Maduik v. Wasylyshen, (1999) 178 Sask.R. 241 (QB)

• Judge: Pritchard, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 09, 1999
• Jurisdiction: Saskatchewan
• Citations: (1999), 178 Sask.R. 241 (QB)

Maduik v. Wasylyshen (1999), 178 Sask.R. 241 (QB)

MLB headnote and full text

Temp. Cite: [1999] Sask.R. TBEd. AP.008

Albert Alwood Maduik (respondent/applicant) v. Kenneth Wayne Wasylyshen, carrying on business under the firm name, and style of Wasylyshen Law Office (applicant/respondent)

(1998 S.C. No. 89)

Indexed As: Maduik v. Wasylyshen

Saskatchewan Court of Queen's Bench

Judicial Centre of Yorkton

Pritchard, J.

April 9, 1999.

Summary:

A lawyer obtained an ex parte order grant­ing him a solicitor's lien under s. 66 of the Legal Professions Act and directing that the accounts in question be set down for tax­ation. The lien related to work done for a client, MacIntyre (now deceased). The accounts were taxed by the taxing officer in accordance with the order. The ex parte order also gave the executor of MacIntyre's estate the opportunity to challenge the law­yer's entitlement to the solicitor's lien. The executor applied to have the court settle the matter of the lien.

The Saskatchewan Court of Queen's Bench held that the lawyer was entitled to a lien respecting the work done for the client in relation to a bankruptcy proceeding.

Barristers and Solicitors - Topic 4704

Solicitor's lien - When available - Section 66(1) of the Legal Professions Act pro­vided that a lawyer employed to prosecute or defend a proceeding could apply to the court for a lien or charge against any personal property not in the lawyer's pos­session that was recovered or preserved as a result of the lawyer's services - The Saskatchewan Court of Queen's Bench set out the requirements for a lien under s. 66(1) - They noted that s. 66(1) did not specify that the personal property that was recovered or preserved must be the subject matter of the proceeding; however, it must be recovered or preserved as a result of such proceeding - Therefore as long as property was recovered or preserved as a result of the solicitor's services and the other requirements of the section were met, the section should be available to authorize the granting of a solicitor's lien - See paragraphs 7 to 14.

Barristers and Solicitors - Topic 4704

Solicitor's lien - When available - A lawyer obtained an absolute discharge for a bankrupt client - The client died and the client's executor terminated the law­yer's services - The lawyer obtained a solicitor's lien against the deceased client's estate for various services rendered, in­cluding ser­vices relating to the bankruptcy - The client's major asset was his resi­dence which had been sold by the executor - The Saskatchewan Court of Queen's Bench held that the funds from the sale of the residence constituted property pre­served as a result of the services provided by the lawyer in the bankruptcy proceeding (Legal Professions Act, s. 66(1)) - The lawyer was therefore entitled to a lien on the funds for fees and disbursements relat­ing to the bankruptcy proceedings.

Cases Noticed:

Tkach, Duchin & Bayda v. Wood and Fairhurst (1992), 99 Sask.R. 256 (Q.B.), refd to. [para. 8].

Ginter v. Chapman et al. (1969), 4 D.L.R. (3d) 89 (B.C.S.C.), refd to. [para. 13].

Booth v. Smith, Graham, Hunt, Buck, [1985] O.J. No. 1286 (H.C.), refd to. [para. 17].

Winding-up Act, In re; In re Home As­surance Co. of Canada (No. 4), [1950] 1 W.W.R. 337 (Alta. S.C.), refd to. [para. 23].

Statutes Noticed:

Legal Professions Act, S.S. 1990-91, c. L-10.1, sect. 66 [para. 7]; sect. 73 [para. 18].

Authors and Works Noticed:

Antle, Stephen, Solicitors' Charging Liens (1990), 48 The Advocate 673, p. 681 [para. 13].

Counsel:

S.G. Kyba, for the respondent/applicant;

Kenneth Wayne Wasylyshen, for the appl­icant/respondent.

This case was heard before Pritchard, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Yorkton, who delivered the following decision on April 9, 1999.