local 777 intervenes in L.R.B. File GE-05084 and objects
to the Law Firm representing the Building Trades on the
Page: 3
grounds that in advancing the Charter argument, the Law
Firm was taking a position conflicting with the interests of
Local 777.
February 5, 2007 - The Law Firm withdrew the portion of the Building
Trades’ application relating to the Charter argument and as
a result, Local 777 withdraws from the proceedings relating
to L.R.B. File GE-05084. As such, the L.R.B. was not
required to adjudicate the conflict issue.
June, 2007 - Certain Building Trades, as represented by the Law Firm,
raise the Charter issue again before the L.R.B. in a
different matter, this time in the context of applications for
supervised strike votes.
June 8, 2007 - The Supreme Court of Canada releases its judgment in
Health Services.
June 11, 2007 - The Law Firm circulates its proposed draft amendments to
the Originating Notice of Motion, which add grounds that
the O.C. contravenes s. 2(d) of the Charter. The relief
sought, i.e. quashing the O.C., remains the same.
July 11, 2007 - Local 777 intervenes in the second matter before the L.R.B.
and seeks to have the Law Firm removed as counsel for the
Building Trades due to conflict. The conflict issue is not
decided by L.R.B. before the underlying strike vote issues
are resolved.
September, 2007 - Certain Building Trades, represented by the Law Firm,
raise the Charter issue in a third application before the
L.R.B., this time in the context of applications for
supervised strike votes.
September 6, 2007 - Local 777 objects and seeks to intervene in the third
application to have the Law Firm removed as counsel for
the Building Trades due to conflict. The conflict issue is
not decided by L.R.B. before the underlying dispute was
resolved.
September 12, 2007 - The Law Firm amends their Originating Notice of Motion
to add a Charter argument.
September 18, 2007 - A Queen’s Bench Master allows the amendments to the
Originating Notice of Motion.
Page: 4
September 20, 2007 - The Law Firm, on behalf of the Building Trades, files the
Amended Originating Notice of Motion in the Main
Application, claiming, additionally, that the O.C. should be
quashed because it contravenes s. 2(d) of the Charter.
October 10, 2007 - Local 777 gives notice of its objection to the Law Firm’s
representation of the Building Trades in the Main
Application, based on conflict of interest.
October 18, 2007 - The Law Firm advises Local 777 that it no longer
"currently" acts for any CEP entities.
October 18, 2007 - Counsel for Local 777 requests that the Law Firm provide
it with information relating to the Law Firm’s
representation of any CEP entities during the relevant time.
October 26, 2007 - The Law Firm refuses to provide Local 777 with the
requested information.
October 30, 2007 - Local 777 files this motion to disqualify the Law Firm
from continuing to represent the Building Trades.
[6] Initially, there were no respondent trade unions participating in the Main Application as
neither Local 777, nor any other Local of the CEP, had any interest in the litigation. However,
two things occurred after the Main Application was commenced that convinced Local 777 to
become more involved. The first was that on February 23, 2006, Local 777 entered into a
collective agreement with Horizon for certain employees under the terms of the O.C. and Part 3,
Division 8 of the Code [the “Collective Agreement”].
[7] The second change was court-driven, as the Supreme Court of Canada released its
decision in Health Services & Support-Facilities Subsector Bargaining Assn. v. British
Columbia, 2007 SCC 27 [“Health Services”] on June 7, 2006. The Health Services case was of
interest to the Law Firm because it perceived that the Supreme Court of Canada, in holding that
the process of collective bargaining was protected under s. 2(d) of the Charter, had given the
Law Firm a new tool with which to impugn procedures that it felt were inamicable to the
Building Trades’ freedom of association. The decision in Health Services convinced the Law
Firm that it should amend the Notice of Motion to include an alleged violation of s. 2(d) of the
Charter, in addition to the administrative law grounds previously pled.
