John LaBuick - v. -, 2013 SKPC 126

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2013 SKPC 126 Date: July 24, 2013 File: 76-12 Location: Moose Jaw _____________________________________________________________________________ Between: John LaBuick - and - Nancy and Tom Sykes Self-Represented For the Plaintiff Jordan Hogeweide For the Defendants _____________________________________________________________________________ JUDGMENT M.

GORDON , J _____________________________________________________________________________ INTRODUCTION [ 1 ] This is an application by John LaBuick to have the Chow McLeod Law Office in Moose Jaw be removed as counsel for the defendants Nancy Sykes and Tom Sykes. The Small Claims action was commenced by Mr. LaBuick in August of 2012. Mr. LaBuick bases his application on a previous consultation he had with Mr. Kerry Chow of the Chow McLeod Law Office in 1999 with respect to

the same matter. Mr. Hogeweide on behalf of the Sykes and the Chow firm opposes this request on the basis that Kerry Chow has no recollection of being retained by Mr. LaBuick. There are no records at the Chow Law Office indicating there was a file ever opened with respect to this matter. Further, the defendants say even if there was a consultation, Mr. LaBuick has not pointed to any confidential information that would be used against him in this litigation. THE EVIDENCE [ 2 ] Mr. LaBuick testified that he has owned the property at 1635 Rutherford Street in Moose Jaw for over 35 years.

In 1999, he described a meeting with lawyer Kerry Chow to discuss the problem with his neighbours to the west. Mr. LaBuick said he sought legal advice from Mr. Chow as to what he could do to protect his property from grass, pine cones, tree fluff and other debris from the Sykes’ yard. Mr. LaBuick testified that within one week Kerry Chow faxed to him copies of the relevant Moose Jaw bylaws with respect to the building of fences and other bylaws with respect to the cutting and removal of trees, etc. As a result of Mr.

Chow’s legal advice, he hired and paid a surveyor to determine the property line and where a fence should be built between the adjoining properties so it was entirely on his property. Mr. LaBuick admitted in cross-examination that he had not returned to the Chow Law Office but wrote letters directly to his next door neighbours in an effort to resolve the situation. In the letter marked as Exhibit D-1 he acknowledges there is no mention that he had consulted the Chow Law Office. Mr. LaBuick admitted that when he was sent a letter from Nancy and Tom Sykes’ counsel, Mr.

Brock Craik, that he responded directly to their lawyer. Mr. LaBuick was adamant that he discussed the problem with fluff and other debris coming into his yard with Mr. Chow which is the subject matter of the present claim. [ 3 ] Carol LaBuick testified that she was not with her husband when he attended at the Chow office in April of 1999. However, she did receive the bill and faxes from the Chow office. She indicated that she paid Kerry Chow’s bill.

She recalled that the fax had details regarding the specifications with respect to building a fence and also information with respect to pruning of trees and how any branches taken off the neighbour’s trees had to be returned to the neighbours. She recalls her husband doing this. She explained that within the past year she had shredded some old information which likely included the 1999 bill from the Chow office. [ 4 ] Kerry Chow testified he has practiced law in Moose Jaw for 41 years. His office is currently known as the Chow McLeod Law Firm. He testified he knows the LaBuicks in a social context as well as Mr.

LaBuick being a long time businessman in Moose Jaw. He has not represented the LaBuicks but has been on the opposite side on several matters with respect to business transactions. He testified that as recently as one year ago, he acted for the party opposite Mr. LaBuick and there was no suggestion from Mr. LaBuick that he should be removed as counsel. He does not know the defendants Nancy and Tom Sykes and has not been personally consulted by them. He testified that he has no current memory of meeting with Mr. LaBuick in April of 1999.

He has no memory of discussing any problems that the LaBuicks may have had with the neighbours or their trees or recommending that Mr. LaBuick obtain a survey of the property. Mr. Chow went on to testify that he and his staff searched their law office records in an effort to locate documentation of any sort that would indicate there was a solicitor/client relationship with himself or any member of the firm and that no such documentation was found. Mr. Chow testified their office uses software which searches computer data bases to detect potential conflict of interest.

