LC v Alberta, 2016 ABQB 554

Court of Queen ’ s Bench of Alberta Citation: LC v Alberta, 2016 ABQB 554 Date: 20161004 Docket: 0703 10836 Registry: Edmonton Between: LC, EMP by her Litigation Representative Phillip Tinkler, DC by his next friend LC and CC by her next friend LC Plaintiffs - and - Her Majesty the Queen In Right of Alberta and Metis Settlements Child & Family Services, Region 10 Defendants Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2. No one may publish the name or photograph of a child, or of the child's parent or guardian, in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A.

Graesser _______________________________________________________ Introduction [ 1 ] In LC v Alberta , 2016 ABQB 491 , I dealt with the Defendants’ application to compel production of the retainer agreements between EMP and her counsel. At a case management conference on September 23, 2016, counsel for the Defendants noted that I had

not dealt with their concurrent application to require LC to produce her retainer agreements with counsel. This decision deals with that application. Background [ 2 ] This application arises out of the application by EMP for advance costs so that she can be the child class representative in the class proceeding certified by me in this action. My certification decision is now under appeal. [ 3 ] LC is EMP’s mother. Initially, she pursued this action on her own behalf and as next friend for EMP.

She was replaced by Philip Tinkler as EMP’s litigation representative, but continues in this action in her own right and as parent and guardian class representative in the class proceeding. [ 4 ] There is no live application by LC for advance costs. [ 5 ] HMQ argues that LC’s retainer agreements with counsel are relevant and producible in the context of EMP’s advance costs application. LC resists production of her retainer agreements. Arguments [ 6 ] HMQ advances similar arguments relating to LC’s retainer agreements as they did regarding EMP’s retainer agreements: 1.

There is no privilege attaching to retainer agreements in class proceedings; 2. Alternatively, privilege has been waived; 3. The retainer agreements are relevant to the advance costs application; 4.

LC’s retainer agreements are relevant because LC is not advancing a claim for advance costs herself, which suggests that she can proceed herself and in her capacity as representative plaintiff for the adult and guardian class: because the adult and guardian class is able to proceed without advance costs, perhaps EMP and the child class can have LC’s solicitor (who is currently the same solicitor as is representing EMP) proceed with their action too. [ 7 ] HMW further argues: 5. “If LC’s contingency fee agreement has a class counsel escape clause triggered if EMP doesn’t get an advanced costs order, important public policy issues respecting appointment of class counsel, allowable terms of fee arrangements, free-rider problems, how agreements are approved, and whether contingency fee agreements are compatible with advanced costs.” 6.

Previous retainer agreements between LC in her capacity as next friend or litigation representative for EMP should be produced as they may show that EMP’s counsel can or must continue for her even if Mr. Lee does not continue to act on behalf of the entire child class. 1. No privilege in retainer agreements in class actions [ 8 ] I dealt with this in the context of EMP’s retainer agreements. I concluded that privilege exists, but in a class proceeding the privilege is more easily lost or waived. The same considerations apply to LC’s retainer agreements. 2.

Waiver of privilege [ 9 ] I concluded that EMP had waived privilege over at least some portions of the retainer agreement. I did not need to deal with the issue as to whether or not privilege over the entire agreement was waived by EMP applying for advance costs. [ 10 ] In the case of LC, she has done nothing to waive privilege. She has not applied for advance costs. The fact that her daughter has applied for advance costs has no impact on LC’s solicitor and client privilege. Such privilege must be waived by the client, not by a third party.

That was confirmed in Canada (National Revenue) v Thompson , 2016 SCC 21 . There has been no waiver of privilege by LC. 3. Relevance [ 11 ] The fact that the retainer agreements may be relevant is not a basis to override solicitor and client privilege. The Supreme Court continues to reaffirm the importance of protecting solicitor and client privilege and limiting circumstances where it may be lost: Canada (National Revenue) v Thompson (supra) and Canada (Attorney General) v. Chambre des notaires du Québec , 2016 SCC 20 . [ 12 ] The fact of relevance does not cause any loss of privilege. 4.

EMP and the child class might be able to be represented by LC’s counsel [ 13 ] This suggestion is purely speculative. EMP argues that if she does not receive advance costs, her solicitor will not continue to

act for her and the child class. The fact that the same lawyer may nonetheless continue to represent LC and the parent and guardian class imposes no obligation on the lawyer, or the parent and guardian class, to have the lawyer advance claims for persons other than LC and the parent and guardian class. [ 14 ] This is tantamount to suggesting that LC’s lawyer should represent EMP and the child class for free, or should enter into a new retainer agreement with EMP and the child class if advance costs are not awarded.

That may be a possibility, but I do not see that this possibility, raised by HMQ, can have the consequence of blowing through LC’s privilege over her arrangements with counsel. 5. Public policy [ 15 ] I recognize that there may be public policy arguments surrounding retainer agreements in class proceedings.

Generally, public policy issues surrounding lawyers’ retainers are protected by lawyers’ governing bodies, such as the Alberta Law Society, and by the Alberta Rules of Court. [ 16 ] It is not really a defendant’s concern as to how the plaintiff’s counsel will be paid for by the plaintiff, and it would be unusual, to say the least, to give the defendant some say or status in determining how the plaintiff might be represented. [ 17 ] In any event, this is an argument that might be raised in relation to EMP’s retainer agreement as she is seeking advance costs from the defendant.

But I see no overriding public policy interest that would justify interfering with LC’s privilege over her retainer agreements. 6. Previous retainer agreements [ 18 ] It is true that LC initially retained counsel for herself and for EMP. Initially, this action was not intended to be a class proceeding. I did not allow HMQ to participate in the approval process for retainer agreements for or relating to EMP once I was appointed case manager of this matter. I approved the present retainer agreement between Mr. Tinkler, as EMP’s litigation representative, and Mr. Lee.

That agreement replaces the earlier agreement or agreements between Mr. Lee and EMP. [ 19 ] As such, old, replaced retainer agreements are not relevant as they do not represent the current reality between EMP and counsel. [ 20 ] Regardless of what retainer agreements (past or present) say, HMQ can argue that any advance costs should relate to EMP’s claim alone and not costs relating to the child class. What an old retainer agreement might say is at best marginally relevant to this speculative argument, and documents of marginal relevance are not producible: the test is materiality. That is not met here.

Conclusion [ 21 ] For the reasons discussed above, LC is not required to produce any retainer agreements relating to her claims, or entered into in her previous capacity as EMP’s next friend or litigation representative. Heard on the 23 rd day of September, 2016. Dated at Edmonton, Alberta, this 3 rd day of October, 2016. Robert A. Graesser J.C.Q.B.A. Appearances:

R.P. Lee Robert P. Lee Professional Corporation for the Plaintiffs EMP and LC P. Barber and G.K Epp, Alberta Justice; W.K. Branch Q.C., Branch McMaster for the Defendants