[8] After Local 777 made inroads into the Oil Sands Project by getting some of its members
employed with onsite subcontractors, Local 777 obtained judicial leave to be added as a
Respondent in the Main Application. When it was first added to the litigation, Local 777 had its
own counsel acting for it and did not raise any conflict issues with the Law Firm until a
considerable time later.
Page: 5
[9] Local 777 was content with the Law Firm’s retainer until after the addition of the Charter
grounds to the Originating Notice of Motion. At some point after the amendment, Local 777
perceived that the interests of the Building Trades in this action were directly adverse to the
immediate interests of Local 777 and some of the other CEP Locals formed under the umbrella
of the national union. One senses the fear of the CEP and its Locals in that if the Building Trades
are successful in this action, Division 8 of Part 3 of the Code could be challenged and possibly
declared to be of no force and effect, which could render the Collective Agreement between
Local 777 and Horizon void, to the very real detriment of the Local 777 members. Nothing in
this judgment should be interpreted as expressing any view whatsoever on the validity of the
relevant sections of the Code or whether that outcome would effect existing collective
agreements; it is simply a recitation of a risk that Local 777 does not want to face now that its
members are onsite at the Oil Sands Project.
III. The nature of the CEP
[10] The CEP is a national trade union governed by a constitution which defines both the legal
structure of the CEP and the relationship between the CEP and its local unions [the “Locals”].
The Locals are trade unions within the meaning of the Code, and thus hold certifications issued
by the Alberta Labour Relations Board authorizing the Local to act as the exclusive bargaining
agent for its members. The structure of Local 777 permits separate bargaining units representing
different categories of workers to fall under its umbrella (occasionally referred to as Composite
Locals). One of these Composite Locals is Local 777-C, a unit that exclusively represents
construction workers and which has been engaged to perform construction work on the Oil
Sands Project. The real Applicant here is Local 777-C, but it is litigating under the provincial
umbrella of Local 777.
[11] Both counsel during argument were hard-pressed to liken the union movement to any
other widely understood business models including partnerships, corporations and subsidiaries,
and franchisees. Although the union model and its related associations do not fall into an easily
defined business model, they would be most similar to a benevolent society or a church, which
may have a titular head but is primarily comprised of local organizations that operate with
delegated authority similar to a “licencing” arrangement. The individual Locals operate nearly
autonomously in the provinces, and even at more localized levels within the province through
the operation of the Composite Locals. The CEP is an extremely large and inclusive national
union that accommodates many trades, callings and occupations. The individual Locals may
have very little in common with each other in terms of trade, calling or needs.
[12] The overarching structural key to the organization is the Locals’ independence from the
national union. This is guaranteed by their enabling constitutional documents, which include but
are not restricted to the ability to bargain, have independent officers, their own elected
representatives, their own bylaws, and the ability to conduct normal business relationships
including owning property, banking and engaging legal counsel, all independently of the national
Page: 6
union or any other provincial Local. In addition, the Code recognizes each Local as a separate
legal entity with bargaining rights on behalf of the workers who have signed up to belong to it.
[13] The above description explains why Local 777 had to embarrassingly ask the Law Firm
to supply detailed information as to the legal work undertaken by the Law Firm for the national
CEP or its other Locals. There are simply so many recognized bargaining groups under the large
national umbrella of the CEP that neither the provincial nor the national heads of the union have
the ability to access this information. Further, it does not appear that the individual Locals were
inclined to reveal this information either. During the course of this dispute, when the Law Firm
declined to take new business from the various CEP Locals because of the allegations of conflict
made by Local 777, the backlash against Local 777 was pronounced and the upper management
of Local 777 had to write a letter to its Locals to explain its actions in bringing this Application.
Most law firms would love to have that level of respect shown to them.
[14] In short, the “head office” of the national union wants to remove the Law Firm from the
file and one suspects that some Locals, namely those disengaged from matters involving the Oil
Sands Project, want the Law Firm to continue to act for them on unrelated matters.
IV. Issues
[15] There are two legal issues that require determination:
1. Is the Law Firm required to disclose the work that it was doing at the relevant
time for all CEP Locals not involved in the Main Application?
