Coe v. Sturgeon General Hospital District No. 100 et al., (2000) 274 A.R. 313 (QB)

• Judge: Moen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 23, 2000
• Citations: (2000), 274 A.R. 313 (QB);2000 ABQB 698

Coe v. Sturgeon Hospital (2000), 274 A.R. 313 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. OC.086

Michael Coe (plaintiff) v. Sturgeon General Hospital District No. 100, Sturgeon General Hospital, Robert Sockett and The Board of Trustees of The Sturgeon General Hospital (defendants)

(Action No. 9103-25596; 2000 ABQB 698)

Indexed As: Coe v. Sturgeon General Hospital District No. 100 et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moen, J.

October 10, 2000.

Summary:

Coe, a doctor, worked at the Sturgeon General Hospital. He alleged the hospital conducted unwarranted investigations into his actions and took improper disciplinary actions against him. Coe submitted that Wintermute, counsel for the hospital, was a material witness in proving his claim. He applied for an order that Wintermute and his firm be disqualified from acting for the hospital in this action.

The Alberta Court of Queen's Bench dismissed the application. Wintermute's testimony was not necessary and there was no evidence that if he testified he would contradict his clients about the advice they had received from him.

Barristers and Solicitors - Topic 787

Duty to court - Disqualification of counsel - When required - Coe, a doctor, alleged that the hospital where he worked con­ducted unwarranted investigations into his actions and took improper disciplinary actions against him - Coe submitted that Wintermute, counsel for the hospital, was a material witness in proving his claim - He applied for an order that Wintermute and his firm be disqualified from acting for the hospital in this action - The Alberta Court of Queen's Bench dismissed the application - Wintermute's testimony was not necessary (his letters of advice were available to be produced) and there was no evidence that if he testified he would contradict his clients about the advice they had received from him - See paragraphs 27 to 40.

Barristers and Solicitors - Topic 808

Duty to court - Counsel as a witness - Order of disqualification - [See Barristers and Solicitors - Topic 787 ].

Evidence - Topic 4253

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - Facilitating tortious conduct - Coe, a doc­tor, sued the hospital where he worked - Coe submitted that counsel for the hospital was a material witness in proving his claim and that his evidence was not protected by solicitor-client privilege because the com­munications between counsel and the hospital were in furtherance of a tort (un­lawful interference with economic rela­tions) - The Alberta Court of Queen's Bench rejected the argument - The court stated that "destruction of solicitor-client privilege takes more than evidence of the existence of a crime (or tort) and proof of an anterior consultation with a lawyer. There must be something to suggest that the lawyer did not merely advise about the legality of the client's action, but made himself either a dupe or a conspirator in the facilitation of a crime (or tort) ... The evidence before me does not establish that [counsel] conspired with his client or was duped by them" - See paragraphs 16 to 23.

Evidence - Topic 4254

Witnesses - Privilege - Lawyer-client communications - Waiver - General - Coe, a doctor, sued the hospital where he worked - Coe submitted that counsel for the hospital was a material witness in proving his claim and that his evidence was not protected by solicitor-client privi­lege because the hospital had waived privi­lege by pleading good faith - The Alberta Court of Queen's Bench rejected the argu­ment - The court agreed that "an assertion of good faith on the basis that actions were taken as a result of legal advice does result in a waiver of solicitor-client privilege", but held that "it does not follow from a waiver of privilege, if there is one, that the solicitor has to testify him or herself as to the advice given to the client" - See para­graphs 24 to 26.

Cases Noticed:

Michel v. Lafrentz et al. (1991), 120 A.R. 355; 8 W.A.C. 355 (C.A.), refd to. [para. 11].

Enerchem Ship Management Inc. v. Ship Coastal Canada et al., [1988] 3 F.C. 421; 83 N.R. 256 (F.C.A.), refd to. [para. 11].

Descôteaux et al. v. Meirzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 14].

R. v. Cox and Railton (1884), 14 Q.B.D. 153, refd to. [para. 17].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, refd to. [para. 17].

Goldman, Sachs & Co. v. Sessions et al. (1999), 26 B.C.T.C. 49 (S.C.), refd to. [para. 18].

O'Rourke v. Darbishire, [1920] All E.R. 1 (H.L.), refd to. [para. 20].

Pax Management Ltd. et al. v. Canadian Imperial Bank of Commerce, [1987] 5 W.W.R. 252 (B.C.C.A.), refd to. [para. 20].

Guardian Insurance Co. of Canada v. 379227 Alberta Ltd. et al. (1999), 251 A.R. 334 (Q.B.), refd to. [para. 33].

Webb v. Attewell et al. (1994), 50 B.C.A.C. 1; 82 W.A.C. 1 (C.A.), refd to. [para. 33].

Authors and Works Noticed:

Klar, Lewis N., Linden, Allan M., Cherniak, Earl and Krywocuk, Peter, Remedies in Tort (Update), vol. 3, pp. 24 to 46 [para. 21].

Law Society of Alberta, Code of Profes­sional Conduct (1997), c. 10, rule 10 [para. 32]; rule 10 Commentary [para. 32].

Counsel:

Robert Duke, Q.C., for the plaintiff;

Elizabeth Johnson, for the defendants.

This application was heard on March 23, 2000, by Moen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on October 10, 2000.