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REGIONAL WRAP-UP Court clarifies another conflict issue lawyers from acting against any client loosely affiliated with a company they work for. Lerners LLP lawyer Jasmine Akbarali, O who represented the plaintiff in McK- enna v. Gammon Gold Inc. with colleague Earl Cherniak, says the key issue in the case was "Who is your client? What is the scope of 'client?' There really wasn't much out there in terms of case law that talked about what sorts of obligations you might owe to a subsidiary of your client. "It was an interesting question, and it had a lot of potential to really revamp or expand the kinds of duties that lawyers would owe, because if you suddenly owe a duty to every member of a corporate family because you have done or are do- ing work for one member of that family, where does it end? . . . The potential for expansion of who is your client was in- credible." The court agreed with the argument that firms should not have to treat an entire corporate family as a client if their relationship is with one company within that entity. "We said they had as much to do with each other as blowing out a candle had to do with putting out a for- est fire," says Akbarali. The legal question arose in a securities class action against defendants including Gammon Gold Inc. The case involved accusations of prospectus misrepresen- tation and stock options manipulation, and is being prosecuted by Siskinds LLP. Two of Gammon Gold's public share of- fering underwriting syndicates — BMO Nesbitt Burns Inc. and TD Securities Inc. — are among the defendants in the class action. They opposed Siskinds' de- cision to prosecute. The syndicates argued Siskinds was in a conflict of interest as the Bank of Montreal and Toronto Dominion Bank had retained it on unrelated matters. The banks argued the firm should be barred from the case "because it is pros- ecuting an action against its own clients, or against entities whose interests are ntario's Superior Court of Jus- tice has put the brakes on a legal argument that could have kept inextricably entwined with its clients in breach of its retainer and of duties owed to them," according to the judgment. The underwriters argued they are clients or "near-clients." They said Sis- kinds was acting contrary to its contrac- tual, common law, and professional require- ments. But Justice Joan Lax ruled the motion to oust Siskinds was simply tactical. "The underwriters and the banks are separate and sophisticated business Jasmine Akbarali and legal entities that are individually governed and autonomous." They have created separate legal and business enti- ties for their member companies. "They cannot ignore this separation when it is convenient or provides tactical advan- tage, but maintain the separation when it is to their advantage to do this," she wrote. The judge noted the banks told Sis- kinds it would not be getting any future work from them after refusing to with- draw from the Gammon Gold class ac- tion. But, she added, "it is telling that they did not remove their existing files. If the banks had any real concern about Sis- kinds' loyalty to them or the impairment of their solicitor-client relationship, they would have terminated the retainers." Counsel for the defendants declined to comment on the case. If Lax's ruling stands, lawyers must now look for courts' opinions on where the line will be drawn on this issue, says Akbarali. — ROBERT TODD rtodd@clbmedia.ca Greater independence for N.B.'s human rights commission were put in place. Round two is now un- der way. The most recent recommendations I relate to the commission's perceived independence and impartiality includ- ing the need for adequate funding, re- porting directly to the legislature for its budget, and the removal of ministerial discretion in the appointment of a hu- man rights board of inquiry. As well, the commission is calling for updated ver- sions of the act in French and English so both versions actually say the same thing. Some of the proposed changes are breaking new ground, notes Wayne MacKay, a law professor at Dalhou- sie University in Halifax and a former director of the Nova Scotia Human Rights Commission. Of particular sig- nificance is the recommendation that two vice chairpersons with human 10 FEBRU AR Y 2009 www. C ANADIAN Law ye rmag.com ATLANTIC CANADA rights expertise be appointed to hear cases at the labour and employment board. At present, there is no standing human rights tribunal in New Bruns- wick. Instead, ad hoc boards of inquiry or labour and employment board pan- els are convened. "Each time this requires ministerial approval. That creates a situation, es- pecially where the government is the respondent," explains Jula Hughes, an assistant professor of law at the Uni- versity of New Brunswick in Frederic- ton and a consultant to the provincial n 2004, the first round of legislative changes and enhancements to the New Brunswick Human Rights Act