2. Do the facts in this case give rise to a conflict of interest that prohibits the Law
Firm from continuing to act for the Building Trades in the Main Application and
if so, what is the appropriate remedy?
V. The position of the parties
[16] As a preliminary matter, Local 777 first requests that the Court compel the Law Firm to
disclose a full file list of the legal work the Law Firm may be doing, or was doing at the relevant
time for various composite locals of Local 777. The Law Firm resists this request on the basis of
client confidentiality and solicitor-client privilege.
[17] The second aspect, which is the crux of this application, is Local 777's request to have
the Law Firm declared to be in a conflict of interest with respect to the Main Application, on the
basis that it owes a duty of loyalty to Local 777. In support of this application, Local 777 asserts
that at the relevant and material time, it was a client of the Law Firm and as such, the Law Firm
is under a duty of loyalty which requires it not to take cases that are directly adverse to the
interests of Local 777. Local 777 now has a vested interest in the Oil Sands Project because
various subcontractors involved in the development of the Oil Sands Project have collective
Page: 7
agreements with Local 777 members. Local 777 submits that if the Building Trades are
successful in the Main Application with respect to the Charter argument, such a result might
lead to a constitutional challenge to the validity of Part 3, Division 8 of the Code which could
render the Collective Agreement void. Further, as Local 777 is now a named litigant, there is a
direct conflict if the Law Firm acted for Local 777 at the time it was added to the litigation.
[18] The Law Firm asserts that there is no dual representation and that it did not act for Local
777 at the relevant time. In the alternative, the Law Firm argues that Local 777 either waived any
conflict or consented to any dual representation.
[19] The Law Firm’s more detailed argument is that any of the non-related work which it
performed to advance the interests of other CEP Locals does not oblige the Law Firm to cease
acting for other clients simply because the end result of the Main Application may pose strategic
difficulties for Local 777 on a wider provincial or national level.
[20] Both parties concede that the alleged conflict here is grounded in the existence of a duty
of loyalty and is not rooted in any wider information-based conflict. Whether or not a conflict
exists is a matter of perspective: if the Court takes a narrow view of who the client is, there may
be no conflict, while a wider view may result in a conflict.
[21] Alternatively, if the Court does find that there is a conflict of interest, the Law Firm
asserts that it should be restricted from representing the Building Trades only with respect to the
Charter challenge to the O.C.. While this seems to a casual reader to be a distinction without a
difference, Local 777 concedes that it has raised the conflict issue only as it relates to the
Charter argument. Thus, irrespective of the ruling on the conflict, Local 777 requests only that
the Law Firm disqualify itself and engage independent legal counsel for the Charter-based
portion of the main application.
VI. Ruling
[22] For the reasons set out herein, both issues are answered in the negative and the
application is dismissed.
VII. Legal analysis
[23] I first deal with the preliminary issue raised by Local 777, namely whether the Law Firm
should be forced to disclose the identity of its other CEP Local clients and the nature of the
matters for which it has been retained by these clients so that Local 777 can frame its case
against the Law Firm. The Law Firm resists this on the basis of solicitor-client privilege.
[24] I accept the Law Firm’s argument that a Court Order requiring the Law Firm to provide
Local 777 with the requested information would result in a violation of solicitor-client privilege.
A useful analogy is that of a father attempting to access the legal records of his adult son without
Page: 8
the son’s consent, simply because they share the same surname. The Law Firm’s thesis here is a
good one, particularly since Local 777 is seeking the information to build a conflict case against
the Law Firm based on nothing more than a duty of loyalty. It would be reasonable to think that
if there was a true conflict, the provincial organization would be able to access this information
readily from the various Locals. In any event, no such Order could be made without first giving
notice to each of the Locals that would be affected by the Order.
[25] I decline to grant Local 777's request that the Law Firm be forced to disclose the nature
of the private dealings between itself and the other Locals, which are properly constituted
separate legal entities. The fact that the Locals fall under the CEP umbrella and receive their
power from the same constitution does not change their status as separate legal entities that are
entitled to enjoy solicitor-client privilege over their own personal legal affairs.