There was no conflict detected with respect to John or Carol LaBuick. Mr. Chow said he has had no involvement with the file and no knowledge of this current dispute until this application to disqualify his firm. Upon being questioned by myself, Mr. Chow readily admitted that in 1999 he could have seen Mr. LaBuick and provided him with some general advice and not opened a file or made a note of it for conflict purposes. Of course he said that is not the current practice as there are more restraints in place to ensure there is no conflict.

ANALYSIS 1) Was there a solicitor/client relationship between Kerry Chow and John LaBuick with respect to this current transaction? [ 5 ] The parties are well aware of my colleague’s decision within the past year involving this very issue. In fact it was the same two law firms in Moose Jaw involved, only the positions reversed. I refer to the decision of Centennial Tire Ltd. and Derrick Anderson & Royal Lepage Landmart at 2012 SKPC 130 . My colleague Judge Kovatch sets out in my view the law in this area.

I quote from paragraph 40 of the Centennial Tire decision as follows: It is significant to note that in the Wallace [1] case, the Court of Appeal carefully reviewed the case law, and paid particular attention to MacDonald Estate v. Martin , R. v. Neil , and Strothers v. 3464920 Canada Inc . [2] In MacDonald Estate , at para. 46 , the Court stated: [3]

In my opinion, 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. [ 6 ] Saskatchewan’s new Code of Professional Conduct defines “client” as follows: Client means a person who: (

a) consults a lawyer and on whose behalf the lawyer renders or agrees to render legal services; or (

b) having consulted the lawyer reasonably concludes that the lawyer has agreed to render legal services on his or her behalf. A lawyer/client relationship may be established without formality. [ 7 ] I am satisfied a solicitor/client relationship was entered into between Mr. LaBuick and Mr. Chow in April of 1999. Mr. LaBuick consulted with Mr. Chow and received some information and paid the account for legal services rendered. It is quite understandable that Mr. Chow is unable to recall any details from this meeting. For a solicitor who has practiced for as many years as Mr.

Chow, and seen the number of clients that he sees in a busy practice, I accept and believe him that he is unable to recall any details of this meeting at all. I also accept that he and his staff conducted the appropriate checks that they have in place for any potential conflicts and found none. However, on questioning by myself, Mr. Chow readily admitted that in 1999 it is quite possible that a file may never have been created such that would get into their system and that procedures have certainly tightened up in the past few years. While it is acknowledged that Mr.

LaBuick never followed up with the Chow Law Office or Mr. Kerry Chow in particular, that does not negate this one meeting where legal advice and information was sought and obtained about the very problem and basis for Mr. LaBuick’s current Small Claims action. [ 8 ] The second issue I need to discuss is whether Mr. Chow acquired confidential information from Mr. LaBuick.

The Supreme Court of Canada in the MacDonald Estate case at paragraph 44 poses the question: “Is there a disqualifying conflict of interest?” At paragraphs 45 to 47 the Court stated as follows: 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 client? In answering the first question, the court is confronted with a dilemma. In order to explore the matter in depth may require the very confidential information for which protection is sought to be revealed. This would have the effect of defeating the whole purpose of the application. American courts have solved this dilemma by means of the "substantial relationship" test. Once a "substantial relationship" is shown, there is an irrebuttable presumption that confidential information was imparted to the lawyer.

In my opinion, this test is too rigid. There may be cases in which it is established beyond any reasonable doubt that no confidential information relevant to the current matter was disclosed. One example is where the applicant client admits on cross-examination that this is the case. This would not avail in the face of an irrebuttable presumption.

In my opinion, 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. This will be a difficult burden to discharge.

