Ma v. Quinn, 2011 ABQB 103

Court of Queen ’ s Bench of Alberta Citation: Ma v. Quinn, 2011 ABQB 103 Date: 20110303 Docket: 0901 10388 Registry: Calgary Between: Dung Ngoc Ma and Sen Ky Ma Plaintiffs - and - Maurice A. Quinn and the Firm Quinn Law Firm, Kenneth Tighe, Austin Quoi Nguyen, Thomas F. Glenn and the Firm Low, Glenn & Card, M. Jenny McMordie and the Firm Fraser Milner Casgrain LLP., Alberta Lawyers Insurance Association and Law Society of Alberta Regarding Associations and Insurer Liability With Relevant Defendants Herein.

Defendants _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J. Strekaf _______________________________________________________ [ 1 ] The Plaintiffs Dung Ngoc Ma and Sen Ky Ma are appealing a decision of Master Hanebury granting applications by the Defendants Kenneth Tighe, Austin Nguyen, Thomas Glenn and the law firm Low Glenn & Card for

summary dismissal of the action commenced against them and dismissing the Plaintiffs’ application for

summary judgment: 2010 ABQB 257 . [ 2 ] This action arose out of an earlier action commenced by the Plaintiffs against Linda Ma and Sothearth Yin, who were in a common law relationship. Linda Ma is the daughter of the Plaintiffs. Ms. Ma and Mr. Yin lived together at 128 Rundleridge Road NE in Calgary (the “Property”), which was registered in the name of Mr Yin.

[ 3 ] In the first action, which was commenced in August 2006, the Plaintiffs sued Ms. Ma and Mr. Yin alleging that they were in breach of an agreement to transfer the Property to the Plaintiffs as repayment for a loan advanced by the Plaintiffs. The Plaintiffs were represented in the first action by Jenny McMordie of Fraser Milner Casgrain. [ 4 ] The Plaintiffs allege that Ms. Ma and Mr. Yin picked up Ms. Ma’s mother and took her to the law offices of Maurice Quinn on August 25, 2005, at which time a transfer was executed by Mr. Yin transferring the Property into the name of Ms.

Ma’s mother (the “First Transfer”). The First Transfer was submitted to the Land Titles Office in January 2006, but was not registered at that time, as the mortgage was in arrears and a certificate of lis pendens had been registered in respect of a foreclosure action commenced in respect of the Property. [ 5 ] On March 29, 2006, Mr. Yin executed a second transfer purporting to transfer the Property into the name of Linda Ma (the “Second Transfer”). The Second Transfer was prepared by Kenneth Tighe.

When the Land Titles Office identified that two transfers had been submitted in respect of the Property, the Registrar refused to register either transfer without a court order and place a Registrar’s caveat on the title on April 6, 2006. [ 6 ] The relief sought by the Plaintiffs in the first action included specific performances of the agreement to transfer the Property to the Plaintiffs and damages in the alternative. [ 7 ] Ms. Linda Ma and Mr. Yin retained Thomas Glenn to defend them in the first action. Mr. Glenn filed an Amended Statement of Defence and Counterclaim in which Ms. Ma and Mr.

Yin denied the existence of the agreement to transfer the Property. [ 8 ] Sometime prior to May 31, 2006, Austin Nguyen prepared a Quit Claim of the Property whereby Mr. Yin purported to surrender his interest in the Property to Ms. Linda Ma in consideration of a release of his past and future child support obligations. Mr. Nguyen forwarded the Quit Claim to Mr. Glenn’s associate at Low Glenn & Card. [ 9 ] The second action was commenced by the Plaintiffs in July 2009. The Plaintiffs were self represented at this time.