[26] Local 777 also asked the Court to examine the Law Firm’s files to test the accuracy of
the latter’s assertion that it has not in the past and does not currently act for Local 777. I note that
the burden of proving, on a balance of probabilities, the factual underpinnings of a conflict is on
Local 777; I do not view it as the Court’s role to engage in an investigative or inquisitorial role
in collecting and gathering the evidence. Furthermore, Don Boucher, the Administrative Vice-
President of the Western Region of the national CEP, who filed a lengthy affidavit in support of
this application, was unable to clearly identify during cross-examination any entities of CEP that
had an ongoing relationship with the Law Firm as at the date the amended Originating Notice of
Motion was filed. Although a past solicitor-client relationship can still trigger a duty of loyalty,
Mr. Boucher’s evidence goes a long way in satisfying me that Local 777 has not made a prima
facie case that it has a solicitor-client relationship with the Law Firm, particularly if one takes a
narrow view of who the client is in circumstances such as these.
[27] I turn to the second issue of whether there is a conflict in this case. This issue is topical
and fueled by several pressures: the escalating complexity of litigation; the growing mobility of
lawyers and clients; and the increasing diversity of business structures based on tax, geographic,
legal, and other considerations. These pressures, coupled with the expanding duties of law firms
articulated by the Supreme Court of Canada, make it more difficult for lawyers to ascertain when
they are in a conflict situation. The easy cases are simple to solve, but cases that nibble at the
edge of the business and societal issues confronted in this type of case are harder to handle. A
case such as this where structurally, and presumably for good social, economic and political
reasons, a large union works in more manageable smaller groups raises many of the issues about
which both the Supreme Court of Canada and the Canadian Bar Association have expressed
concern.
[28] The benchmarks of a conflict analysis are anchored on two decisions of the Supreme
Court of Canada in MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, and in R. v. Neil, 2002
SCC 70 [“Neil”]. Taken together, these decisions confirm that the traditional narrow view of
conflict, which focused on “information in the possession of the lawyer” and the “risk of harm”,
have given way to a greater duty of loyalty, which goes beyond the traditional protection of
information. The duty of loyalty to current clients also includes a much broader principle of
Page: 9
avoidance of conflicts of interest, in which confidential information may or may not play a role:
Neil, at para. 17.
[29] However, the duty of loyalty, while essential to the integrity of the justice system,
requires the Court to take a contextual approach:
Lawyers are the servants of the system, however, and to the extent their mobility
is inhibited by sensible and necessary rules imposed for client protection, it is a
price paid for professionalism. Business development strategies have to adapt to
legal principles rather than the other way around. Yet it is important to link the
duty of loyalty to the policies it is intended to further. An unnecessary expansion
of the duty may be as inimical to the proper functioning of the legal system as
would its attenuation. The issue always is to determine what rules are sensible and
necessary and how best to achieve an appropriate balance among the competing
interests.
Neil, at para. 15 [emphasis added].
[30] To whom is this wider duty of loyalty owed? Local 777 takes the position that the Law
Firm owes it a duty of loyalty, while the Law Firm asserts there is no such duty owed to this
particular legal entity.
[31] In October of 2007, the Canadian Bar Association Task Force on Conflicts of Interest
released its study paper entitled “Developing an Effective and Practical Conflict of Interest
Regime” [the “CBA Report”]. While the CBA Report does not represent the views of the
Canadian Bar Association or its executive, it is nevertheless useful as a starting point in
summarizing the problems confronting lawyers with respect to conflicts and in attempting to
align and reconcile some of the cases in this area. The CBA Report also contains reasonable
suggestions as to the future direction of conflict management.
[32] At pages 21-22 of the CBA Report, the Task Force notes that:
We are uneasy about the extension of professional obligations to near-clients, if
the lawyer has neither understood nor accepted such obligations.
...
