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Loretta Anne Rogers (left) leaves the TD Centre with Martha Rogers after a meeting at Torys LLP, in Toronto, on Oct., 21, 2021.Christopher Katsarov/The Globe and Mail

Three members of the Rogers family are attempting to stop law firm Torys LLP from representing some of the individuals who advise the family trust that controls Rogers Communications Inc. RCI-B-T

A legal application accuses Torys, a law firm with long-standing ties to the Rogers family, of taking sides in the high-stakes battle for control of Canada’s largest wireless carrier. It was filed in the Ontario Superior Court of Justice last month on behalf of Rogers family matriarch Loretta Rogers, and her daughters Martha Rogers and Melinda Rogers-Hixon.

The application asks the court to stop the firm from acting as counsel to six of the 10 members of the advisory committee to the Rogers Control Trust, which owns 97.5 per cent of the company’s voting class A shares. They are also asking the court to compel Torys to provide them with legal documents that they argue they are entitled to, such as meeting minutes, correspondence and invoices.

The application is still before the court, but Wojtek Dabrowski, a spokesperson for Loretta Rogers, said it “is in the process of being withdrawn.” Torys confirmed the application is being withdrawn and declined to comment further. The withdrawal could indicate the parties may attempt to settle the matter outside court.

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The boardroom conflict that divided the Rogers family erupted last fall, when Edward Rogers, the chair of the family trust and of the telecom’s board, attempted to replace the company’s chief executive officer, Joe Natale, with its chief financial officer, Tony Staffieri.

When the majority of the company’s board opposed the move, Mr. Rogers replaced five of the independent directors with his own slate of candidates. The reconstituted board then fired Mr. Natale and installed Mr. Staffieri as CEO, leading to a shakeup in the company’s upper ranks.

Before his death in 2008, Rogers founder Ted Rogers executed a will that established the Rogers Control Trust and the advisory committee that oversees it. The committee currently has 10 members, including Loretta and Martha Rogers, Ms. Rogers-Hixon, Mr. Rogers and Lisa Rogers, the eldest of the Rogers children.

Long-time Rogers lieutenants Phil Lind and Alan Horn are also members of the advisory committee, as well as Toronto mayor John Tory, Loretta’s nephew David Robinson, and Toby Hull, one of Ted’s closest childhood friends.

Torys prepared the will and has served as legal counsel to the advisory committee members, under a joint retainer, since the committee’s inception, according to court documents. The firm’s downtown Toronto office was the venue for a daylong, emergency meeting of the family trust last fall.

On Oct. 3, as the boardroom battle was under way, Torys sent a letter to the independent directors that claimed to be on behalf of the advisory committee. The letter threatened to forcibly remove the independent directors who had opposed Mr. Rogers’ attempts to overhaul the Toronto-based telecom’s management team.

The three family members said they were not consulted on the contents of the letter, which did not represent their views, according to court documents. “Torys was therefore taking a position directly contrary to the interests of its own clients pursuant to its joint retainer,” the application reads.

The three also took issue with a letter Torys sent on Oct. 4 to the telecom’s management, requesting a list of the company’s shareholders as a precursor to Mr. Rogers reconstituting the board.

None of the allegations have been proven in court.

On Oct. 12, Torys notified Ms. Rogers-Hixon, Martha and Loretta Rogers that it was withdrawing from its joint retainer but would continue to represent the interests of Lisa Rogers, Mr. Tory, Mr. Robinson, Mr. Horn, Mr. Lind and Mr. Hull. (Mr. Rogers had obtained his own legal counsel, the letter noted.)

Lawyers for the three family members argue that Torys’ continued representation of this subset of advisory committee members – without the consent of Ms. Rogers-Hixon, Martha and Loretta Rogers – is “a clear conflict” and violates the Law Society of Ontario’s rules of professional conduct.

“Torys cannot act or give advice against the applicants, who are now former clients, in advising other advisory committee members,” the document reads. The lawyers representing the three Rogers family members include Andrew McCoomb, a partner at Norton Rose Fulbright Canada, and criminal lawyer Frank Addario.

The three family members also allege that they are being denied access to legal files that they are entitled to.

“Torys owes a continuing duty of loyalty to the applicants. It cannot withhold information from some of its joint retainer clients because it elected to move forward with an engagement with some of its other joint retainer clients,” the application reads.

“The duty of loyalty does not disappear when counsel chooses sides.”

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