In this action, the Plaintiffs sued five lawyers (Maurice Quinn, Kenneth Tighe, Austin Nguyen, Thomas Glenn and Jennie McMordie), three law firms (Quinn Law Firm, Low Glenn & Card, and Fraser Milner Casgrain), the Alberta Lawyers Insurance Association (“ALIA”) and the Law Society of Alberta. [ 10 ] The claims against ALIA and the Law Society were dismissed by Justice Romaine on November 19, 2009 as disclosing no cause of action. [ 11 ] The

summary dismissal application which is the subject of this appeal was brought by the Defendants Tighe, Nguyen and Glenn and the law firm Low Glen & Card, none of which ever acted on behalf of the Plaintiffs. While the second Statement of Claim is somewhat garbled and confusing, the allegations against these Defendants appear to be based upon fraud and conspiracy. It is alleged that Mr. Tighe prepared a fraudulent transfer of the Property, that Mr. Nguyen counselled Ms. Linda Ma and Mr. Yin inappropriately and prepared the Quit Claim and that Mr. Glenn prepared and filed an unmeritorious Statement of Defence and Counterclaim. The application for

summary dismissal of the claim as against these Defendants pursuant to Rule 159 of the old Rules of Court was granted by the Master on April 26, 2010. [ 12 ] The new Rules of Court came into effect on November 1, 2010. Pursuant to the transitional provisions, orders granted under the old rules are to be treated as if granted under the new rules.

Further, Rule 15.12 states: Where these rules impose a new test, provide new criteria or provide an additional ground for making an application in an existing proceeding, these rules in respect of the application apply if the application was made but has not been heard prior to the coming into force of these rules. [ 13 ] As a result, this appeal is governed by Rule 6.14, which provides in part:

6.14(3) An appeal from a Master’s judgment or order is an appeal on the record of proceedings before the Master and, if the judgepermits, may also be based on new evidence that is significant enough that it could have affected the Master’s decision. 6.14(4) The record of proceedings is: (

a) the application before the Master; (

b) affidavits and other evidence files by the parties respecting the application before the Master; (

c) any transcript of proceedings before the Master, unless the court dispenses with this requirement; and, (

d) the Master’s judgment or order and any written reason given for the decision. [14] The Plaintiffs filed additional affidavit evidence on this appeal, much of which is more properly viewed as argument. For thepurposes of this appeal, I have taken that affidavit into account and treated it as part of the Plaintiffs’ argument. [15] Justice Macklin recently addressed the standard of review on an appeal from a decision by a Master in Janvier v. 834474Alberta Ltd., 2010 ABQB 800. I agree with his analysis. He stated at paras. 12 - 18: 12.

Historically in Alberta, appeals from decisions of Masters were considered de novo. That is, there was a new hearing before aQueen's Bench judge who was not bound, in any way, by the decision of the Master. There was no deference given to the Master'sdecision. Such was the state of the law in Alberta for over 90 years (see United Utility Workers Association of Canada v. TransAltaCorp., 2004 ABCA 200 at para. 4). 13. Rule 6.14 of the new Rules has changed the way in which an Appeal Court is to consider an appeal from a decision of the Master.An appeal from a Master is no longer a hearing de novo.

It is now an appeal on the record. As such, the standard of review for thedecision of the Master must be determined before the Appeal Court considers the appeal on its merits. 14. In Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235, the Court considered the different standards of reviewapplicable to different issues that may arise on appeal. On a pure question of law, an Appeal Court is free to replace the opinion of thetrial judge with its own. The standard of review is one of correctness (at para. 8). 15.

The Master generally does not have jurisdiction to determine disputed or contentious questions of fact: Court of Queen's BenchAct, R.S.A. 2000, c. C-31, s. 9(3)(b). If there remains a dispute on material facts at the time of the application, there must be a trial.However, if one party's evidence on material facts is either destroyed by cross-examination on affidavit or the introduction of otherevidence rendering that party's evidence completely non-credible, then the Master may accept certain facts or may draw inferences offact.

Such findings or inferences of fact are not to be interfered with unless the Master made a "palpable and overriding error". That is,the Master is entitled to a high degree of deference on findings or inferences of facts drawn from the evidence. 16. Questions of mixed fact and law involve applying a legal standard to a set of facts (Housen at para. 26). The applicable level ofdeference depends upon the characterization of the error made. Where the erroneous finding can be traced to an error in law, there is lessdeference given and the applicable standard is one of correctness.