With respect to the application of the duty of loyalty, save in exceptional
circumstances, the lawyer should not be required to extend a duty not to act in
unrelated matters to the near-client.
[33] The background for this unease flows from the fact that the business world is moving to a
more widely based specialist retainer, rather then the more traditional “Family Lawyer”
approach, which the Task Force sees as exacerbating the problem. The CBA Report proposes
that the solution is to invite a more definitive statement from the CBA, the various law societies,
and perhaps the courts, in order to better delineate the situations giving rise to a conflict. The
Task Force is attracted to “a presumption that unless there is evidence that the lawyer was
Page: 10
assuming a client-lawyer relationship to an entity other than the retaining client ... a client -
lawyer relationship should only extend to the retaining client”: CBA Report, at page 21.
[34] I have concluded that it is appropriate to take a narrow view of who the client is in this
case because of the degree of independence each Local has in the CEP structure. A wide view is
also discouraged on public policy grounds because from a practical point of view, it could
prevent any of the local unions from ever being able to retain a lawyer. For example, one of the
CEP’s Locals may represent agricultural farm workers, which, given the cyclical nature of
agricultural work, may have limited or very little business in the course of a year. If a labor
lawyer, having agreed to act for that local union, could never subsequently accept any case from
that local or any other local that the national union or the provincial head office viewed as
creating a conflict of loyalty, legal services would not trickle down to the smaller local
organizations. Taking this wide approach could even negatively affect the CEP itself in the
future, as it would open the door for other unions, or even one of its own Locals, to raise the very
same type of conflict issue every time the CEP tries to retain legal counsel. We have already
seen in this case the mischief that such an allegation has brought about; the Law Firm, which is
in-demand and highly skilled in the area of labour law, has closed its door to any CEP locals that
wish to hire it in the future, pending the outcome of this application.
[35] Taking a wide view to the conflict issue would force the labour movement to move all of
its legal work to in-house counsel or to hire specific, union-dedicated lawyers who would act
only for that particular union. This too would be problematic because the broad scope of the
union movement, as illustrated by a highly successful union like the CEP, inevitably lends itself
to circumstances where Locals are in conflict. Although not relevant to our issue here, both
counsel were able to identify cases where the same union had Locals engaged in disputes with
each other.
[36] Thus, to circumvent the mischief that would come from declaring the Law Firm to be in a
conflict situation, it appears to me that the appropriate approach in the context of union locals is
to take a narrow view of who the client is. As such, I accept the position of the Law Firm that
this particular legal entity, Local 777-C, [litigating as Local 777], which is concerned with the
Oil Sands Project, is not the client to whom it has provided legal services and it does not owe a
duty of loyalty to that entity.
[37] The Law Firm raises another issue: it asserts that there is no existing legal authority for a
law firm that is not otherwise in a conflict to be put in a conflict simply by expanding the legal
grounds advanced in the course of an application. In this case, Local 777 did not bring up any
conflict of interest issue with the Law Firm until the latter raised a Charter argument. In Neil,
the Supreme Court of Canada recognized at para. 14 that making claims of conflict for purely
tactical reasons is an objectionable practice:
If a litigant could achieve an undeserved tactical advantage over the opposing
party by bringing a disqualification motion or seeking other "ethical" relief using
"the integrity of the administration of justice" merely as a flag of convenience,
fairness of the process would be undermined.
Page: 11
[38] In my opinion, Local 777 made a strategic decision not to become involved in the initial
application because if the Law Firm was successful with respect to mere procedural
irregularities, this result would have an insignificant effect to Local 777 over the long run.
