Lavoie v. Hulowski, 2005 SKQB 26

• Judge: Klebuc, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 12, 2005
• Jurisdiction: Saskatchewan
• Citations: 2005 SKQB 26;(2005), 265 Sask.R. 181 (QB)

Lavoie v. Hulowski (2005), 265 Sask.R. 181 (QB)

MLB headnote and full text

Temp. Cite: [2005] Sask.R. TBEd. MR.001

Philip Lavoie and Diane Lavoie (applicants/plaintiffs/defendants by counterclaim) v. Cassie Hulowski, represented by her Litigation Guardians, Jerry Hulowski, Orest Hulowski, Joyce Jean and Shirley Kusznir (respondent/defendant/plaintiff by counterclaim)

(2003 Q.B.G. No. 390; 2005 SKQB 26)

Indexed As: Lavoie v. Hulowski

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Klebuc, J.

January 12, 2005.

Summary:

The plaintiffs applied under rules 215 and 217 of the Queen's Bench Rules for an order directing the litigation guardians for the defendant to disclose the name of the solicitor acting for the defendant in an estate matter and to produce or provide access to that solicitor's files.

The Saskatchewan Court of Queen's Bench allowed the application in part. The court ordered the disclosure of certain documents. The court also ruled that the defendant and her litigation guardians were not obligated to disclose the names of any solicitors that she may have contacted other than by way of the documentation of the kind ordered to be disclosed and generally in the reasons for judgment.

Practice - Topic 4555

Discovery - Production and inspection of documents - General - What constitutes a document - Rule 211 of the Queen's Bench Rules, defined "document" as including "information recorded or stored by means of any device and includes an audio recording, video recording, computer disc, film ... or machine readable information" - The Saskatchewan Court of Queen's Bench held that on a plain-meaning reading of rule 211, the disclosure of the name of a solicitor, as requested by the applicants, did not fit within the definition of "document" - However, the applicants' real purpose in ascertaining the name of the respondent's solicitor was to gain access to her solicitor's files and the files in a contemporaneous matter in his or her possession, which were undoubtedly "documents" - See paragraphs 7 to 9.

Practice - Topic 4572

Discovery - What documents must be produced - Documents in possession, power or control of party - The defendant's litigation guardians in an action resulting from a failed real estate transaction pleaded that the defendant was mentally incompetent at the time of the sale agreement - At around the same time, the defendant allegedly instructed her solicitor in an Estate matter - The plaintiffs, who wanted to establish the true mental state of the defendant at the relevant time, sought disclosure of the solicitor's name and production or access to that solicitor's files - The Saskatchewan Court of Queen's Bench ruled: (1) the plaintiffs failed to establish that the respondent had any power over the Estate, its files or its solicitor and therefore should be denied the right to discover the Estate's files directly; (2) if the defendant consulted any lawyer to represent her concerning the Estate, any document in the possession of such lawyer was clearly within her power and was to be disclosed in her statement as to documents to the extent it was relevant to the issues in the instant case - See paragraphs 7 to 15.

Practice - Topic 4573

Discovery - What documents must be produced - Documents related to or relevant and material to matters in issue - The defendant's litigation guardians in an action resulting from a failed real estate transaction pleaded that the defendant was mentally incompetent at the time of the sale agreement - At around the same time, the defendant allegedly instructed her solicitor in an Estate matter - The plaintiffs, who wanted to establish the true mental state of the defendant at the relevant time, sought disclosure of the solicitor's name and production or access to that solicitor's files - The Saskatchewan Court of Queen's Bench ruled that the request was too broad - However, the court held that if the defendant had consulted a solicitor regarding the Estate, any notes or memoranda on such solicitor's file describing the respondent's instructions and communications could indicate her state of mind at or near the time of the alleged sale contract and therefore were relevant - The court ordered their disclosure - See paragraphs 16 to 23, 38, 39.

Practice - Topic 4585

Discovery - What documents must be produced - Privileged documents - Waiver - The Saskatchewan Court of Queen's Bench, in a case where the defendant put her mental state in issue, ruled that by offering the plaintiffs partial production, through the defendant's former lawyers, of the communications between the defendant and any solicitor she instructed regarding a matter contemporaneous to the present case, the defendant's litigation guardians implicitly waived solicitor-client privilege to many, if not all, such documents - See paragraphs 3, 24 to 37.

Cases Noticed:

Popowich v. Saskatchewan et al., [1996] 8 W.W.R. 609; 144 Sask.R. 166; 124 W.A.C. 166 (C.A.), consd. [para. 8].

Donric Enterprises Ltd. v. Northco Foods Ltd., 1994 CarswellSask 623 (Q.B.), consd. [para. 17].

Bank of Montreal v. 3D Properties Inc. et al. (No. 3) (1993), 110 Sask.R. 302 (Q.B.), consd. [para. 18].

St. Marie v. St. Marie, [1995] 2 W.W.R. 388; 127 Sask.R. 81 (Q.B.), consd. [para. 20].

Landru et al. v. Inter City Contractors Ltd. et al. (1986), 48 Sask.R. 308 (Q.B.), consd. [para. 24].

Potash Corp. of Saskatchewan Mining Ltd. v. Saskatchewan Government Insurance (1990), 83 Sask.R. 19 (Q.B.), consd. [para. 24].

Lac La Ronge Indian Band et al. v. Canada and Saskatchewan, [1996] 10 W.W.R. 625; 147 Sask.R. 257 (Q.B.), consd. [para. 25].

Siemens et al. v. Bawolin et al. (1998), 181 Sask.R. 141 (Q.B.), consd. [para. 26].

International Minerals & Chemicals Corp. (Canada) Ltd. et al. v. Commonwealth Insurance Co. et al. (1992), 104 Sask.R. 216 (Q.B.), consd. [para. 29].

Mamaca v. Coseco Insurance Co., [2004] O.T.C. 994 (Sup. Ct. Master), refd to. [para. 32].

Signcorp Investments Ltd. v. Cairns Homes Ltd. (1988), 63 Sask.R. 224 (Q.B.), consd. [para. 32].

Saskatchewan Economic Development Corp. v. Smith-Roles Ltd. and Royal Bank of Canada (1990), 82 Sask.R. 233 (Q.B.), consd. [para. 35].

Popowich v. Saskatchewan et al., [1998] 8 W.W.R. 355; 167 Sask.R. 41 (Q.B.), consd. [para. 36].

Statutes Noticed:

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.), Queen's Bench Rules.

Rules of Court (Sask.), Queen's Bench Rules, rule 211 [para. 8]; rule 212(1), rule 213, rule 215 [para. 7]; rule 217 [para. 5].

Counsel:

Lawrence J. Zatlyn, Q.C., for the applicants/plaintiffs;

Peter A. Abrametz, for the respondent/defendant.

Klebuc, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, heard this application and delivered the following judgment on January 12, 2005.