nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 434 Date: 2013 12 11 Docket: Q.B.G. 1001 of 2013 Judicial Centre: Regina BETWEEN: HELEN THERESA PEARCE-ELL and KEITH HOLGATE and LAURA HOLGATE Counsel: Merrilee Rasmussen, Q.C. for the plaintiffs Reginald E. Sauer for the defendants JUDGMENT SCHWANN J. December 11, 2013 [1] The sole issue presented by this application is whether Mervin C. Phillips and the lawyers with Phillips Co. should be disqualified from continuing to act for the plaintiff, Helen Theresa Pearce-Ell, because of conflict of interest. [2] In early 2011 Helen Pearce-Ell and Keith and Laura Holgate began discussions about the possible purchase and sale of Pearce-Ell’s personal care home located at 133 Dalgleish Drive, Regina, Saskatchewan. [3] Negotiations proceeded to the point where the parties began the necessary approval process for Laura Holgate to operate the personal care home. According to Laura Holgate, Pearce-Ell suggested they have the sale agreements drawn up by her lawyer and that both sides use the same lawyer to save costs. To that end, Pearce-Ell scheduled meeting with Mr. Phillips of the Phillips Co. law firm, with whom she had had long-standing solicitor-client relationship. Pearce-Ell invited the Holgates to the meeting. [4] On July 26, 2011, Pearce-Ell, along with Keith and Laura Holgate, met with Mr. Phillips and Leane Phillips at the offices of Phillips Co. Laura Holgate’s recollection of that meeting is set out in para. of her affidavit: 7. The meeting at Mr. Phillips’ office lasted approximately one hour. During this meeting Keith and along with Helen and Robert explained to Mr. Phillips the terms that we wanted to have included in the Agreement for Purchase and Sale. Mr. Phillips informed us collectively that he would draft the Agreements and contact us when they were ready to be signed. At no time during this meeting did Mr. Phillips or anyone else at the meeting explain to Keith or that we needed to obtain our own lawyer to review or sign the Agreements. Keith and were left with the understanding that Mr. Phillips was preparing the Agreements on our behalf as well as on behalf of Helen. [5] Mr. Phillips has different recollection of the events on July 26th. At paras. and of his affidavit, he deposes: 8. After being briefly introduced and while in the waiting room of my law firm and in the presence of Mrs. Pearce-Ell and Leane Phillips, expressly advised Mr. and Mrs. Holgate that my law firm acts for Mrs. Pearce-Ell and as result that my law firm could not act for them and therefore they would have to retain different lawyer. 9. Subsequently, accompanied Mrs. Pearce-Ell, Leane Phillips and Mr. and Mrs. Holgate to the office of Leane Phillips, and thereafter summarized that Leane Phillips should prepare the contracts requested by my client, Mrs. Pearce-Ell. Thereafter, again expressly advised Mr. and Mrs. Holgate that my law firm acts for Mrs. Pearce-Ell and as result that my law firm could not at for them and therefore they would have to retain different lawyer. [6] Ms. Phillips has similar recollection of events. She says at paras. and of her affidavit: 6. Mervin Phillips accompanied Mrs. Pearce-Ell and myself to my office. However, on the way to my office, the presence of Mr. and Mrs. Holgate in my law firm’s waiting room was noted by Mrs. Pearce-Ell. We were briefly introduced to Mr. and Mrs. Holgate. Thereafter, Mervin Phillips expressly advised Mr. and Mrs. Holgate that my law firm acts for Mrs. Pearce-Ell and as result that my law firm could not act for them and therefore they would have to retain different lawyer. 7. Thereafter, Mervin Phillips, Mrs. Pearce-Ell, Mr. and Mrs. Holgate, and all went to my office. Thereafter, Mervin Phillips summarized that should prepare the contracts requested by my client, Mrs. Pearce-Ell. Mervin Phillips again expressly advised Mr. and Mrs. Holgate that my law firm acts for Mrs. Pearce-Ell and as result that my law firm could not act for them and therefore they would have to retain different lawyer. [7] Laura Holgate takes exception to Mr. Phillips’ affidavit. She claims he never expressed an inability to act for her and her husband or that separate legal representation was required. [8] It is Mr. Phillips’ position the Holgates disclosed no confidential information to any lawyer within his law firm apart from the nominal information described in para. 12 of Ms. Phillips’ affidavit, that is: 12. For the remainder of the meeting, obtained from Mrs. Pearce-Ell and the Offer to Purchase form the information necessary to complete the draft Offer to Purchase document attached as Schedule “B” to the Affidavit of Laura Holgate sworn August 9, 2013. The information that was inserted mostly consisted of the information Mrs. Pearce-Ell placed in the blank Offer to Purchase form herself, however checked the legal description of title with ISC, inserted the email addresses for both the vendor and purchaser, inserted the purchase price and deposit price, left the amount for mortgage approval blank (as did not know the information as to what mortgage approval Mr. and Mrs. Holgate required), and inserted dates by