However, Local 777 changed its position and decided to become involved once the Charter
grounds were raised because if the Law Firm was successful with respect to the Charter
argument, such a result might lead to future constitutional challenges to the Code which might
jeopardize the Collective Agreement between Local 777 and Horizon. The Law Firm argues that
the Courts ought not to expand the duty of loyalty to include legal arguments advanced during
the course of an application. One sees merit in this submission, as virtually all cases have
implications beyond the immediate litigants. It would mean, for example, that a law firm could
never take a case where it argued on behalf of a group of workers in favour of a municipal bylaw
to close stores on a certain day of the week if the firm had ever acted for a merchant who would
benefit by having its shop open on that particular day. The existence of societal conflict and the
recognition that the benefit to one often results in harm to another would mean that the legal
profession would become paralyzed if lawyers were obliged to analyze whether the legal
arguments raised would be in conflict with the interests of clients.
[39] The Law Firm also raises the issue that Local 777 may have delayed in raising this
conflict issue. While there appears to be some delay on the face of the record, the evidence in
this regard is ambivalent, as Local 777 has taken the position that the Charter challenge
constituted a conflict of interest during other hearings before the L.R.B. The L.R.B. never had to
adjudicate the conflict issues before it because the cases were all resolved to the satisfaction of
the parties. However, because I have concluded that there is no conflict of interest in this case
because the Law Firm did not owe a duty of loyalty to Local 777 based on a narrow view of the
client, I do not need to consider the impact of delay, or implied waiver, in advancing the
allegation of conflict. However, if the Applicant was successful in establishing that there was a
conflict, the delay would have to be egregious, or there would have to be evidence of informed
consent to the continued existence of the conflict, before an aggrieved client could lose a remedy
to which it is otherwise entitled.
[40] In argument, the Law Firm was prepared to undertake (irrespective of the outcome of
this ruling) not to file a constitutional notice which could have the effect of striking down the
sections of the Code that allow notional certification by Order-in-Council. In my view, it does
not have to go that far; the Law Firm is entitled to advance the claim of its client in such manner
as it wishes and it does not have to handcuff itself with any such undertaking. Nor is this ruling
intended to prevent the Law Firm from continuing to accept CEP Locals as clients, although its
retainer agreements with the building trades or its other clients may prevent this.
[41] I also wish to deal with the appropriate outcome in this case in the event that I am wrong
in finding that there is no conflict of interest in this case. Had I concluded here that there was a
conflict, I would nevertheless not have forced the Law Firm off the entire file; my ruling would
have restricted the remedy to require the Law Firm to disqualify itself only with respect to the
argument relating to the Charter challenge raised by the amendment in the Notice of Motion. If
the Law Firm were to retain a non-associated consultant (such as a constitutional expert from
Page: 12
one of the law faculties) to argue the Charter portion of the application, I would have permitted
the Law Firm to continue to represent the Alberta Building Trades in the remainder of the
application, despite the existence of any conflict. It should be repeated and emphasized that the
CEP position did not require anything further. I would also base that restrictive ruling on the
fact that the law firms practicing in the area of labor law, like lawyers in rural Alberta, are in
short supply. Clients who wish to hire them should not lightly have that choice taken away from
them. In addition, a full withdrawal would not have been warranted in this case as there was no
conflict at the commencement of the Main Application and considerable litigation efforts had
been expended by the Law Firm on behalf of its client up until the time that the conflict
allegations were first raised.
VIII. Costs
[42] The Law Firm is successful in the outcome. The Law Firm has requested solicitor-client
costs, while the CEP argued that given the public policy issues raised in this application, each
party should bear its own costs. I conclude that the Law Firm is entitled to party/party costs,
based on Schedule C, Column 5 of the Alberta Rules of Court, for a contested special application
(item 8), plus related disbursements.
Heard on the 20 day of February, 2008.
Dated at the City of Edmonton, Alberta this 16th day of April, 2008.
A.W. Germain
J.C.Q.B.A.
Appearances:
Shona A. Moore, Q.C.
Moore & Company
for the Applicants/Respondent on this motion
Simon Renouf, Q.C.
Simon Renouf Professional Corporation
for the Respondents/Applicant on this motion

Anonymous said...

Finally some CEP news for a change on a CEP blog. The soon to be merged with CLAC. Yet again the CEP jumps in bed with CLAC again for another dues wasting joint legal venture against the Alberta Building Trades.