Tkach, Duchin & Bayda v. Wood and Fairhurst, (1992) 99 Sask.R. 256 (QB)

• Judge: Hunter, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 29, 1992
• Jurisdiction: Saskatchewan
• Citations: (1992), 99 Sask.R. 256 (QB)

Tkach, Duchin & Bayda v. Wood (1992), 99 Sask.R. 256 (QB)

MLB headnote and full text

Tkach, Duchin & Bayda (plaintiff) v. Shirley Ann Wood (defendant)

(No. 4335 Q.B. 1991)

Tkach, Duchin & Bayda (plaintiff) v. Bette Anne Fairhurst (defendant)

(No. 4025 Q.B. 1991)

Indexed As: Tkach, Duchin & Bayda v. Wood and Fairhurst

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Hunter, J.

January 29, 1992.

Summary:

A law firm was discharged by two clients when the solicitor who was representing them left the firm. The law firm applied under s. 66(1) of the Legal Profession Act for a lien against the personal property of the two former clients.

The Saskatchewan Court of Queen's Bench dismissed the application.

Barristers and Solicitors - Topic 4704

Solicitor's lien - General and definitions - When available - The Saskatchewan Court of Queen's Bench held that a solicitor applying for a lien under s. 66(1) of the Legal Profession Act must establish that the solicitor was employed to defend or prosecute a proceeding in court or before a tribunal, that personal property was recovered or preserved as a result of the solicitor's efforts, that the property is not in the solicitor's possession, that the pro­ceedings have been concluded and that a tax­ation, if required, has been concluded so the court knows the claim is for proper fees and expenses - See paragraph 19.

Barristers and Solicitors - Topic 4705

Solicitor's lien - General and definitions - Circumstances when not available - A law firm applied for a lien under s. 66(1) of the Legal Profession Act against the personal property of two of its former clients - The Saskatchewan Court of Queen's Bench dismissed the application - The court outlined the requirements for a lien under s. 66(1) and held the law firm was not entitled to a lien against the prop­erty of either client because in both cases it failed to establish that property had been recovered or preserved as a result of the efforts of a solicitor with the law firm - See paragraphs 20 and 21.

Barristers and Solicitors - Topic 4706

Solicitors lien - General and definitions - General versus specific liens - The Saskatchewan Court of Queen's Bench stated that s. 66 of the Legal Profession Act is a codification of the common law of solicitor's liens with s. 66(1) providing for a particular lien and s. 66(3) providing for a general lien - The court distinguished between a general lien which allows a solicitor to retain any property already in their pos­session until fees are paid and a particular lien which applies only to prop­erty which was recovered or preserved as a result of the solicitor's efforts in an action or proceed­ing - See paragraphs 6 to 10.

Cases Noticed:

Bloomaert v. Dunlop, [1930] 1 W.W.R. 270 (Sask. C.A.), consd. [para. 8].

Home Assurance Co. of Canada, Re, [1950] 1 W.W.R. 337, affd. [1950] 2 W.W.R. 1169 (Alta. C.A.), refd to. [para. 11].

Paulson v. Murray, [1922] 2 W.W.R. 654 (Man. K.B.), consd. [para. 12].

Linden v. Bastedo (1915), 7 O.W.N. 603, consd. [para. 13].

Wilson, King v. Lyall, [1987] 4 W.W.R. 366 (B.C.C.A.), consd. [para. 14].

Jering v. Jering, [1987] 5 W.W.R. 550; 45 Man.R.(2d) 296 (Man. Q.B.), consd. [para. 15].

Iwanczuk v. Nachewski, [1950] 2 W.W.R. 241 (Man. K.B.), consd. [para. 16].

Wellman v. Jerome (1967), 63 D.L.R.(2d) 530 (Sask. Q.B.), consd. [para. 17].

Statutes Noticed:

Chanring Orders Act, U.K. 1979, gen­erally [para. 7].

Legal Profession Act, S.S. 1990, c. L-10.1, sect. 66 [para. 5].

Solicitors Act, U.K. 1974, generally [para. 7].

Authors and Works Noticed:

Cordery on Solicitors (8th Ed., 1988), [paras. 6, 7].

Counsel:

A.K. Bayda, for the plaintiff;

S.A. Wood, on her own behalf;

C.H. Toews, for Bette Anne Fairhurst.

This application was heard before Hunter, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following decision on January 29, 1992.