which the possession, removal of conditions and acceptance of offer was to occur. [9] Ms. Phillips, however, also describes discussion she had with Keith and Laura Holgate about their desire to leave their farm and move into Regina, the difficulty they encountered selling their farm property and the fact it had been listed for period of time (para. 10). She then says at para. 11 of her affidavit: 11. indicated that if their property was not sold by the time of the possession date for the prospective purchase of Mrs. Pearce-Ell’s property, which date was informed had been chosen so as to permit Mr. and Mrs. Holgate’s children to start the new school year in September, that Tenancy at Will document would be required. [10] Ms. Phillips prepared the tenancy agreement referenced in para. [11] The next interaction between the Holgates and members of Phillips Co. occurred on August 22, 2011 when Laura Holgate received an email from Ms. Phillips. Draft offer to purchase and tenancy agreements were attached along with this e-mail note: ...please review and advise if ok to send to your lawyer Jeff Reimer or if you have any questions/revisions. [Emphasis added] [12] According to Laura Holgate, it was at this point she first realized the Phillips Co. law firm was not acting for her. At para. of her affidavit she says: 8. Sometime after the meeting at Mr. Phillips’ office was contacted by Leane Phillips to inform me that the draft Agreements were ready for signing. It was at this point that Leane Phillips informed me that Keith and needed an independent lawyer to witness the Agreements. was confused because thought we would all sign the Agreements at Mr. Phillips’ office since he drafted them for us. told Leane Phillips that Keith and would probably use Jeff Reimer because he was the lawyer we used on our last real estate transaction. Mr. Reimer was not consulted by Keith or regarding this Agreement prior to my discussion with Leane Phillips. [13] Laura Holgate immediately contacted Jeff Reimer for legal advice in connection with the agreements. Laura Holgate instructed Mr. Reimer to ensure purchase of the personal care home was conditional upon the sale of their farm. Mr. Reimer suggested couple of additions to the agreement to address these concerns and these revisions were entered by hand to the draft documents. [14] Both Keith and Laura Holgate signed the amended agreements on September 7, 2011, backdating them to September 1st to coincide with the change in possession. The parties disagree about whether the signed agreements were returned to Mr. Phillips’ law firm. In any event, neither version of the documents was executed by Pearce-Ell. [15] The Holgates took possession of the personal care home around the same time they executed the agreements. Relations between the parties deteriorated thereafter and in May 2012 Mr. Phillips wrote to Keith and Laura Holgate demanding payment in full for the property. His letter was followed by an application for writ of possession and ultimately issuance of statement of claim on behalf of Pearce-Ell. The Holgates are alleged to have occupied the plaintiff’s land (personal care home) without legal justification and that their continued occupation constitutes trespass to land. The Holgate’s defence to this claim is based on their understanding of the agreed terms of sale with particular focus on the parties’ mutual agreement that payment of the purchase price was conditional upon the sale of their farm. [16] While the central issue is whether Mr.Phillips and the lawyers from the Phillips Co. law firm should be disqualified from acting for Pearce-Ell because of conflict of interest, the parties agree the issues on this application reduce down to the following: (a) Did solicitor-client relationship exist between Laura and Keith Holgate and Phillips Co.? (b) If so, should Phillips Co. be disqualified from acting on behalf of Ms. Pearce-Ell by reason of conflict of interest? (c) If solicitor-client relationship existed, did Laura and Keith Holgate waive their ability to raise this issue by reason of delay? (a) Did solicitor-client relationship exist between Laura and Keith Holgate and Phillips Co.? [17] The Supreme Court of Canada’s decision in Descôteaux v. Mierzwinski, 1982 CanLII 22 (SCC), [1982] S.C.R. 860, at p. 876 offers the following broad guidance on when solicitor-client relationship is said to arise: When dealing with the right to confidentiality it is necessary, in my view, to distinguish between the moment when the retainer is established and the moment when the solicitor‑client relationship arises. The latter arises as soon as the potential client has his first dealings with the lawyer's office in order to obtain legal advice. [Emphasis added] [18] In Popowich v. Saskatchewan, 1995 CanLII 5956 (SK QB), [1995] W.W.R. 314, 132 Sask. R. 48 (Sask. Q.B.) Barclay J. expanded upon the test and clarified that it was to be viewed from the vantage point of the client not the lawyer. He said: 34 ... the test to be applied is that solicitor‑client relationship arises once legal consultation occurs and the timing of that depends upon whether the client believes he is dealing with solicitor in professional capacity. 