Where the legal principle cannot readily be extricated from the factualquestions, then the finding is subject to the more stringent standard of palpable and overriding error (Housen at para. 37; De Shazo v.Nations Energy Co., 2005 ABCA 241).

17. The standard of review from the dismissal of an application for

summary judgment is correctness in identifying the legal test forsummary judgment and reasonableness in the decision itself (Airco Aircraft Charters Ltd. v. Edmonton Regional Airports, 2010 ABCA364 at para. 7). The Alberta Court of Appeal has said that in the absence of an error of law, the Chambers Justice "has considerablediscretion in an application for

summary judgment" and interference is warranted only where "the Justice has come to an unreasonableconclusion" (Baugh v. Faculty Assn. of Red Deer College, 2004 ABCA 203 at para. 6). 18. In

summary, the standard of review on a decision from the Master on a question of law is correctness. The standard of review forfacts accepted by the Master or factual inferences drawn by the Master from the evidence is reasonableness. The finding must amount toa palpable and overriding error. The imputed error must be plainly identified and must be shown to have affected the result. On aquestion of mixed fact and law, if the principle of law cannot be extricated from the question, then the standard of review is again one ofreasonableness only to be interfered with if a palpable and overriding error can be shown.

If the principle of law can be extricated fromthe question, then the standard of review on the principle of law is correctness. [16] There are a number of issues to be addressed on this appeal: 1. Did the Master apply the correct legal test on the application for

summary dismissal? 2. Did the Master err by granting

summary dismissal before examinations for discovery have been completed? 3. Should the Master’s decision be set aside as a result of errors made by the Master in describing the evidence in the Reasons forJudgment? 4. Was the Master’s determination that there was no genuine issue for trial reasonable? 1. Did the Master apply the correct legal test on the application for

summary dismissal? [17] The legal test to be applied upon an application under Rule 159 for

summary judgment or

summary dismissal of a claim is aquestion of law, for which the standard of review is correctness. The test was succinctly and correctly described by Justice Ross in Sima v. Hui, 2008 ABQB 104, 90 Alta. L.R. (4th) 360 at paras. 20 - 21, where she stated: 20.

Summary judgment is appropriate only where it is "plain and obvious that the action cannot succeed": Boudreault v. Barrett,1998 ABCA 232 , [1998] A.J. No. 784 (C.A.), at para. 9 ("Boudreault"). If there is "a genuine issue of material fact requiringtrial," the Plaintiff should not be denied his day in court: Guarantee Co. of North America v. Gordon Capital Corp., (SCC), [1999] 3 S.C.R. 423 (S.C.C.), at para. 27 ("Guarantee Co."). On the other hand, there are important reasons to grant

summaryjudgment where the required standard is met. If the Plaintiff cannot succeed, allowing the case to proceed means a waste of time andresources for both the parties and the court. "The purpose of the Rule is to eliminate hopeless claims and hopeless defences": Rabbitskinv. Greyhound Canada Transportation Corporation, 2003 ABQB 94 (Alta. Master), at para. 23. 21. The initial onus in a

summary judgment application is on the applicant to show that there is no genuine issue for trial. Once theapplicant has made this case, the onus then shifts to the respondent to "establish his claim as being one with a real chance of success":Guarantee Co., at para. 27. The respondent cannot simply rely on the allegations in his pleadings, or on the possibility that furtherevidence may be available at trial. If the respondent fails to come forward with evidence to prove a meritorious case,

summary judgmentwill be given against him: Jager Industries Inc. v. Canadian Occidental Petroleum Ltd., 2000 ABQB 592 (Alta. Q.B.), at paras. 20-25. [18] In her written reasons, the Master stated at paras. 25 - 27: 25. Mr. Thomas Glenn and Low Glenn and Card acted on behalf of Linda Ma in relation to the ongoing claim of the Mas naming her

as a defendant and seeking to determine the ownership of the property. The law makes it clear that Mr. Glenn owes no duty of care to theMas except in the most unusual circumstances. Mr. Glenn has satisfied the burden upon him to establish that there is no merit to theclaim. The Mas must then convince the court that there is a genuine issue to go to trial. The information and arguments they have reliedon to do so is insufficient. The application of Mr. Glenn and his firm to dismiss the Mas' claim is granted. 26. Mr. Nguyen prepared the quit claim to Mr. Lin which was never filed nor registered.

