Rule 39 and Solicitors as Witnesses

May 21, 2009 Hull & Hull LLP Litigation Tags: , , , 0 Comments

Yesterday, my blog touched on the use of Rule 39.03 to examine non-party witnesses before the hearing of a pending motion or application.  As noted, Rule 39.03 can be used to summons solicitors to give relevant evidence about a deceased former client in estate litigation proceedings. However, given the special relationship between a solicitor and his/her client, it is always good practice to obtain a court order in advance which directs a solicitor to attend an examination and waives confidentiality and solicitor-client privilege over any evidence provided.  As demonstrated by a recent case, Rule 39.03 is not a carte blanche to examine solicitors about former clients.

In Nieweglowski Estate (Re) 2009 Canlii 13033 (On. S.C.), Justice Strathy held that a solicitor is entitled to the protection of a court order before being examined as a witness pursuant to Rule 39.03.  The case involved estate litigation over Mr. Nieweglowski’s Will and a property transfer made by him before his death.  Further to a prior court order, the solicitor who had assisted Mr. Nieweglowski produced his files regarding the matters.  However, the court order did not provide for the solicitor’s examination. The solicitor was then subpoenaed to give evidence pursuant to Rule 39.03.  Although the solicitor attended at his examination, he refused to give evidence. The ground for his objection was the absence of any express provision in the first court order. The party that had subpoenaed the solicitor moved before Justice Strathy for an order that the solicitor provide his evidence and that he be personally responsible for the costs of the first aborted examination.

Justice Strathy refused to order costs against the solicitor. His Honour held that it was not unreasonable for the solicitor to insist upon a court order directing him to attend an examination and provide evidence about privileged communications with a former client.  Accordingly, Justice Strathy ordered that the solicitor was entitled to provide his evidence regarding matters that would otherwise be privileged or confidential.

Have a great day!

Bianca La Neve

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