Hanks Estate, Re, (2014) 308 Man.R.(2d) 195 (QBM)

• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: August 13, 2014
• Jurisdiction: Manitoba
• Citations: (2014), 308 Man.R.(2d) 195 (QBM);2014 MBQB 169

Hanks Estate, Re (2014), 308 Man.R.(2d) 195 (QBM)

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. AU.018

In The Matter Of: The Estate Of Eva Hanks

Cyril John Hanks (petitioner) v. Kathleen Alexander as Executrix of the Estate of Eva Hanks (respondent)

(PR 13-03-00982; 2014 MBQB 169)

Indexed As: Hanks Estate, Re

Manitoba Court of Queen's Bench

Portage la Prairie Centre

Harrison, Master

August 13, 2014.

Summary:

Hanks asserted that, in 2001 or 2002, he met with Selinger, who gave him legal advice regarding financial affairs between Hanks and his wife. Subsequently, Selinger was retained by Hanks' wife in their domestic dispute. Hanks' wife passed away before they were able to reach a final settlement agreement. Hanks' petition requesting an equal division of property was served on the deceased wife's estate, which was represented by Selinger. In 2014, alleging a conflict of interest arising from Selinger's having received confidential information from Hanks in 2001 or 2002, Hanks moved for an order removing Selinger as solicitor of record for the estate.

A Master of the Manitoba Court of Queen's Bench denied the motion.

Barristers and Solicitors - Topic 1601.1

Relationship with client - Conflict of interest or duties - Delay in complaining of conflict - Hanks asserted that, in 2001 or 2002, he met with Selinger for legal advice regarding financial affairs between Hanks and his wife - Subsequently, Selinger was retained by Hanks' wife in their domestic dispute - Hanks' wife passed away before they reached a final settlement agreement - Hanks' petition was served on the deceased wife's estate, which was represented by Selinger - In 2014, alleging a conflict of interest arising from Selinger's having received confidential information from Hanks in 2001 or 2002, Hanks moved for an order removing Selinger as solicitor of record for the estate - A Master of the Manitoba Court of Queen's Bench denied the motion - Given the delay of many years, the court had to examine whether Hanks was estopped by laches - Mere passage of time did not constitute laches - What was more of a concern here was Hanks' actual or implied acceptance of Selinger's representing his wife - Hanks' conduct in failing to object to Selinger's representation precluded Hanks from receiving the relief sought - The parties had attempted to resolve their marital issues for many years - Selinger's role was never raised by Hanks as an impediment to any negotiations or agreements - To now state that Selinger could not act for the wife's estate was inequitable given Hanks' acquiescence - Many important decisions had been made while Selinger represented the wife - It was "simply unfair" to force the wife's executrix to choose new counsel.

Barristers and Solicitors - Topic 1601.4

Relationship with client - Conflict of interest or duties - Considerations - Passage of time - [See Barristers and Solicitors - Topic 1601.1 ].

Equity - Topic 2061

Equitable defences - Laches - General (incl. when applicable) - [See Barristers and Solicitors - Topic 1601.1 ].

Estoppel - Topic 1161

Estoppel in pais (by conduct) - Representation - By conduct - Acquiescence - [See Barristers and Solicitors - Topic 1601.1 ].

Estoppel - Topic 1327

Estoppel in pais (by conduct) - Acquiescence or encouragement - Standing by without objection - [See Barristers and Solicitors - Topic 1601.1 ].

Cases Noticed:

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

MacDonald Estate v. Martin and Rossmere Holdings (1970) Ltd., [1990] 3 S.C.R. 1235; 121 N.R. 1; 70 Man.R.(2d) 241, refd to. [para. 11].

Roadrunner Apparel Inc. et al. v. Gendis Inc. et al. (2006), 208 Man.R.(2d) 269; 383 W.A.C. 269; 2006 CarswellMan 395 (C.A.), refd to. [para. 12].

Blundon et al. v. Storm, [1972] S.C.R. 135, refd to. [para. 17].

Archbold v. Scully (1861), 9 H.L. Cas. 360, refd to. [para. 18].

Robert v. Montreal Trust Co., [1918] S.C.R. 342, refd to. [para. 19].

Marafioti v. Metropolitan Toronto Condominium Corp. No. 775 (1994), 39 R.P.R.(2d) 47 (Ont. Gen. Div.), refd to. [para. 21].

Authors and Works Noticed:

Canadian Encyclopedic Digest, Vol. 10, Title 56, s. 51, p. 64 [para. 21].

Counsel:

Diane H. Stevenson, for the petitioner;

Gordon T. Selinger, for the respondent.

This motion was heard by Harrison, Master, of the Manitoba Court of Queen's Bench, Portage la Prairie Centre, who delivered the following reasons for judgment on August 13, 2014.