Volker Estate v. Volker, 2011 ABQB 691

Court of Queen ’ s Bench of Alberta Citation: Volker Estate v. Volker, 2011 ABQB 691 Date: 20111110 Docket: 0910 01079 Registry: Wetaskiwin Between: V.A. ( “ Bud ” ) MacDonald as Administrator Ad Litem of the Estate of Deborah Lee Volker, and V.A. ( “ Bud ” ) MacDonald on Behalf of the Minor Children Jeremy Volker, Jordan Volker and Janelle Volker Plaintiff - and - Brian Clarence Volker Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Brian R.

Burrows _______________________________________________________ [ 1 ] The Defendant, Brian Clarence Volker, seeks an order disqualifying Mr. Gordon Yake or any other member of the law firm Warren Sinclair, from acting for the Plaintiff in this action.

[ 2 ] Brian Volker and Deborah Lee Volker were husband and wife. The minor children named in the style of cause are their children. Deborah Lee Volker died on February 23, 2009. Mr. Volker was convicted of murder in respect of her death. In this action, the Estate of Deborah Lee Volker seeks damages for losses and expenses resulting from Ms. Volker ’ s death, which the Estate alleges was caused intentionally or negligently by Mr. Volker. The minor children seek damages from their father pursuant to the Fatal Accidents Act .

The firm Warren Sinclair is counsel for the Plaintiff, V.A. ( “ Bud ” ) MacDonald, who represents the Estate and the minor children in this action. Mr. Yake, a member of that firm, has conduct of the action on behalf of the Plaintiff. [ 3 ] Mr. Volker takes the position that it is a conflict of interest for the firm Warren Sinclair to act for the Plaintiff because it acted for Mr. Volker in the past and in stages of these proceedings preceding commencement of the action. [ 4 ] In his affidavit Mr. Volker swears that Mr.

Chris Warren of Warren Sinclair acted for him in the following matters: - the purchase with his parents of a quarter

section of land. - the preparation of his Will and that of his wife, in the course of which Mr. Warren reviewed with Mr. Volker and his wife their assets and the proposed distribution of them. - the purchase of leased lands. - the transfer of his house from his name into the joint names of he and his wife in 1999. [ 5 ] After Mr. Volker was charged with the murder of his wife, he was in custody in the Red Deer Remand Centre. Mr. Warren visited him there. Mr. Volker swears: The purpose of the meeting he advised was to take instructions to prepare a Power of Attorney for me.

During the course of that meeting, we discussed my assets and how the Power of Attorney would carry out his duties with respect to those assets. At the conclusion of this discussion, Mr. Warren brought out a document entitled Renunciation of Probate and advised me that as I was in custody, I had no legal rights to my deceased wife ’ s estate and so I had to sign this so that things could proceed. Throughout, I was looking only to Mr. Warren for legal advice in this matter. Although I had not contacted Mr.

Warren with instructions to prepare the Renunciation, I believed he had prepared this as my lawyer and so I signed it. . . . I understand that Mr. Warren did prepare a Power of Attorney. This document was forwarded to my criminal lawyer to bring to the Remand Centre for my signature as his agent. I am advised and do readily believe that on May 2, 2009, Mr. Warren met with my Attorney under the Power of Attorney, Mr.

Jones, who was subsequently appointed as interim administrator of the Estate of Deborah Volker, . . . and reviewed the assets of myself and the estate and advised what steps the Attorney was to take. [ 6 ] Mr. Warren has filed an affidavit in response to this application. In it he swears that he has never received any confidential or privileged information from Mr. Volker in relation to the allegations made against him in the Statement of Claim, or in relation to any issue arising out of the Statement of Defence.

He swears that he does not have any confidential information that could be used to the disadvantage of Mr. Volker.

[ 7 ] He confirms that “ as legal counsel for the Estate of Deborah Lee Volker ” he met with Mr. Volker in the presence of Patricia J. MacNaughton at the Red Deer Remand Centre on March 19, 2009. He notes that during this meeting Ms. MacNaughton was present and available to give legal advice to Mr. Volker. Mr. Volker ’ s sister and brother-in-law had contacted Mr. Warren because they were concerned about the financial welfare of the Volker children and the need to take action in relation to loans owed by Mr. Volker and his late wife. Mr. Volker was named as Executor in Ms. Volker ’ s Will. Mr.

Volker ’ s sister was the alternate. Mr. Volker ’ s sister did not think it was practical for Mr. Volker to take on the role of Executor. Therefore Mr. Warren prepared a Renunciation for Mr. Volker to sign. Mr. Volker ’ s brother-in-law had suggested that if Mr. Volker granted him Power of Attorney he would take steps to protect the family assets for the benefit of the children. [ 8 ] Mr. Warren swears that he, acting on the instructions of Mr. Volker ’ s sister and brother-in-law, sent the draft Power of Attorney and Renunciation to Ms. MacNaughton as he understood that she was his lawyer.

