Nova Scotia Real Estate Commission v. Lorway MacEachern, (2009) 283 N.S.R.(2d) 67 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: March 25, 2009
• Jurisdiction: Nova Scotia
• Citations: (2009), 283 N.S.R.(2d) 67 (SC);2009 NSSC 266

N.S. Real Estate Comm. v. Lorway (2009), 283 N.S.R.(2d) 67 (SC);

    900 A.P.R. 67

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. NO.038

The Nova Scotia Real Estate Commission (applicant) v. Charles Lorway, Duncan MacEachern, Lorway MacEachern (respondents) and Nova Scotia Barristers' Society, The Nova Scotia Association of Realtors (intervenors)

(Hfx. No. 247204; 2009 NSSC 266)

Indexed As: Nova Scotia Real Estate Commission v. Lorway MacEachern

Nova Scotia Supreme Court

LeBlanc, J.

September 2, 2009.

Summary:

The Nova Scotia Real Estate Commission brought an action for, inter alia, an injunction to restrain a law firm from trading in real estate without a licence contrary to the Real Estate Trading Act. The law firm pleaded s. 3(d) of the Act, which provided that the Act did not apply to a lawyer trading "in the course and as part of that person's practice as a barrister and solicitor". The Commission alleged that the law firm's trading activities exceeded the scope of the exemption. The Commission applied under rule 20.06 for an order that the law firm produce copies of agreements of purchase and sale and legal fee agreements for properties sold by the law firm since 2001. The law firm had refused to disclose the documents, claiming solicitor/client privilege.

The Nova Scotia Supreme Court ordered production of the requested documents. Solicitor/client privilege did not protect communications between the law firm and clients that did not involve the giving or receiving of legal advice. Further, in most cases the information for which privilege was claimed had already been disclosed to third parties.

Evidence - Topic 4241

Witnesses - Privilege - Lawyer-client communications - Privilege - General - [See Practice - Topic 4577 ].

Practice - Topic 4573

Discovery - What documents must be produced - Documents related to or relevant and material to matters in issue - [See Practice - Topic 4577 ].

Practice - Topic 4577

Discovery - What documents must be produced - Privileged documents - Attorney-client communications (legal advice privilege) - The Nova Scotia Real Estate Commission claimed that a law firm was trading in real estate without a licence contrary to the Real Estate Trading Act - The Commission sought, inter alia, injunctive relief - The law firm pleaded s. 3(d) of the Act, which provided that the Act did not apply to a lawyer trading "in the course and as part of that person's practice as a barrister and solicitor" - Apart from providing legal advice, the law firm acted for clients in the purchase and sale of real estate - The law firm negotiated and prepared documents, provided marketing and advertising, and negotiated the sale of property for clients, including the placement of "for sale" signs and showing the properties to prospective purchasers - During discovery, the Commission sought copies of all purchase and sale agreements and legal fee agreements for properties sold by the law firm since 2001 - The law firm refused to disclose the information, pleading solicitor/client privilege and lack of relevance - The Nova Scotia Supreme Court allowed the Commission's rule 20.06 application for production of the information - The information was relevant - The law firm was not giving legal advice, but was effectively acting as a real estate agent for its clients - The court stated that "solicitor/client privilege does not protect communications between counsel and their client that does not involve the giving or receiving of legal advice. The fact that the Legal Fee Agreement purports to create a solicitor-client relationship is not determinative where there is no giving or receiving of legal advice. Furthermore, the information to which the privilege allegedly relates has, in many cases, clearly been disclosed to third parties, if only by way of 'for sale' signs in the [law firm's] names".

Practice - Topic 4585

Discovery - What documents must be produced - Privileged documents - Waiver - [See Practice - Topic 4577 ].

Cases Noticed:

Dominey v. Cosmetology Association of Nova Scotia (2005), 234 N.S.R.(2d) 316; 745 A.P.R. 316 (C.A.), refd to. [para. 7].

Securicor Canada Ltd. v. Dowling et al. (2003), 221 N.S.R.(2d) 79; 697 A.P.R. 79 (C.A.), refd to. [para. 7].

Upham v. You (1986), 73 N.S.R.(2d) 73; 176 A.P.R. 73 (C.A.), refd to. [para. 7].

Central Mortgage and Housing Corp. v. Foundation Co. of Canada Ltd. (1982), 54 N.S.R.(2d) 43; 112 A.P.R. 43 (C.A.), refd to. [para. 7].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 12].

Straka v. Humber River Regional Hospital et al. (2000), 137 O.A.C. 316; 193 D.L.R.(4th) 680 (C.A.), refd to. [para. 15].

Gaetz v. Nova Scotia (Attorney General) et al. (2005), 235 N.S.R.(2d) 392; 747 A.P.R. 392 (S.C.), refd to. [para. 17].

Descôteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 23].

Ontario (Securities Commission) v. Greymac Credit Corp. (1983), 41 O.R.(2d) 328 (Div. Ct.), refd to. [para. 25].

Minister of National Revenue v. Reddy, [2006] F.T.R. Uned. 165; 2006 CarswellNat 484; 2006 FC 277, refd to. [para. 29].

Maranda v. Leblanc, [2003] 3 S.C.R. 193; 311 N.R. 357; 2003 SCC 67, refd to. [para. 29].

Authors and Works Noticed:

Manes, Ronald D., and Silver, Michael P., Solicitor-Client Privilege in Canadian Law (1993), pp. 26 [para. 26]; 140 [para. 17].

Wigmore on Evidence (3rd Ed. McNaughton Rev. 1961), vol. 8, § 2285 [para. 16].

Counsel:

Jeff Aucoin, for the applicant;

Robert Risk, for the respondents.

This application was heard on March 25, 2009, at Halifax, N.S., before LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following judgment on September 2, 2009.