Lappin v. Bauer, 2015 NSSC 108

• Judge: Edwards, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: February 18, 2015
• Jurisdiction: Nova Scotia
• Citations: 2015 NSSC 108;(2015), 358 N.S.R.(2d) 77 (SC)

Lappin v. Bauer (2015), 358 N.S.R.(2d) 77 (SC);

    1131 A.P.R. 77

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MY.019

Jacqueline Lappin (plaintiff/applicant) v. Colin Bauer and Patricia Curry-Bauer (defendants/respondents)

(Syd. No. 431635; 2015 NSSC 108)

Indexed As: Lappin v. Bauer

Nova Scotia Supreme Court

Edwards, J.

April 9, 2015.

Summary:

The plaintiff moved for an order declaring the law firm of S.M. to be in a conflict and removing any lawyer associated with the firm of S.M. as solicitor of record for the defendants.

The Nova Scotia Supreme Court allowed the motion.

Barristers and Solicitors - Topic 1611

Relationship with client - Conflict of interest or duties - Conduct of action against former client - In June 2010, the plaintiff retained Hannem of the law firm of S.M. to assist in the purchase of a property - Subsequent to the closing, the defendants informed the plaintiff that the property did not possess a legal easement to a well that provided water to the property - Hannem advised the plaintiff to leave the situation as it was and to contact him if any issues arose with the well - In July 2013, the defendants further advised the plaintiff that the property did not possess a legal easement to pass over a portion of the defendants' driveway to access the plaintiff's property - The defendants began construction of a fence that would block the plaintiff's access to the shared portion of the driveway - The plaintiff discussed the issue with a lawyer from S.M., but subsequently retained the services of a different firm and commenced an action - The defendants retained the services of S.M. - The plaintiff moved for an order declaring the law firm of S.M. to be in a conflict and removing any lawyer associated with the firm of S.M. as solicitor of record for the defendants - The Nova Scotia Supreme Court allowed the motion - The 2010 representation of the plaintiff in the property purchase and the 2013 representation of the defendants regarding the driveway easement dispute regarding the same property were related - Confidential information was at risk - If the court was wrong, and there was no confidential information at risk, it would still disqualify S.M. from acting for the defendants - There was a conflict of interest.

Barristers and Solicitors - Topic 1619

Relationship with client - Conflict of interest or duties - Situations resulting in a conflict - [See Barristers and Solicitors - Topic 1611 ].

Cases Noticed:

Johnson v. Rudolph et al. (2013), 332 N.S.R.(2d) 235; 1052 A.P.R. 235; 2013 NSSC 210, refd to. [para. 13].

Bhandal et al. v. Khalsa Diwan Society of Victoria, [2013] B.C.T.C. Uned. 1425; 2013 BCSC 1425, refd to. [para. 14].

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. 20].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462; 1982 CanLII 22, refd to. [para. 22].

Brookville Carriers Flatbed GP Inc. v. Blackjack Transport Ltd. et al. (2008), 263 N.S.R.(2d) 272; 843 A.P.R. 272; 2008 NSCA 22, refd to. [para. 26].

Canadian National Railway Co. v. McKercher LLP - see Wallace v. Canadian Pacific Railway et al.

Wallace v. Canadian Pacific Railway et al. (2013), 446 N.R. 1; 423 Sask.R. 1; 588 W.A.C. 1; 2013 SCC 39, refd to. [para. 29].

Enterprise Cape Breton Corp. v. Crown Jewel Resort Ranch Inc. et al. (2014), 343 N.S.R.(2d) 102; 1084 A.P.R. 102; 2014 NSSC 105, refd to. [para. 30].

Counsel:

Sean MacDonald, for the plaintiff/applicant;

Robert Risk, for the defendants/respondents.

This motion was heard at Sydney, N.S., on February 18, 2015, by Edwards, J., of the Nova Scotia Supreme Court, who delivered the following decision on April 9, 2015.