Inquiries (section 42)
STEEL PILING PIPE
Inquiry No. NQ-2012-002
Tuesday, September 18, 2012
Thursday, October 4, 2012
TABLE OF CONTENTS
IN THE MATTER OF an inquiry, pursuant to section 42 of the
Special Import Measures Act, respecting the dumping and
subsidizing of carbon and alloy steel pipe piles, commonly
identified as piling pipe, in outside diameter ranging from 3 1/2
inches up to and including 16 inches (8.9 cm to 40.6 cm) inclusive,
in commercial quality and in various forms and finishes, usually
supplied to meet ASTM A252, ASTM A500, CSA G.40.21 or comparable
specifications or standards, whether single, dual or multiple
certified, originating in or exported from the People’s Republic of
China, excluding carbon steel welded pipe, in the nominal size
range of 3 1/2 inches up to and including 6 inches (89 mm to 168.3
mm) in outside diameter, in various forms and finishes, usually
supplied to meet ASTM A252 or equivalent specifications, other than
carbon steel welded pipe in the nominal size range of 3 1/2
inches up to and including 6 inches, dual-stencilled to meet the
requirements of both specification ASTM A252, Grades 1 to 3, and
specification API 5L, with bevelled ends and in random lengths, for
use as foundation piles;
AND FURTHER TO a notice of motion filed on behalf of Pipe &
Piling Supplies Ltd. on August 31, 2012, under subrule 24(1) of the
Canadian International Trade Tribunal Rules, for an order
disqualifying all counsel of the firm Miller Thomson LLP from
acting as counsel of record for DFI Corporation in these
The Canadian International Trade Tribunal hereby dismisses the
Pasquale Michaele Saroli
Pasquale Michaele Saroli
Jason W. Downey
Jason W. Downey
1. On August 31, 2012, Pipe & Piling Supplies Ltd. (P&P)
filed a notice of motion with the Canadian International Trade
Tribunal (the Tribunal), pursuant to subsection 24(1) of the
Canadian International Trade Tribunal Rules,1 requesting an
order disqualifying all counsel of the firm Miller Thomson LLP
(MT), by reason of conflict of interest, from representing DFI
Corporation (DFI) or any party that is opposed in interest to
P&P in these proceedings.
2. This motion arises in the context of the proceedings that
followed the issuance of a notice of commencement of inquiry by the
Tribunal on August 3, 2012, pursuant to section 42 of the
Special Import Measures Act.2
3. On August 13, 2012, DFI, a domestic producer of steel piling
pipe, filed a notice of participation in these proceedings. Also on
August 13, 2012, Mr. Dalton J. Albrecht, of MT, filed a notice of
representation as counsel for DFI.
4. In its motion, P&P alleged that Mr. Albrecht and MT are
in a situation of conflict of interest because of MT’s
representation of P&P on various litigation, corporate and
commercial matters relating to its operations in Alberta and
British Columbia over approximately a 28-year period. P&P
alleged that, over the course of this relationship, MT had access
to P&P’s confidential information, including information that
may be relevant to these proceedings. P&P referred, in
particular, to MT’s representation of P&P in a matter involving
a shipping company transporting piling pipe from China to Canada.
P&P submitted that, as an importer of steel piling pipe opposed
to a finding of injury in this inquiry, its interests are directly
adverse to those of DFI, who supports a finding of injury in these
proceedings. P&P based its motion on the tests set out in
MacDonald Estate v. Martin3 and R v.
Neil,4 as well as the Rules of Professional
Conduct of the Law Society of Upper Canada.
5. On September 4, 2012, the Tribunal wrote to Mr. Albrecht,
requesting that a response to the notice of motion be filed no
later than September 6, 2012.
6. On September 4, 2012, the Tribunal received a letter from Mr.
Albrecht, informing the Tribunal that DFI was in the process of
retaining counsel to represent it on the motion and asking the
Tribunal, on behalf of DFI, for an extension of time until
September 7, 2012, for DFI to file a response. In his letter,
Mr. Albrecht indicated that he had been working with DFI on
this matter for over 12 months, that he did not agree that DFI is a
party directly adverse in interest to P&P in these proceedings,
that MT had conducted conflict checks when retained by DFI and that
no record of any conflicts with P&P existed, that he personally
had no knowledge that P&P was a client of MT when he was
retained by DFI, and that MT offered to put ethical screen
arrangements in place once it learned of P&P’s interest in this
inquiry and P&P’s objection to MT’s involvement with DFI.