35 It has long been settled that there need not be formal retainer in order for the solicitor‑client relationship to be constituted. [19] Mr. Phillips submits no solicitor-client relationship arose between his law firm and the Holgates. He points to the fact there was no retainer, no file was opened on behalf of the Holgates, no meeting took place apart from the July 26th meeting with Ms. Pearce-Ell, and no bill was rendered or paid by the Holgates. He places reliance upon the Alberta case of Jeffers v. Calico Compression Systems, 2002 ABQB 72 (CanLII), Alta. L.R. (4th) 147 where numerous indicia of solicitor-client relationship were discussed. [20] The Calico decision, in my opinion, does not meaningfully assist Mr. Phillips. It does not stand for the proposition that all or even most of the referenced indicia need be present before solicitor-client relationship arises as matter of law. The listed indicia, rather, are merely touchstones designed to assist in assessing this issue. In fact, the court in Calico took care to clarify this point and to articulate reasonable person test: 8. ... Not all indicia need to be present. As Madam Justice Romaine stated in Guardian Insurance, supra, the question appears to be whether reasonable person in the position of party with knowledge of all the facts would reasonably form the belief that the lawyer was acting for particular party. [21] With that, turn to the indicia which are present. The Holgates met with Ms. Phillips on July 26th for approximately one hour. The Holgates went to the meeting under the impression they and Pearce-Ell were using the same lawyer for the purposes of saving money. Laura Holgate says she imparted information to Ms. Phillips about the transaction. By her own affidavit, Ms. Phillips concedes she discussed complications with their desired possession date in the event their farm property was not sold in timely way. Ms. Phillips herself suggested tenancy type agreement to address this concern. As mentioned, the meeting lasted roughly one hour. meeting of this length seems unnecessarily long if the purpose of the meeting was simply to obtain non-contentious, basic facts or contact information to fill in form-based document. [22] Moreover, the August 22nd email from Ms. Phillips to Laura Holgate, albeit ambiguously worded, is also relevant to this issue. On the one hand, she asked Ms. Holgate to “review and advise” and to get back to her “if you have any questions/revisions”. Yet on the other hand she inquired if she should send the documents to Mr. Reimer. One wonders why she would communicate directly with the Holgates in the first place if she thought they were represented by legal counsel, but more importantly why she would bother to ask for their comments and revisions if she wasn’t acting for them. [23] Based on the whole of the evidence, viewed objectively through the eyes of a reasonable person, I am satisfied the interaction between the Holgates and the lawyers from Phillips & Co. constituted a solicitor-client relationship. might add this conclusion is consistent with the definition of “client” adopted by the Law Society of Saskatchewan which defines “client” to mean person who: ...having consulted the lawyer, reasonably concludes that the lawyer has agreed to render legal services on his or her behalf. [24] The solicitor-client relationship existed until August 22 or 23 when the Holgates referred the sale documents to Mr. Reimer. [25] In reaching this conclusion, am not unmindful of the content of the affidavits sworn by both Mr. Phillips and Ms. Phillips. wish to be clear that in reaching my conclusion about the existence of solicitor-client relationship, am not calling into question the truthfulness of the lawyers’ affidavits. However, the evidence is controverted. In assessing the matter and having regard to the whole of the facts, am satisfied the Holgates were left with the impression and expectation that the Phillips Co. law firm was acting for both sides, and that their impression was reasonably held. (b) If so, should Phillips Co. be disqualified from acting on behalf of Ms. Pearce-Ell by reason of conflict of interest? [26] The relationship between solicitor and client is fiduciary one. Lawyers are subject to strict ethical rules which find expression in codes of professional conduct adopted by the self-governing body in each jurisdiction. The obligation owed to former clients is one dimension of this duty. It has been repeatedly stated that lawyer’s main duty to former client is to refrain from misusing confidential information. [27] The Supreme Court of Canada’s decision in MacDonald Estate v. Martin, 1990 CanLII 32 (SCC), [1990] S.C.R. 1235, 77 D.L.R. (4th) 249 (“Martin”) has long been recognized as the seminal case in Canada with respect to fiduciary duties owed by lawyers, and of particular relevance to this case, the confidentiality obligations owed to past clients. The Supreme Court began its analysis with recognition of the legitimate, yet competing interests at play. The first broad interest is the desire to maintain the high standards of the legal profession and the integrity of the justice system. The second, often countervailing interest, is not to deprive person of his or her choice of counsel. And the third concern is to permit reasonable mobility in the legal profession. (Martin, supra, p. 1243) [28] The Supreme Court had opportunity to revisit Martin in Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39 (CanLII), [2013] S.C.J. No. 39 (QL) (“C.N.R.”). That decision succinctly reaffirmed the duty owed to former clients: “The lawyer’s main duty to former client is to refrain from misusing confidential information.” (para 23). Adopting Martin, the Supreme Court, in C.N.R., re-affirmed the two-part conflict of interest test with regard to former clients: 24 ........ two‑part test is applied to determine whether the new matter will place the lawyer in conflict of interest: (1) Did the lawyer receive confidential information attributable to solicitor and client relationship relevant to the matter at hand? (2) Is there risk that it will be used to the prejudice of that client?: Martin, at p. 1260. ... [29] With those principles in mind, turn to the application of that test in the present circumstances. i) did the lawyer receive confidential information relevant to the matter at hand? [30] To assist in addressing the first part of the test, Sopinka J., in Martin, supra, at p. 1260, made these observations in relation to former clients .. In my opinion, once it is shown by the client that there existed 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. ... Similarly, in C.N.R., supra, at para. ... If the lawyer's new retainer is "sufficiently related" to the matters on which he or she worked for the former client, rebuttable presumption arises that the lawyer possesses confidential information that raises risk of prejudice: [31] Both parties agree that if previous solicitor-client relationship is found to exist, that relationship or retainer is sufficiently related to the action commenced in these proceedings. This concession is self evident given the direct factual connectiveness between the sale and tenancy discussions with the parties and the gravamen of the action brought by Pearce-Ell against the Holgates. Simply put, the Phillips Co. law firm commenced an action on behalf of Pearce-Ell in relation to the very matter they discussed with the Holgates. [32] Having found solicitor-client relationship arose and that the new retainer for Pearce-Ell was sufficiently related to the matters involving the Holgates, both Martin and C.N.R., indicate that, as matter of law, it must be presumed the lawyers at the Phillips Co. law firm possessed confidential information. [33] This legal presumption is not irrebutable. However, as Martin, supra, instructs (at p. 1260) discharging that burden is not simple matter because the evidence must pass the scrutiny of the “reasonable person test” without actually revealing the specifics of the privileged communication: .. This will be 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, am of the opinion that the door should not be shut completely on solicitor who wishes to discharge this heavy burden. [34] Paragraph 12 of Ms. Phillips’ affidavit alludes to the type of information gathered from the Holgates. Mr. Phillips contends the nature of this information was nothing more than mere garden variety conveyancing information. He doesn’t perceive it to be confidential, and in any event, he argues the Holgates have failed to demonstrate how such benign information could be used against them. In other words, he contends that he has adequately discharged the onus borne in these circumstances and it now falls to the Holgates to explain how this information could possibly be characterized as confidential. [35] With regard to the matter of onus, the law is clear. “In making this evaluation, court should not require client to disclose what information or types of information it seeks to protect or to explain how such information may be relevant to proceedings....” (Halsbury’s Laws of Canada, Legal Profession, 1st ed. (Markham,ON:LexisNexis,Canada, 2013) at p. 336) The former client need only satisfy the court of its broad relevance to the proceedings at hand and of the risk posed if it passed into the hands of the other party. In fact, requiring them to do so defeats the very purpose the protection was intended to convey. [36] While it is true we don’t know precisely what the Holgates said at the July 26th meeting, the pleadings clearly reflect sharp disagreement between the parties over the terms of their agreement and in particular whether the Holgates’ legal position was protected pending sale of their farm land. Given the nature of the ensuing lawsuit, its hard to fathom that information imparted to Ms. Phillips was purely procedural and benign in nature and not ultimately relevant to the suit commenced one year later by Mr. Phillips. [37] The next question is whether Ms. Phillips’ affidavit was sufficient to rebut the presumption. think not. In circumstances where lawyer purports to conduct litigation adverse to the former client in relation to matter connected to the first