Digest: Gerow v Dobko, 2018 SKQB 128

• Date: April 27, 2018

Reported as: 2018 SKQB 128

Docket Number: DIV 171/15 JCS , QB17516

Court: Court of Queen's Bench

Date: 2018-04-27

Judges:

• Dufour

Subjects:

• Barristers�and Solicitors � Confidentiality ��Conflict of Interest�� Application for�Removal

Digest: The respondent applied to disqualify a lawyer and the lawyers at his law firm from acting for the petitioner in their family law action. The parties were married in 2002 and executed a pre-nuptial agreement. The respondent retained her own counsel regarding the agreement. In it, the respondent waived her rights relating to the division of property. The parties separated in 2014 and the petitioner issued a petition for divorce wherein he claimed exemptions based on the agreement. The respondent disputed its validity and sought an equal division of family property. The respondent argued that the disqualification was warranted because: 1) the lawyer in question and the members of his firm had a conflict of interest arising from their dealings with her in the past; and 2) members of the firm would be witnesses at trial. HELD: The application was dismissed. The court found with respect to each of the grounds that: 1) the respondent failed to discharge her onus to establish that the lawyer or the firm received confidential information attributable to a solicitor-and-client relationship that was sufficiently related to this action. Where the lawyer or members of the firm had dealt with matters related to the action, they had represented the petitioner, not the respondent; and 2) after considering the factors set out in the Supreme Court�s decision in Essa that were relevant to this case, the court noted that the application was brought very late in the proceedings and that it would be prejudicial to the petitioner if his counsel were removed at this stage. The respondent may not be exhibiting bad faith in making the application, but as she had practised law, she would have been aware of what she would have to prove and from where the evidence would have to come. However, she was very late to indicate that she would be calling the lawyer or members of his firm to testify at trial. Finally and most importantly, even if the lawyer or members of his firm were called as witnesses, they would not be able to divulge what the petitioner told them or what advice they had given because of solicitor-client privilege. The respondent had not shown that the petitioner�s counsel were likely to...