7. On September 5, 2012, the Tribunal granted the request for an
extension of time for DFI to file a response.
8. On September 7, 2012, the Tribunal received submissions from
DFI. In its response, DFI questioned whether P&P has standing
to bring the motion, as it is not clear whether the confidential
information referred to by P&P relates directly to P&P or
one of its affiliates. DFI argued that P&P failed to
demonstrate that the confidential information in MT’s possession is
relevant to the current proceedings or that its use could be
9. DFI further submitted that although DFI and P&P have
competing interests, they are not directly adverse in the sense of
one seeking relief against the other. DFI referred to the tests
articulated in MacDonald Estate and Neil, and
also referred to Strother v. 3464920 Canada
Inc.,5 which, DFI argued, modifies the test
articulated in Neil. DFI also stressed its right to be
represented by its chosen counsel.
10. P&P filed a reply on September 12, 2012, in which it
submitted, inter alia, that P&P is a current client of
MT, and referred to a recent and continuing matter in which MT
represented P&P on a commercial agreement for the supply of
relevant imports by one of the major exporters identified in the
complaint filed by Atlas Tube Canada Inc. With respect to the issue
of standing, P&P submitted that, because of the close
relationship between P&P and its affiliates, P&P did not
find it necessary to file notices of participation for each of the
regional affiliates in this case.
11. P&P also submitted that there are numerous examples
where courts and tribunals have prohibited law firms from acting
against companies affiliated with a client or former client.
P&P emphasized that it and its affiliates are current clients
of MT and that in none of the previous Tribunal decisions dealing
with conflict of interest had the party claiming a conflict had
such an extensive and close-knit relationship with the counsel they
were seeking to disqualify.
12. On September 13, 2012, DFI filed a letter in response to
P&P’s reply, arguing that the reference in P&P’s reply to
MT’s work on a commercial agreement for the supply of relevant
imports introduced new evidence that should have been raised in the
notice of motion. DFI also restated its concern that P&P has
failed to properly substantiate the grounds of its motion or to
demonstrate how confidential information relating to the commercial
agreement is relevant and prejudicial to P&P in these
13. On September 14, 2012, P&P filed a letter in response to
14. As a preliminary matter, the Tribunal must address the issue
of standing. The Tribunal finds that the existence of separate
legal entities is not, in and of itself, sufficient to constitute a
barrier to raising arguments alleging a conflict of interest. If a
party is concerned that its interests are being affected by the
existence of a real or potential conflict, the Tribunal considers
that this is a sufficient basis to allow that party to raise the
issue, for example, by bringing a motion such as this one. In any
event, the Tribunal is of the view that the additional information
raised in P&P’s reply (namely, the commercial agreement
relating to the importation of steel pipe) appears to relate to
P&P directly, not one of its affiliates. Therefore, the
Tribunal finds that P&P has standing to raise this matter with
15. The Tribunal also agrees with P&P’s submission that, in
the present inquiry, DFI’s position is adverse in interest to
P&P’s. Even if this inquiry is not a litigation opposing
P&P and DFI per se, the fact remains that DFI is
supporting the imposition of anti-dumping and countervailing duties
against imports of steel piling pipe from China, a result which is
adverse to P&P’s commercial interest. Indeed, P&P is an
importer of steel piling pipe from China and, as such, is one of
DFI’s competitors in the marketplace. It is clear that the cost of
P&P’s imports could increase significantly, should the Tribunal
make a positive injury finding as is requested by DFI. Thus, the
motion cannot be dismissed on the grounds that there is no
“adversity” in the interest of P&P and DFI in this inquiry.
16. The existence of a long-standing relationship between MT, as
legal counsel, and P&P, as its client, in respect of other
matters is admitted. The Tribunal will examine whether MT’s
representation of DFI in this inquiry gives rise to a real or
reasonably perceived conflict of interest in view of its previous
or current representation of P&P in respect of other
17. In determining whether a conflict of interest exists in the
present circumstance, the Tribunal is bound by three decisions of
the Supreme Court of Canada: MacDonald Estate,
Neil and Strother. These decisions establish that
a lawyer’s duty to avoid conflicts of interest includes, notably, a
general duty of loyalty and a duty of confidentiality.
18. In MacDonald Estate, the Supreme Court set out the
appropriate test for determining if a disqualifying conflict of
interest exists, where confidential information is involved:
Typically, these cases require two questions to be answered: (1)
Did the lawyer receive confidential information attributable to a
solicitor and client relationship relevant to the matter at hand?
