Guardian Insurance Co. of Canada v. 379227 Alberta Ltd. et al., (1999) 251 A.R. 334 (QB)

JudgeRomaine, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateAugust 16, 1999
Citations(1999), 251 A.R. 334 (QB)

Guardian Ins. Co. v. 379227 Alta. Ltd. (1999), 251 A.R. 334 (QB)

MLB headnote and full text

Temp. Cite: [1999] A.R. TBEd. SE.008

Guardian Insurance Company of Canada (plaintiff) v. 379227 Alberta Ltd., Dennis E. Dutchuk, Penelope E. Dutchuk and Campbell & Hillier Renovations Ltd. (defendants) and Stewart F. Gale and Stewart F. Gale & Associates Ltd.

(third parties)

(Action No. 9501-04624)

Indexed As: Guardian Insurance Co. of Canada v. 379227 Alberta Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Romaine, J.

August 16, 1999.

Summary:

A contractor was unable to complete work under a contract and became liable under bonds of surety to pay its subtrades and suppliers and for completion of, and defi­ciencies in, the construction. The surety sued the contractor and individuals who had executed indemnity agreements, including Dutchuk, for monies paid out under the bond. Third party proceedings were com­menced. Dutchuk applied for declarations that the solicitor for the surety and the sol­icitor for third parties were ineligible to continue to act for their respective clients. Dutchuk also sought a declaration that the defendants were entitled to call the surety's solicitor as a witness at the trial of the action.

The Alberta Court of Queen's Bench dis­missed the application to declare the surety's and the third parties' solicitors ineligible to act. The court left the issue of whether the surety's solicitor might be compelled to testify at trial to the trial judge.

Barristers and Solicitors - Topic 808

Duty to court - Counsel as a witness - Order of disqualification - A surety sued Dutchuk under an indemnity agreement - Dutchuk asserted that the surety's solicitor had knowledge of an agreement between her and the surety's adjuster and sought a declaration that he should be disqualified and that she was entitled to call him as a witness - The solicitor denied knowledge - The Alberta Court of Queen's Bench left the decision of whether the solicitor could be called as a witness to the trial judge - The court noted that even if compelled to testify, the solicitor could continue to represent the surety if it did not put the court in an invidious position - Further, the Alberta Code of Professional Conduct prohibited a lawyer from acting in proceedings in which is was likely that the lawyer would give evidence that might be contested - If called, the solicitor's evidence might not be contested - See paragraphs 30 to 34.

Barristers and Solicitors - Topic 1504

Relationship with client - General - Sol­icitor-client relationship - What consti­tutes - Dutchuk became liable to a surety under an indemnity agreement - Dutchuk assisted the surety's adjuster in settling the claims and deficiencies and worked with the surety's solicitor in finalizing the set­tle­ment documents - Thereafter, the surety sued Dutchuk and others for deficiencies - After six years of litigation and just prior to trial, Dutchuk sought a declaration that the surety's solicitor should be disqualified because he had represented her during the settlements and she had disclosed confi­dential information to him - The Alberta Court of Queen's Bench held that there was no duty of confidentiality where no solicitor and client relationship existed - Further, no reasonable expectation of privacy arose out of a dual representation or retainer where special arrangements were not made - See paragraphs 19 to 29 -Alternatively, the court would have dis­missed the application because of delay and the resulting harm to the surety - See paragraph 35.

Barristers and Solicitors - Topic 1648

Relationship with client - Confidential communications - Joint retainer by two or more parties - [See Barristers and Sol­icitors - Topic 1504 ].

Practice - Topic 3083

Application and motions - Applications - Delay - Effect of - [See Barristers and Solicitors - Topic 1504 ].

Cases Noticed:

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241; [1991] 1 W.W.R. 705; 77 D.L.R.(4th) 249, refd to. [para. 19].

Gray, Administrator of MacDonald Estate - see MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd.

Martin v. Gray - see MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd.

Manville Canada Inc. v. Ladner Downs, [1992] 2 W.W.R. 323 (B.C.S.C.), refd to. [para. 22].

Gainers Inc. v. Pocklington (1995), 165 A.R. 274 (C.A.), refd to. [para. 24].

Wiskerke v. Rice, [1997] A.J. No. 968 (C.A.), refd to. [para. 29].

Essa (Township) v. Guergis; Membery v. Hill (1993), 15 O.R.(3d) 573 (Div. Ct.), refd to. [para. 30].

Webb v. Attewell et al. (1994), 50 B.C.A.C. 1; 82 W.A.C. 1 (C.A.), refd to. [para. 32].

Miller (J.T.) Construction Ltd. v. South Calgary Properties Ltd., [1995] 8 W.W.R. 146; 165 A.R. 361; 89 W.A.C. 361 (C.A.), refd to. [para. 35].

Authors and Works Noticed:

Law Society of Alberta, Code of Professional Conduct, generally [paras. 27, 33].

Counsel:

J.W. Rose, for the plaintiff;

David Wolfman, for the defendant;

David Laidlaw, for the third party.

This application was heard by Romaine, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on August 16, 1999.

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12 cases
  • Coe v. Sturgeon General Hospital District No. 100 et al., (2000) 274 A.R. 313 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • 23 Marzo 2000
    ...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. 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 Notice......
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    ...Ltd. v. Lancaster Packing Inc. (1993), 51 C.P.R. (3d) 449 (Ont.Gen.Div), Guardian Insurance Co. of Canada v. 379227 Alberta Ltd. (1999), 251 A.R. 334 (Q.B.) and Filipovic v. Upshall (2000), 133 O.A.C. 151 (C.A.), do discuss certain indicia which may or may not determine that such a relation......
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