J. Q.B.G. A.D. 1998 No. 78 J.C.B. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: MYRON WETZSTEIN, SHERRY WETZSTEIN, WAYNE HUDSON, MARY ELLEN HUDSON and GLADYS DOW Plaintiffs/Respondents and LOIS RETA HUDSON Defendant/Applicant Randy T. Klein for Applicant (Lois Hudson) Harvey Neufeld for Respondents/Plaintiffs FIAT KRUEGER J. FEBRUARY 02, 1999 [1] The applicant, Lois Hudson seeks an order declaring that the solicitors for the plaintiffs, Politeski Strilchuk & Milen have breached confidentiality and are in conflict of interest between clients. She asks that they be removed as solicitors of record in this action. [2] In 1995 Neil Hudson, spouse of the applicant, Lois Hudson, with assistance from some of his children, who are now plaintiffs, retained Celine-Rose J. Polischuk of the law firm, Politeski Strilchuk Milen for the purpose of having his wife, Lois Hudson admitted for treatment pursuant to The Mental Health Services Act. At that time Neil Hudson collected some personal letters, records and computer printouts (documents) prepared by Lois Hudson and delivered them to Ms. Polischuk. They were forwarded by her to Peter T. Johnson, Q.C., then solicitor for Lois Hudson. [3] In 1998, the plaintiffs, some of whom are children or spouses of children of Lois Hudson commenced defamation action against her. The documents are material in the present litigation. The same information as contained in the documents, although perhaps in some other form, was available to the plaintiffs from other sources. 1. What was the relationship between Lois Hudson and the law firm of Politeski Strilchuk Milen when the documents were delivered to them? 2. If solicitor-client relationship did not exist what duty, if any, was owed to Lois Hudson? [4] There can be no doubt that if solicitor-client relationship existed between Lois Hudson and Celine-Rose J. Polischuk when she received the confidential documents from Neil Hudson she owed duty to Lois Hudson. Unless otherwise satisfied the court would, in those circumstances, infer that all lawyers working with Ms. Polischuk shared her confidences. Her affidavit to the effect that she did not discuss with or reveal to other members of the firm the contents of the documents is not sufficient to satisfy the public requirement that there be no appearance of breach of confidentiality. See McDonald Estate v. Martin (1990), 1990 CanLII 32 (SCC), S.C.R. 1235 (S.C.C.). [5] No explanation was provided as to why Neil Hudson delivered the documents to Celine-Rose J. Polischuk or in what capacity she took delivery of them. The position of Lois Hudson is that fiduciary relationship was created between her and Ms. Polischuk when the documents were accepted. That relationship was close enough to solicitor-client retainer to give rise to need for confidentiality. Because the documents contained confidential information, it was submitted that the public’s confidence in the administration of justice would be undermined if any member of the law firm were now allowed to act for the plaintiffs. [6] Counsel for the plaintiffs took the position that no solicitor-client relationship existed and, therefore, Chapters IV and of the Code of Professional Conduct have no application. No breach of solicitor client confidentiality took place and no conflict of interest as between clients exists. [7] The Politeski Strilchuk Milen law firm acted for Neil Hudson in 1995. His interests were then adverse to those of Lois Hudson who had her own lawyer. Whatever documents Neil Hudson delivered to his lawyer in 1995 were not needed to support his legal proceedings. They were sent to Lois Hudson’s lawyer. Neil Hudson now supports his wife in the defence of the present action brought by the plaintiffs. He is not, however, party to that action. I do not accept the assertion by Neil Hudson that the documents were delivered to Ms. Polischuk for safekeeping. No instructions were given to that effect and at the time there was no need to keep the information confidential. [8] The freedom of litigants to counsel of their own choosing must be weighed against the high standards required of the legal profession. In the circumstances of this case, am satisfied that no duty was owed to Lois Hudson by Ms. Polischuk when she accepted delivery of documents from her client, Neil Hudson. I am unable to conclude that in delivering the documents, Neil Hudson was acting as an agent for or on behalf of his wife, Lois Hudson. At that time no duty was owed by the solicitors to anyone other than Neil Hudson. He did not give any instructions and as the documents were not required in the proceedings then underway, they were forwarded to the lawyer for Lois Hudson. [9] In my view no solicitor-client relationship was created between Ms. Polischuk and Lois Hudson when, what proved to be confidential documents, were received by her from Neil Hudson. Ms. Polishuk was not required to take any action or to refrain from doing anything. It cannot, therefore, be said that any breach of confidentiality occurred or conflict of interest arose as contemplated by Chapters IV and V of the Code of Professional Conduct. [10] Nor am I able to conclude that any fiduciary duty was owed to Lois Hudson resulting from the acceptance by Ms. Polischuk of documents from Neil Hudson. Whatever duty was owed by her was to Neil Hudson. The fact that Neil Hudson now supports his wife in her defence of the action brought by the plaintiffs does not, in my opinion, change the situation that existed in 1995. To extend the confidentiality of solicitor-client relationships to the circumstances of this case would, in my view, lead to unreasonable results. [11] Since no solicitor-client relationship and no other duty was owed by Ms. Polischuk to Lois Hudson, none existed relating to the law firm which she is a member of. [12] The application is dismissed with costs to the plaintiffs.
FIAT. The applicant sought a declaration that the plaintiffs' solicitors had breached confidentiality and were in a conflict of interest and asked that they be removed as solicitors of record in this action. The applicant's husband had given her personal letters, records and documents to his solicitor in 1995. These documents were relevant to a defamation action brought by her children or their spouses. The applicant argued that a fiduciary relationship was created when the documents were accepted which was close enough to a solicitor-client retainer to give rise to a need for confidentiality and that the public's confidence in the administration of justice would be undermined if any member of that law firm acted for the plaintiffs. HELD: The application was dismissed with costs to the plaintiffs. No solicitor-client relationship was created between the husband's lawyer and the applicant when the documents were received. There was no breach of confidentiality or conflict of interest as contemplated by Chapters IV and V of the Code of Professional Conduct. No fiduciary duty was owed to the applicant when the solicitor accepted the documents from the applicant's husband. The husband was not acting as agent for his wife nor was it accepted that he delivered the documents for safe keeping. The husband's solicitor had forwarded the documents to the applicant's lawyer. The fact that the husband now supported his wife in the defence of her action did not change the situation that existed in 1995.