(2) Is there a risk that it will be used to the prejudice of the
19. On the first question, the Supreme Court indicated that
“. . . once it is shown by the client that there
existed a previous relationship which is sufficiently
related to the retainer from which it is sought to remove the
solicitor, the court should infer that confidential information was
imparted unless the solicitor satisfies the court that no
information was imparted which could be relevant” [emphasis added].
On the second question, the Supreme Court determined that a lawyer
who has relevant confidential information is automatically
disqualified from acting against a client or former
20. Accordingly, with respect to the duty of confidentiality,
the Tribunal must examine whether Mr. Albrecht was likely
privy to confidential information relevant to the matter at hand as
a result of a solicitor-client relationship between MT and P&P.
To answer that question, the Tribunal must ask itself whether MT’s
retainers with P&P are relevant to the present proceedings.
21. In Neil, the Supreme Court addressed a lawyer’s
fiduciary duties more broadly and referred to the following
bright-line test, which speaks of a lawyer’s ability to represent a
client whose immediate interests are directly adverse to the
immediate interests of another current client and is relevant to
assess whether a lawyer’s duty of loyalty has been breached:
29 . . . Nevertheless it is the firm not just the
individual lawyer, that owes a fiduciary duty to its clients, and a
bright line is required. The bright line is provided by the general
rule that a lawyer may not represent one client whose interests are
directly adverse to the immediate interests of another current
client — even if the two mandates are unrelated — unless
both clients consent after receiving full disclosure (and
preferably independent legal advice), and the lawyer reasonably
believes that he or she is able to represent each client without
adversely affecting the other.
[Emphasis in original]
22. However, in Neil, the Supreme Court also recognized
the need to balance the importance of a lawyer’s duty of loyalty
against the realities of the legal system:
15 . . . 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.
23. Although the bright-line test in Neil suggests that
a lawyer may not represent one client whose interests are directly
adverse to the immediate interests of another current client, even
if the two retainers are unrelated, the Tribunal notes that the
Supreme Court was not dealing with unrelated matters. The decision
in Neil considered two conflict situations, one involving
the same matter and a second involving a strategically related
24. Finally, in Strother, the Supreme Court provided
useful guidance on the meaning and application of the bright-line
test expressed in Neil:
58 Exceptional cases
should not obscure the primary function of the “bright line” rule,
however, which has to do with the lawyer’s duty to avoid conflicts
that impair the respective representation of the interest of his or
her concurrent clients whether in litigation or in other matters,
e.g., Waxman v. Waxman 2004 CanLII 39040 (ON CA), (2004),
186 O.A.C. 201 (C.A.).
. . .
59 The spectre is flourished of long-dormant files mouldering
away in a lawyer’s filing cabinet that are suddenly brought to life
for purposes of enabling a strategically minded client to assert a
conflict for tactical reasons. But a court is well able to withhold
relief from a claim clearly brought for tactical reasons. Conflict
between concurrent clients where no confidential information is at
risk can be handled more flexibly than MacDonald Estate
situations because different options exist at the level of remedy,
ranging from disqualification to lesser measures to protect the
interest of the complaining client. In each case where no issue of
confidential information arises, the court should evaluate whether
there is a serious risk that the lawyer’s ability to properly
represent the complaining client may be adversely affected, and if
so, what steps short of disqualification (if any) can be taken to
provide an adequate remedy to avoid this result.
25. Based on its review of the relevant jurisprudence, the
Tribunal is of the view that the appropriate question to pose in
cases where no issue of confidential information arises is whether
there is a substantial risk that the purported conflict will impair
the respective representation of concurrent clients.
26. In assessing whether a disqualifying conflict of interest
exists in this case, the Tribunal is mindful of the competing
values articulated in MacDonald Estate, which must
underline its analysis: maintain the high standard of the legal
profession; the importance of a litigant’s choice of counsel; and
permitting reasonable mobility within the legal
profession.8 A party’s choice of counsel is a
particularly important consideration in the context of these
proceedings, given the short time frame within which the Tribunal
must make its finding and the advanced stage of the inquiry process
when this motion was brought. The Tribunal is of the view that
depriving DFI of its counsel of choice at this stage of the
proceedings would significantly impair its ability to participate
in the inquiry process.
27. Consistent with the approach taken by Sopinka J. in
MacDonald Estate,9 the Tribunal considers that
it is the party alleging the existence of a real or reasonably
perceived conflict that bears the onus of showing that the two
retainers are sufficiently related.10 The party alleging the
conflict must also provide sufficient evidence from which the
Tribunal can reach a conclusion on these matters.