Not only must the court's degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed, but the burden must be discharged without revealing the specifics of the privileged communication. Nonetheless, I am of the opinion that the door should not be shut completely on a solicitor who wishes to discharge this heavy burden. The second question is whether the confidential information will be misused. A lawyer who has relevant confidential information cannot act against his client or former client.

In such a case the disqualification is automatic. No assurances or undertakings not to use the information will avail. [ 9 ] I have determined there was a solicitor/client relationship albeit for only the one meeting between Mr. Chow and Mr. LaBuick. The consultation was directly related as I have said to the same subject matter that is the basis for this present Small Claims action. As a result I am required to infer that confidential information was imparted to Mr. Chow unless I can be satisfied that no such information was imparted. It is a high burden. The test is not whether Mr.

Chow recalls any of the consultation or exchange. I must be satisfied to the point that no reasonably informed member of the public would believe that confidential information was imparted. Mr. LaBuick testified that as a result of Mr. Chow’s advice, he had a property survey done in May of 1999. As well, he constructed a fence on his property in accordance with advice he received from Mr. Chow which for the main

part included the relevant bylaws from the City of Moose Jaw which stipulates the requirements of any fence such as height. Mr. LaBuick readily admits he did not call Mr. Chow

after this initial encounter. It is tempting to say that as a result of the passage of time, being some 14 years, that there is no harm inhaving another lawyer from the Chow firm represent the party opposite.

Section 2.04(1) of the Saskatchewan Law Society Code ofConduct states that a lawyer must not act or continue to act where there is a conflict of interest. This seems self-evident. Thecommentary under this

section is interesting and reads as follows: A lawyer should examine whether a conflict of interest exists not only from the outset but throughout the duration of a retainer becausenew circumstances or information may establish or reveal a conflict of interest. [10] If the Chow firm was allowed to represent the Sykes at trial, it may be very tempting for counsel to try to make something ofthe fact that Mr. LaBuick took matters into his own hands after consulting Mr. Chow and did not follow the recommendations from Mr.Chow or perhaps did. I am not quite sure what he could make of it, but there is a danger that Mr.

LaBuick’s credibility could beattacked. Then the conflict of interest is present. In the Wallace decision, at paragraph 55, the Court of Appeal states as follows: A legacy of Neil is that, in conflict analysis, primacy was given to the integrity of both the legal profession and the administration ofjustice over the other two competing values enunciated in MacDonald Estate, i.e. the client’s choice of lawyer and lawyer mobility. [11] In disqualifying the Chow McLeod Law Firm, I certainly appreciate that this is a very cautious approach.

In my view thisprotects the integrity of the legal profession and the administration of justice. I appreciate that in smaller centres it is often very difficultnot to have some type of conflict of interest where one party or a member of one party’s immediate family may have contacted aparticular law firm on an unrelated matter years ago. Does that mean that firm can never represent somebody against that client?

I thinkthe case law would say it depends on the situation but certainly whereas here, the consultation was about the very same subject matter, Ihave no hesitation in saying that any Court would conclude that a conflict does exist and therefore it would be inappropriate once theissue is raised to have the Chow firm continuing to act for the Sykes. As Judge Kovatch said in the Centennial Tire case, the decision is“entirely aimed at ensuring a fair trial in this matter”.

CONCLUSION [12] I therefore disqualify any members of the Chow McLeod Law Firm from acting as counsel for the defendant in any furtherproceedings on this matter. I reserve the question of costs until the conclusion of this matter. The case management conference will becontinued on October 1, 2013 at 4:00 p.m. in front of Judge Kovatch. [13] Dated at Moose Jaw, Saskatchewan this 24th day of July, 2013. M. Gordon, J [1] 2011 SKCA 108 [2] MacDonald Estate v. Martin, (SCC), [1990] 3 S.C.R. 1235; R. v. Neil, 2002 SCC 70 , [2002] S.C.J. No. 72;and Strothers v. 3464920 Canada Inc., 2007 SCC 24 , [2007] S.C.J.

No. 24. [3] MacDonald Estate v. Martin, supra, para. 46.