Feschuk v. Hudema and Ziegler, (1994) 126 Sask.R. 26 (QB)

• Judge: Halvorson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 02, 1994
• Jurisdiction: Saskatchewan
• Citations: (1994), 126 Sask.R. 26 (QB)

Feschuk v. Hudema (1994), 126 Sask.R. 26 (QB)

MLB headnote and full text

Michael J. Feschuk (plaintiff) v. Terence Hudema and Kenneth Ziegler (defendants)

(1993 Q.B. No. 1578)

Indexed As: Feschuk v. Hudema and Ziegler

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Halvorson, J.

November 2, 1994.

Summary:

An uncle sought assistance from his nephew to invest his savings. The nephew misappropri­ated money entrusted to him by the uncle. The uncle sued his nephew. He also sued a lawyer who had been retained by the nephew to assist in investing the money, alleging that the lawyer breached a duty owed to the uncle.

The Saskatchewan Court of Queen's Bench awarded the uncle judgment against his nephew, but dismissed the action against the lawyer.

Barristers and Solicitors - Topic 4321

Relations with third parties - Negligence - General - An uncle entrusted money to his nephew to invest for him - The nephew misappropriated some of the money - The uncle sued a lawyer who had been retained by the nephew to assist in investing the money, alleging that there was a sufficient relationship between him­self and the law­yer to engender a duty of care or a fiduciary duty - The lawyer, who had disbursed part of the uncle's funds to the nephew, claimed that he acted in ac­cor­dance with the nephew's instructions, which he believed the nephew had author­ity to make - The Saskatchewan Court of Queen's Bench found a relationship which raised a duty of care, but held that the lawyer's actions did not constitute a negli­gent breach of that duty - There was no fiduciary relationship.

Barristers and Solicitors - Topic 4441

Relations with third parties - Duty to third parties - General - [See Barristers and Solicitors - Topic 4321 ].

Equity - Topic 3607

Fiduciary or confidential relationships - Relationships which are not fiduciary - [See Barristers and Solicitors - Topic 4321 ].

Cases Noticed:

Nagel v. Stevenson, [1980] 2 W.W.R. 417; 1 Sask.R. 221 (C.A.), refd to. [para. 17].

Waryk v. Owen, Bird (1990), 44 B.C.L.R.(2d) 37 (C.A.), refd to. [para. 17].

Noel & Lewis Holdings Ltd. v. Owen, Bird - see Waryk v. Owen, Bird.

Ross v. Caunters, [1979] 3 All E.R. 580 (Ch. D.), refd to. [para. 25].

Heath v. Ivens, McGuire, Souch & Ottho (1991), 6 C.C.L.T.(2d) 311 (B.C.S.C.), refd to. [para. 25].

Whittingham v. Crease & Co. (1978), 6 C.C.L.T. 1 (B.C.S.C.), refd to. [para. 25].

Klingspon v. Ramsay, [1985] 5 W.W.R. 411 (B.C.S.C.), refd to. [para. 25].

Luckiw Holdings (1980) Ltd. v. Murphy (1986), 80 A.R. 14; 49 Alta. L.R.(2d) 200 (C.A.), refd to. [para. 33].

Panko v. Simmonds (1982), 42 B.C.L.R. 50 (S.C.), refd to. [para. 33].

Sinclair v. Smith (1982), 41 B.C.L.R. 374 (S.C.), refd to. [para. 33].

Nagel v. Stern Motors Ltd. (1960), 67 Man. R. 1 (Q.B.), refd to. [para. 40].

Tracey v. Atkins (1977), 83 D.L.R.(3d) 46 (B.C.S.C.), affd. (1979), 105 D.L.R.(3d) 632 (C.A.), refd to. [para. 43].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57; 61 D.L.R.(4th) 14; 69 O.R.(2d) 287; 35 E.T.R. 1, refd to. [para. 43].

Hodgkinson v. Simms et al. (1994), 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1 (S.C.C.), refd to. [para. 43].

Counsel:

E.F. Anthony Merchant and K.A. Clarke, for the plaintiff;

Terence Hudema acted on his own behalf;

G.A. Zabos, for the defendant, Kenneth Ziegler.

This case was heard before Halvorson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on No­vember 2, 1994.