Stewart McKelvey Stirling Scales v. Nova Scotia Barristers' Society et al., 2005 NSSC 258

• Judge: Scanlan, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 14, 2005
• Jurisdiction: Nova Scotia
• Citations: 2005 NSSC 258;(2005), 236 N.S.R.(2d) 327 (SC)

Stewart, McKelvey v. Barristers Soc. (2005), 236 N.S.R.(2d) 327 (SC);

    749 A.P.R. 327

MLB headnote and full text

Temp. Cite: [2005] N.S.R.(2d) TBEd. SE.016

In The Matter Of an investigation by the Nova Scotia Barristers' Society of Blois Colpitts;

 

In The Matter Of two subpoenas issued by the Nova Scotia Barristers' Society to John Rogers, Q.C., dated July 22, 2005;

 

And In The Matter Of the Legal Profession Act, S.N.S. 2004, C.28;

 

And In The Matter Of the Public Inquiries Act, R.S.N.S. 1989, C.372;

 

And In The Matter Of the Barristers and Solicitors Act, R.S.N.S., 1989, C.30.

Stewart McKelvey Stirling Scales (applicant) v. Nova Scotia Barristers' Society, Knowledge House Inc., Daniel Potter, Solutioninc. Ltd., 2532230 Nova Scotia Limited, 2317540 Nova Scotia Limited, Futureed Inc., and Blois Colpitts (respondents)

(S.H. No. 253058; 2005 NSSC 258)

Indexed As: Stewart McKelvey Stirling Scales v. Nova Scotia Barristers' Society et al.

Nova Scotia Supreme Court

Scanlan, J.

September 22, 2005.

Summary:

The Complaints Investigation Committee (CIC) of the Nova Scotia Barristers' Society subpoenaed documents from a lawyer. At issue on this application was whether the CIC was entitled to access documents which were or might be subject to solicitor-client privilege where the client had objected to the lawyer, or law firm, disclosing privileged documents to the CIC.

The Nova Scotia Supreme Court held that the lawyer was obliged to provide the material and in so doing was deemed not to have breached any privilege of his client (Legal Professions Act, ss. 77(1), 77(3) and 77(4)).

Barristers and Solicitors - Topic 1623.2

Relationship with client - Duty of confidentiality (or professional secrecy) - Disclosure to discipline committee - The Complaints Investigation Committee (CIC) of the Nova Scotia Barristers' Society subpoenaed documents from a lawyer - At issue was whether the CIC was entitled to access documents which were or might be subject to solicitor-client privilege where the client had objected to the lawyer, or law firm, disclosing privileged documents to the CIC - The Nova Scotia Supreme Court held that the lawyer was obliged to provide the material and in so doing was deemed not to have breached any privilege of his client (Legal Professions Act, ss. 77(1), 77(3) and 77(4)) - If there were gaps in the legislation, public policy considerations required that the information requested had to be provided so as to allow the Society to continue its investigation - The duty to provide the requested information was inherent in the solicitor's obligation to self report and provide information necessary to conduct the type of investigation required to maintain public confidence and to allow the Society to fulfill its purpose as set out in the legislation.

Barristers and Solicitors - Topic 5245

Discipline - Procedure - Evidence and proof - [See Barristers and Solicitors - Topic 1623.2 ].

Barristers and Solicitors - Topic 5254

Discipline - Defences - Privileged communications - [See Barristers and Solicitors - Topic 1623.2 ].

Barristers and Solicitors - Topic 7605

Regulation - General - Interpretation of regulatory legislation - [See Barristers and Solicitors - Topic 1623.2 ].

Barristers and Solicitors - Topic 7659

Regulation - Powers of governing bodies - Order for search and seizure (incl. subpoena) - [See Barristers and Solicitors - Topic 1623.2 ].

Practice - Topic 4577

Discovery - What documents must be produced - Privileged documents - Attorney-client communications - [See Barristers and Solicitors - Topic 1623.2 ].

Cases Noticed:

Bedford Service Commission v. Nova Scotia (Attorney General) and Halifax-Dartmouth Regional Authority (1976), 18 N.S.R.(2d) 132; 20 A.P.R. 132; 72 D.L.R.(3d) 639 (C.A.), refd to. [para. 9].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, folld. [para. 9].

MacKeigan, J.A., et al. v. Royal Commission (Marshall Inquiry) (1988), 85 N.S.R.(2d) 219; 216 A.P.R. 219; 43 C.C.C.(3d) 287 (T.D.), affd. (1988), 87 N.S.R.(2d) 443; 222 A.P.R. 443; 46 C.C.C.(3d) 191 (C.A.), affd. [1989] 2 S.C.R. 796; 100 N.R. 81; 94 N.S.R.(2d) 1; 247 A.P.R. 1, refd to. [para. 20].

MacKeigan v. Hickman - see MacKeigan, J.A., et al. v. Royal Commission (Marshall Inquiry).

Lavallee, Rackel & Heintz et al. v. Canada (Attorney General), [2002] 3 S.C.R. 209; 292 N.R. 296; 312 A.R. 201; 281 W.A.C. 201; 217 Nfld. & P.E.I.R. 183; 651 A.P.R. 183; 164 O.A.C. 280, refd to. [para. 21].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 21].

Pritchard v. Human Rights Commission (Ont.) (2004), 319 N.R. 322; 187 O.A.C. 1; 2004 SCC 31, refd to. [para. 24].

Parry-Jones v. Law Society and Others, [1968] 1 All E.R. 177 (C.A.), folld. [para. 25].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 28].

Robertson Stromberg, Re (1995), 128 Sask.R. 107; 85 W.A.C. 107 (C.A.), refd to. [para. 31].

Law Society of Saskatchewan v. Robertson Stromberg - see Robertson Stromberg, Re.

Counsel:

John F. Rook, Q.C., and Derek J. Bell, for the applicant, Stewart McKelvey Stirling Scales;

Douglas A. McGillivray, Q.C., for the respondent, Nova Scotia Barristers' Society;

Daniel Potter, self-represented;

Phillip M. Chapman, for the respondent, 2317540 Nova Scotia Ltd.;

Craig M. Garson, Q.C., for the respondent, Blois Colpitts.

This application was heard at Halifax, Nova Scotia, on September 14, 2005, by Scanlan, J., of the Nova Scotia Supreme Court, who delivered the following decision on September 22, 2005.