Wirick (Re)

Wirick (Re)

The court ordered the custodian to produce for inspection and copying the accounting materials described (the forty binders: trust ledgers and trust account documentation) to the named financial institutions and to the trustee, because the applicants demonstrated urgent and valid reasons to trace substantial funds and alternate sources were inadequate; production was permitted subject to protective terms deleting non-Gill client names, limiting copying to documents necessary for tracing, restricting inspection to approved professionals who give undertakings including redaction and notification obligations, and prohibiting voluntary disclosure to police without further court order; Law...

Citation
2002 BCSC 1355
Parties
Solicitor/subject: Martin K. Wirick; Custodian of Practice: Gordon Bennett; Client: Tarsem Singh Gill; Lender/applicant: MCAP Financial Corporation; Lender/applicant: Toronto Dominion Bank; Lender/applicant: HSBC Bank Canada; Lender/applicant: Royal Bank of Canada; Lender/applicant: CIBC Mortgages Inc.; Lender/applicant: Vancouver City Savings Credit Union; Lender/applicant: Citizens Bank of Canada; Trustee of Gill: Trustee of Mr. Gill (Deloitte & Touche); Trustee in Bankruptcy: Trustee in bankruptcy of Martin K. Wirick; Regulator/party of Interest: Law Society of British Columbia
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
23 September 2002
Procedural Posture
Applications for Production of Trust Account and Solicitor Files (legal Profession Act; Bankruptcy) / Hearing and Reasons for Judgment on Applications for Inspection and Copying
Outcome
Application granted in part with protective measures; production ordered of accounting binders to lenders and trustee on terms; Law Society audits not produced; MCAP files produced on client consent; no order as to costs
Legal Topics
Document Production, Tracing of Funds, Custodianship, Confidentiality and Privilege, Use and Disclosure Restrictions, Audit Documents Exemption
Source Language
English
Solicitor Client Privilege Trusts and Fiduciary Duties Bankruptcy and Insolvency Property and Mortgage Law Evidence Professional Regulation of Lawyers Document Production Tracing of Funds +4 more

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Parties

Martin K. Wirick

Solicitor/subject

Gordon Bennett

Custodian of Practice

Tarsem Singh Gill

Client

MCAP Financial Corporation

Lender/applicant

Toronto Dominion Bank

Lender/applicant

HSBC Bank Canada

Lender/applicant

Royal Bank of Canada

Lender/applicant

CIBC Mortgages Inc.

Lender/applicant

Vancouver City Savings Credit Union

Lender/applicant

Citizens Bank of Canada

Lender/applicant

Trustee of Mr. Gill (Deloitte & Touche)

Trustee of Gill

Trustee in bankruptcy of Martin K. Wirick

Trustee in Bankruptcy

Law Society of British Columbia

Regulator/party of Interest

Procedural Posture

Applications for Production of Trust Account and Solicitor Files (legal Profession Act; Bankruptcy) / Hearing and Reasons for Judgment on Applications for Inspection and Copying

Legal Issues

  1. 1 Whether the custodian must produce trust ledgers and trust account documentation to lenders and the trustee to permit tracing of mortgage funds
  2. 2 Whether disclosure of accounting materials breaches solicitor-client privilege or the broader duty of confidentiality and how to protect non-consenting clients
  3. 3 Whether Law Society audit reports are producible

Ratio Decidendi

The court ordered the custodian to produce for inspection and copying the accounting materials described (the forty binders: trust ledgers and trust account documentation) to the named financial institutions and to the trustee, because the applicants demonstrated urgent and valid reasons to trace substantial funds and alternate sources were inadequate; production was permitted subject to protective terms deleting non-Gill client names, limiting copying to documents necessary for tracing, restricting inspection to approved professionals who give undertakings including redaction and notification obligations, and prohibiting voluntary disclosure to police without further court order; Law...

Court Disposition

Application granted in part with protective measures; production ordered of accounting binders to lenders and trustee on terms; Law Society audits not produced; MCAP files produced on client consent; no order as to costs

Orders

  • Custodian to produce for inspection and copying trust ledgers and trust account documentation (bank statements, deposit slips, cancelled cheques, copies of cheques, cheque requisition slips) comprising the forty binders to listed financial institutions and to the trustee of Martin K. Wirick
  • Prior to copying, custodian to delete names of any non-Gill clients from the forty binders; copying to be at applicants' expense and made available at a location designated by the custodian