28. To summarize, in disposing of the motion, the Tribunal must
first determine whether P&P has established that this inquiry
is sufficiently related to other MT retainers with P&P such
that the Tribunal should infer that relevant confidential
information was imparted and disqualify MT on that basis. If the
Tribunal finds that the matters are not sufficiently related and
that there is no risk of relevant confidential information being
used to prejudice P&P, the Tribunal must then assess whether
there is a substantial risk that MT’s representation of DFI will
impair its ability to represent P&P in respect of other
29. Turning now to the question of whether these proceedings are
sufficiently related to MT’s previous and ongoing representation of
P&P, the Tribunal notes that P&P has referred generally to
MT’s representation on litigation matters, corporate filings and
commercial contracts, but has only made specific reference to two
matters. The first is a matter involving a shipping company
transporting piling pipe from China to Canada and the second is a
commercial agreement for the supply of relevant imports with one of
the exporters identified in the complaint filed by Atlas Tube
Canada Inc. In its reply P&P also provided a list of invoices
for legal services provided by MT within the past 12 months and
submitted that these matters may also involve the transmission of
confidential information which may be relevant to this inquiry.
30. The first matter appears to be a reference to a claim in
small claims court for the recovery of an amount associated with
the shipping of piling pipe. The second matter was referred to as
“. . . a recent and continuing mandate to advise
[P&P] on a commercial agreement for the supply of relevant
imports with one of the major exporters identified in the
complaint”,11 which P&P submits is directly related
to the present inquiry. P&P also submitted a series of redacted
e-mails that refer to this transaction and the draft agreement.
31. The Tribunal finds that the evidence provided with respect
to these matters is insufficient for the Tribunal to conclude that
they are related to the present inquiry. In particular, a small
claims action for the recovery of money against a shipping agent
(regardless of the goods being shipped) is not sufficient to
establish a relationship that would raise a concern in this case.
Likewise, the list of invoices does not provide the Tribunal with
any information on the nature of the work done by MT or the
relevance of the work to the present inquiry.
32. With respect to the second matter referred to by P&P,
the evidence provided makes no mention of the parties involved, the
product specifications of the steel pipe or its country of origin.
As such, the Tribunal is not persuaded that MT is in possession of
relevant confidential information relating to P&P or that there
is a risk of any confidential information being used to the
prejudice of P&P.
33. In view of the limited evidence before it, the Tribunal is
also not persuaded that there is a serious risk that MT’s
representation of DFI in these proceedings will materially or
adversely affect its ongoing representation of P&P in respect
of other matters. In this regard, the Tribunal notes that P&P
has not explained how MT’s representation of DFI in these
proceedings would impair its representation of P&P in other
current matters. In these circumstances, the Tribunal is unable to
find that MT’s representation of DFI in this inquiry impairs its
ability to properly represent P&P in other matters. Thus, the
Tribunal finds that there is insufficient evidence to establish the
existence of a breach of MT’s duty of loyalty towards P&P.
34. The Tribunal further notes that, in Neil, the
Supreme Court observed that an unnecessary expansion of the duty of
loyalty may be inimical to the proper functioning of the legal
system. The issue is always to achieve an appropriate balance among
the competing interests. For this reason, a stringent application
of the bright-line test in situations where the same law firm is
concurrently acting for two parties with adverse interests, but in
unrelated matters, would pose significant problems for clients
seeking to be represented by the counsel of their choice. This is
particularly true in a situation such as this case, where MT’s
representation of both DFI and P&P is handled by different
lawyers, in different practice areas and in different cities. In
such circumstances, the Tribunal considers that each client’s
confidential information or right to proper representation is not
35. Accordingly, in the absence of clear evidence to that
effect, the Tribunal cannot conclude that MT has violated its
fiduciary obligations of loyalty and the protection of confidential
information belonging to P&P.
36. For the reasons stated above, the Tribunal hereby dismisses
1 . S.O.R./91-499.
2 . R.S.C. 1985, c. S-15.
3 .  3 S.C.R. 1235 [MacDonald
4 . 2002 SCC 70 [Neil].
5 .  2 S.C.R. 177
6 . MacDonald Estate at para.
7 . MacDonald Estate at paras.
8 . MacDonald Estate at para.
9 . MacDonald Estate at para.
10 . Chapters Inc. v. Davies, Ward &
Beck LLP, 2001 CanLII 24189 (ON CA) at paras. 29-30.
11 . Tribunal Exhibit NQ-2012-002-52,
Administrative Record, Vol. 1A at 140.