retainer, simple affidavit contesting the client’s assertions will rarely suffice. (Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36 (CanLII), [2006] S.C.R. 189 at para. 42) While para. 12 of Ms. Phillips’ affidavit describes the type of information in benign way, it is far too generalized to rebut the presumption. [38] To summarize, where solicitor-client relationship is found to exist, as have so found in this instance, the lawyer’s duty is to refrain from misusing confidential information received from the former client. Once that former relationship has been established, and once it can be shown that the relationship is sufficiently related to the retainer under challenge, rebuttable presumption arises in favour of the former client that confidential information was imparted. As the Phillips & Co. law firm have failed to rebut that presumption, I must presume the Holgates imparted confidential information to the lawyers in that law firm. ii) is there risk the confidential information will be used to the prejudice of the Holgates? [39] The second part of the Martin, supra, test is whether the confidential information imparted to Phillips Co. will be misused. Martin takes strict approach to the application of this part of the test. At p. 1261: ... lawyer who has relevant confidential information cannot act against his client or former client. In such case the disqualification is automatic. ... [40] Sopinka J. explained the rationale for this approach: ... No assurances or undertakings not to use the information will avail. The lawyer cannot compartmentalize his or her mind so as to screen out what has been gleaned from the client and what was acquired elsewhere. Furthermore, there would be danger that the lawyer would avoid use of information acquired legitimately because it might be perceived to have come from the client. This would prevent the lawyer from adequately representing the new client. Moreover, the former client would feel at disadvantage. Questions put in cross‑examination about personal matters, for example, would create the uneasy feeling that they had their genesis in the previous relationship. [41] This brings me to the ethical codes of the legal profession which are taken as an expression of the collective views of the profession on the standards to which the profession should adhere. It is common knowledge that the underlying purpose of self-governance, as expressed through codes of professional behavior, is the protection of the public and preservation of the repute of the profession. (C.N.R., supra, paras. 13-14) [42] The Law Society of Saskatchewan brought in revised Code of Professional Conduct (the “Code”) effective of July 1, 2012. Rule 2.04(10) addresses the circumstance of lawyer acting against former client: 2.04(10) Unless the former client consents, lawyer must not act against former client in: (a) the same matter, (b) any related matter, or (c) any other matter if the lawyer has relevant confidential information arising from the representation of the former client that may prejudice that client. [43] Rule 2.04(10) is directly on point to the matter before this Court and its application is clear: Mr. Phillips is prohibited from acting against the Holgates. While this Court is not bound by nor required to apply the Code, it nonetheless stands as an expression and clear one at that of the professional and ethical standards expected of lawyers in Saskatchewan in relation to former clients. It must be recalled that the duty to avoid conflicts is simply an adjunct to lawyer’s underlying duty to refrain from using confidential information received from former clients. In practice, Rule 2.04(10) operates to prevent situations from arising which carry heightened risk of breach of confidentiality. (C.N.R., supra, para. 24) [44] To be clear, it is not the job of this Court to pass upon lawyer’s adherence to the Code, nor to punish or discipline lawyers. Nonetheless, where matter of conflict is brought to the Court’s attention, the Court must consider the matter with an eye to and concern for the administration of justice and any appearance of impropriety. [45] Mr. Phillips and the lawyers within his law firm are ethically bound by the Rules of the Law Society of Saskatchewan to refrain from acting against former clients in the same or any related matter. At its core, the action between Pearce-Ell and the Holgates pertains to the terms of the agreement for sale, which is the same matter, or at the very least, a related matter to the original retainer. That alone is sufficient to justify their disqualification. [46] The same result is achieved by applying the Martin principles and presumptions. As Mr. Phillips possessed relevant confidential information from former client which could prejudice them in the within action, disqualification is generally automatic. While one can understand Pearce-Ell’s desire to continue on with Mr. Phillips given her long-standing relationship with him and his familiarity with this file, viewed from the perspective of reasonably informed objective person, an obvious conflict of interest exists which requires court intervention in the