Indexed as:

State Mortgage Corp. v. Trecapelli

Between

State Mortgage Corporation, (plaintiff), and

Patricia Trecapelli, John Domenic Trecapelli, John Mark

Trecapelli, Nellie Bernyk, 785097 Ontario Inc., 771976 Ontario

Inc., Robert A. Service & Associates Ltd., 759115 Ontario Inc.

and 1204540 Ontario Limited, (defendants/respondents (except

for Robert A. Service & Associates Ltd.))

And between

Patricia Trecapelli, John Domenic Trecapelli, John Mark

Trecapelli, Nellie Bernyk, 785097 Ontario Inc., 771976 Ontario

Inc., 759115 Ontario Inc. and 1204540 Ontario Limited,

(plaintiffs by counterclaim/respondents), and

State Mortgage Corporation, Alvin Disterheft (also known as Al

Disterheft), Nigel Axton (also known as Nigel Stephens), West

Promenade Investments Limited, Solmon Rothbart Goodman, Mel

Solmon, Mark L. Goodman, 1146731 Ontario Limited, 997724

Ontario Inc. and John Vangeloff, (defendants by

counterclaim/appellants (Solmon Rothbart Goodman))

[1998] O.J. No. 5228

Docket No. C28554

 Ontario Court of Appeal

 Toronto, Ontario

Morden A.C.J.O., Austin and Rosenberg JJ.A.

Heard: December 4, 1998.

 Judgment: December 14, 1998.

(2 pp.)

Barristers and solicitors -- Relationship with client -- Conflict of interest -- Situations resulting in a conflict.

Appeal from an order removing solicitors due to a conflict of interest resulting from an earlier matter.

HELD: Appeal dismissed. The motions judge properly found that the confidential information relevant to the respondent Trecapelli's credibility was imparted to the solicitors as a result of the earlier matter. The respondent's credibility was a critical issue in this case.

Counsel:

David Roebuck, for the appellants.

Raymond G. Colautti, for the respondents.

The following judgment was delivered by

1     THE COURT (endorsement):-- In view of the concurrent positions of the appellant and respondent, we are prepared to assume that the order of Cameron J. is a final order. While Cameron J. made no express finding that the earlier matter was related to the new action there is a clear and sufficient basis for making such a finding. There is also a basis for finding, as did the motions judge, that as a result, confidential information relevant to the respondent Patricia Trecapelli's credibility was imparted to the solicitors. As he pointed out, Mrs. Trecapelli's credibility will be a critical issue in the case.

2     Having regard to the issues raised in the May 1997 action, we would regard it as a "new" action and as far as it is concerned, there was no delay.

3     Accordingly the appeal is dismissed with costs.

MORDEN A.C.J.O.

 AUSTIN J.A.

 ROSENBERG J.A.

cp/d/jjy/DRS