He discussed the documents with her. From the discussions he understood that Ms. MacNaughton wanted Mr. Warren to attend on Mr. Volker to explain the documents to him in her presence. [ 9 ] Mr. Warren swears that at the meeting he explained the duties of an Executor to Mr. Volker. Mr. Volker agreed that his sister was in a better position than he to act as Executrix of Ms. Volker ’ s Estate. As to the Power of Attorney, Mr. Warren says that Mr. Volker wanted some amendments to the document he had prepared. [ 10 ] Mr. Warren acknowledges that he prepared Mr.

Volker ’ s Will in 1993. [He has, in fact, exhibited his entire remaining file with regard to that retainer in his affidavit. I expressed concern at the hearing of this application regarding the solicitor-client privilege that would attach to those documents and invited Mr. Yake to consider what could be done to protect it at this point.] [ 11 ] Mr. Warren acknowledges acting for Mr. and Mrs. Volker in relation to the purchase and financing of a quarter section. That, he says, was the last time he or anyone in his firm acted for Mr. Volker. [ 12 ] Mr.

V.A. ( “ Bud ” ) MacDonald, the named Plaintiff, has also sworn an affidavit. Mr. MacDonald is a Calgary lawyer. He swears he had not received any of Mr. Volker ’ s confidential or privileged information from Mr. Warren. He does not intend to instruct Mr. Yake to call Mr. Warren as a witness at the trial of this action. [ 13 ] Ms. MacNaughton represented Mr. Volker in the criminal proceedings. She too provided an affidavit for this application. She swears that Mr. Warren contacted her on March 17, 2009 and indicated he wished to meet with Mr.

Volker, “ to take instructions with respect to a Power of Attorney and a Renunciation of Probate. ” She was present when Mr. Warren met with Mr. Volker at the Remand Centre on March 19, 2009. She swears she was not retained by Mr. Volker to provide legal advice with respect to the estate matters discussed at the meeting. She states, “ After hearing what was discussed between Mr. Volker and Mr. Warren, it was my opinion Mr. Warren was acting for Mr. Volker in these matters. ” [ 14 ] Subsequent to the meeting, Mr. Warren forwarded documents to Ms. MacNaughton to take to Mr. Volker for execution.

These included travel documents for the children, and a Power of Attorney. In respect of the latter, Mr. Warren wrote in his letter to Ms. MacNaughton: We also enclose four (4) copies of amended General Power of Attorney for your review. In the event you find the same to be in order, please arrange to have the same signed and returned to our office. . . . [ 15 ] Ms. MacNaughton replied two days later indicating that, “ We would like to discuss the Power of Attorney prepared by you and I will contact you in the near future. ” Ms. MacNaughton swears that Mr.

Volker had asked her to pass along his request for changes to the document to Mr. Warren. It was not until after Mr. Volker had signed the Power of Attorney and Renunciation that Ms. MacNaughton learned that Mr. Warren considered himself to be acting on behalf of the Estate of Deborah Volker and not on behalf of Mr. Volker in these matters. [ 16 ] The action in which this application is brought, though it was commenced in October 2009, has not progressed very far. A Statement of Defence and Affidavits of Records have been filed.

I gather the parties put the action “ on hold ” pending determination of the criminal proceedings. In July 2011 the Plaintiff filed an application for

Summary Judgment and an order directing the determination of damages. It has not yet been heard pending the outcome of this application.

[17] The appropriate test to be applied in applications of this type was determined by the Supreme Court of Canada in MacDonaldEstate v. Martin (SCC), [1990] 3 S.C.R. 1235.

After canvassing the law of Canada and several other jurisdictions,Sopinka J. addressed the correct approach to be taken by the Canadian courts. [18] He observed the test to be applied must, “. . . satisfy the public requirement that there be an appearance of justice” and thatwhether confidential information obtained in the course of a solicitor-client relationship might be used to the prejudice of the client if thesolicitor represents a party in conflict with the client, is not capable of proof or disproof.

Therefore: (para. 47) . . . the test must be such that the public, represented by the reasonably-informed person, would be satisfied that no use of confidentialinformation would occur. [19] Sopinka J. identified two questions which typically arise when determining whether there is a disqualifying conflict ofinterest: (para. 48)

(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 client? [20] The first question must be answered without revelation of the confidential information for which protection is sought.Sopinka J. proposed a resolution of this dilemma: (para. 49) In my opinion, once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer fromwhich it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfiesthe court that no information was imparted which could be relevant.

This will be a difficult burden to discharge. [21] As to the second question, Sopinka J. observed: (para. 50) A lawyer who has relevant confidential information cannot act against his client or former client. In such a case the disqualification isautomatic. No assurances or undertakings not to use the information will avail.

The lawyer cannot compartmentalize his or her mind soas to screen out what has been gleaned from the client and what was acquired elsewhere. [22] As to whether another member of the firm can act against a former client of the firm, Sopinka J. said that the court shouldinfer that lawyers who work together share confidences unless satisfied by clear and convincing evidence that all reasonable measureshave been taken to ensure that no disclosure by the “tainted” lawyer will occur. He noted: (para. 52) A fortiori undertakings and conclusory statements in affidavits, without more, are not acceptable.