interests of the broader administration of justice. (c) If solicitor-client relationship existed, did Laura and Keith Holgate waive their ability to raise this issue by reason of delay? [47] Even if the Martin, supra, test is met, Mr. Phillips contends the Holgates waived their right of objection either though delay in raising the conflict issue in timely way, or by waiver of any confidentiality which would have attached to the discussions at the July 2011 meeting. [48] The first issue is readily disposed of on the facts. The statement of claim was issued on June 3, 2013. The Holgates’ legal counsel first broached the conflict of interest concern with Mr. Phillips in early July 2013. Their application followed on August 13th when negotiated approach failed. Simply put, there was no delay. [49] While it is true the defendants failed to raise conflict of interest concerns prior to issuance of the plaintiff’s statement of claim and that the within action was preceded by writ of possession application and analogous proceedings involving Mr. Phillips, the fact remains the Holgates’ seek an order disqualifying plaintiff counsel in this action. [50] Even if the defendants’ failure to raise the conflict issue in earlier proceedings is relevant to their motion in the present action, delay alone is not determinative. “Delay” is but one factor considered when applying the Martin, supra, test. The two lines of argument are not isolated from each other, as the court must take into consideration all relevant facts and circumstances including any procedural delay. J. T. Miller Construction Ltd. v. South Calgary Properties Ltd., 1995 ABCA 213 (CanLII), [1995] W.W.R. 146, 29 Alta. L.R. (3d) 393 (Alta. C.A.), for instance, demonstrates how delay fits within the Martin matrix. At para. 11 the Court said: 11 The degree of apparent conflict of interest here, and the likely harm, are of course relevant when weighing prejudice under the doctrine of delay (under procedural principles or as equitable laches). If the conflict were large, or serious harm were likely, we would likely disqualify the firm despite the time interval. Or we might disqualify the firm on condition that the party complaining pay costs to remedy its delay. Of course, we do not have that discretion when the case fits squarely within Martin v. Gray, supra, and the complaint of the conflict is made promptly. Then we must disqualify the law firm even if the conflict or likely harm is small. [51] There are two other considerations which undermine the strength of any delay argument. First, as mentioned above, Mr. Phillips proceeded with an action on behalf of Pearce-Ell in relation to the very agreements his law firm prepared following an all party meeting in July 2011 at his office. Moreover, the conditional nature of the transaction, which was crucial to the defendants and which appears to have been impressed upon Ms. Phillips at that meeting, features prominently in the pleadings. As noted above, disqualification in such circumstances is automatic. [52] Second, to give effect to the delay argument requires me to turn blind eye to the exacting standards imposed by the Law Society. am unable to see how clearly expressed Rule should be excused by pointing the equitable finger of delay at the Holgates. [53] Finally, Mr. Phillips submits the Holgates waived the confidential flavour of any information imparted to his law firm by their mere attendance at the July 2011 meeting. Again, two problems are evident from this line of argument. Mr. Phillips appears to confuse the ethical obligations imposed upon lawyers with evidentiary rules. The C.E.D. Western, 4th, Title 16: Barristers and Solicitors, explains the significance of this distinction at p. 279: §235 The ethical rule respecting confidentiality is distinguished from the evidentiary rule of solicitor-client privilege with respect to oral or documentary communications passing between client and lawyer. The ethical rule is wider, and applies without regard to the nature or source of the information or whether others may share the knowledge. (footnotes omitted) [54] Second, in order to waive the privilege which attaches to confidential information, “the waiver must be made clearly and the client must be fully informed.” (C.E.D. Western, supra, p. 286) There is no evidence before this Court of an informed waiver. DECISION [55] For the aforementioned reasons, the application is granted. There will be an order disqualifying Mervin Phillips and Leane Phillips from acting for the plaintiff, Helen Theresa Pearce-Ell, in this action. [56] Keith and Laura Holgate shall have their costs of this application fixed at $1,500.00, payable by Mervin C. Phillips. J. L. M. SCHWANN
HELD: The Court granted the application. It held that: 1) a solicitor-client relationship was created between the applicants and the defendants based on the evidence; and 2) that the applicants had not rebutted the presumption that they had received confidential information during the meeting that was relevant to the plaintiff’s action against the defendants. That finding was sufficient to disqualify them for acting for the plaintiff.