These can be expected in every case ofthis kind that comes before the court. It is no more than the lawyer saying, “Trust me.” This puts the court in the invidious position ofdeciding which lawyers are to be trusted and which are not. Furthermore, even if the courts found this acceptable, the public is not likelyto be satisfied without some additional guarantees that confidential information will under no circumstances be used. [23] The first question noted by Sopinka J. really breaks down into three questions:

a) Was there a solicitor-client relationship between the applicant and the lawyer sought to be excluded from the proceedings?

b) Did the lawyer receive confidential information in the context of that relationship?

c) Is that confidential information relevant to the matter at hand? Was there a solicitor-client relationship? [ 24 ] Clearly there was a solicitor-client relationship between Mr. Warren and Mr. Volker at the time Mr. Warren prepared Mr. Volker ’ s Will and at the time he acted for Mr. Volker in the land transaction. Clearly, as well, in Mr. Volker ’ s understanding there was a solicitor-client relationship between Mr. Warren and himself when Mr. Warren attended upon him in the Remand Centre after the death of Ms. Volker. I accept that Mr. Warren did not believe he was seeing Mr.

Volker in the capacity of his lawyer on that occasion. However the evidence does not indicate that there was any way for Mr. Volker to know that. The lawyer who had dealt with his personal legal and financial affairs in the past came to see him in jail to talk about his personal legal and financial affairs. Absent an express statement that Mr. Warren was there in some capacity other than as Mr. Volker ’ s lawyer, it is difficult to conceive how Mr. Volker could have had any understanding other than that Mr. Warren was there as his lawyer. [ 25 ] To be sure, another lawyer, the lawyer representing Mr.

Volker in the criminal proceedings, was present. However, it is not reasonable to infer that Mr. Volker must therefore have recognized that the lawyer who had in the past acted for him in relation to matters such as his Will and land conveyancing was there to further someone else ’ s interest. Clearly the criminal lawyer did not appreciate that to be the case. [ 26 ] In my view despite Mr. Warren ’ s apparently uncommunicated contrary intention, the solicitor-client relationship which existed previously between Mr. Warren and Mr. Volker continued to exist at the time of Mr. Warren ’ s attendance upon Mr.

Volker in the Remand Centre. Did Mr. Warren receive confidential information in the context of that relationship? [ 27 ] On the authority of MacDonald Estate v. Martin I should infer that confidential information was imparted unless the evidence satisfies me that no information was imparted which could be relevant. In my view the evidence yields the opposite conclusion. [ 28 ] Mr. Volker ’ s evidence is that during the course of Mr. Warren ’ s visit with him in the Remand Centre, they discussed Mr.

Volker ’ s assets and how the attorney proposed to be appointed would carry out his duties in dealing with those assets. Mr. Warren does not dispute that description of the meeting in his affidavit. Nothing in Ms. MacNaughton ’ s affidavit suggests that the discussion at the meeting was other than as described by Mr. Volker. [ 29 ] There is no suggestion in any of the materials that the information concerning Mr. Volker ’ s assets which was discussed is not properly characterized as confidential. [ 30 ] I conclude that Mr.

Warren did receive confidential information in the context of the solicitor-client relationship. Is the confidential information relevant to the matter at hand? [ 31 ] The Fatal Accidents Act damages claimed against Mr. Volker by his children include, amongst other things, damages for the loss of the support of their mother. The measure of damage for that loss is likely to take into account the support, or lack thereof, which the children have from their father. The extent of Mr. Volker ’ s assets will be relevant to that aspect of the assessment of the damages.

[ 32 ] In my view the confidential information Mr. Warren received as a result of the solicitor-client relationship between himself and Mr. Volker is therefore relevant in this action. Is there a risk that it will be used to the prejudice of the client? [ 33 ] Again, on the authority of Macdonald Estate v. Martin I infer that Mr. Warren and Mr. Yake who practise law together share confidential client information. There is no suggestion in any of the filed affidavit materials to the contrary. [ 34 ] Neither Mr. Warren nor Mr. MacDonald appear to accept that information as to Mr.

Volker ’ s assets could be relevant to the issues in this action. In my view they are incorrect in that position. [ 35 ] Mr. MacDonald ’ s assurance that Mr. Warren will not be called as a witness provides no assurance that the risk of misuse of the confidential information will not become manifest. [ 36 ] In the result, I am satisfied that applying the tests established by the Supreme Court of Canada in MacDonald Estate v. Martin there must be an order disqualifying Mr. Yake and his firm from continuing to represent the Plaintiff in this action. I so order. [ 37 ] Mr.

Volker is entitled to costs of this application. Heard on the 22 nd day of September 2011. Dated at the City of Edmonton, Alberta this 10 th day of November 2011. Brian R. Burrows J.C.Q.B.A. Appearances: Gordon G. Yake for the Plaintiff Bruce Bothwell for the Defendant