The Mas suffered no damages as a result ofits preparation. Therefore they have no claim against him and their claim against him is dismissed. 27. Mr. Tighe prepared the transfer of the property from Linda Ma to Mr. Lin at a time when there was apparently a pre-existingtransfer of the property which Mr. Quinn, the Mas' lawyer at that time, failed to register. Mr. Tighe has satisfied the court that there is nomerit to the claim against him. The information and arguments relied upon by the Mas have not convinced this court that there is anygenuine issue to go to trial. The claim of the Mas against Mr.

Tighe is dismissed. [19] I am satisfied that the Master made no error of law and applied the correct legal test. 2. Did the Master err by granting

summary dismissal before examinations for discovery have been completed? [20] The Plaintiffs argued that the action should not have been dismissed as the examinations for discovery had not yet beencompleted. There is no requirement for examination for discovery to be completed before an application for

summary judgment isbrought: Leeson v. Lim, 2003 ABQB 913 per Greckol, J. at para. 18. 3. Should the Master’s decision be set aside as a result of errors made by the Master in describing the evidence in theReasons for Judgment? [21] The Plaintiffs point to a number of errors made by the Master in describing the evidence in the Reasons for Judgment. In myview, none of these errors justify setting aside the decision. [22] Throughout the Reasons, the Master referred to Linda Ma’s common law spouse as Mr. Lin, rather than by his correct namewhich is Mr. Yin.

This is a simple mistake or typographical error that had no impact on the substance of the decision. It is of norelevance on the appeal. [23] The Master mistakenly described the Property as registered in the name of Linda Ma, when the evidence indicated that theProperty was registered in the name of Mr. Yin. The Master then mistakenly described Linda Ma as executing a Quit Claim to transfertitle to Mr. Yin, when the evidence was that Mr. Yin executed a Quit Claim in favour of Ms. Ma.

For the purposes of the allegationsagainst the Defendants bringing this application, it is immaterial whether the property was registered in the name of Ms. Ma or in thename of Mr. Yin and which of the two of them executed the Quit Claim. This error had no impact on the substance of the Master’sdecision. 4. Was the Master’s determination that there was no genuine issue for trial reasonable? [24] The standard of review on a decision to grant

summary dismissal is reasonableness: Eng v. Eng, 2010 ABCA 19, [2010] 6W.W.R. 29. [25] As the Master recognized in her Reasons for Judgment, the law is clear that a party can only sue an opposing party’s lawyer in rare circumstances: German v. Major (1985) 62 A.R.2, 1985 ABCA 176 , 20 D.L.R. (4th) 703 (C.A.) at para. 58; Martel v. Spitz, 2005 ABCA 63, 40 Alta. L.R. (4th) 199 at paras. 11 -12; Hanson v. Hanson, 2009 ABCA 222, 457 A.R. 77 at para. 15; DataNetInformation Systems Inc v. Belzil, 2010 ABQB 72, 485 A.R. 301 at paras. 93 - 96. [26] The Master specifically addressed and dismissed the arguments advanced by the Plaintiffs in support of the alleged

conspiracy. She noted that: - the use of the word “she” instead of “he” in affidavits of execution did not support the existence of a conspiracy involving legal counsel; - Mr.

Tighe’s statement that he never met Linda Ma prior to preparing the second transfer when he had represented her several years earlier on a real estate transaction did not constitute evidence of a conspiracy as real estate lawyers meet with large number of people on brief occasions in the course of their career; - a fax from the Land Titles Office providing a search prior to execution of the second transfer which stated “hope this was quick enough” is not evidence of a conspiracy as searches are done to prepare documents for meetings with clients in advance of executing documents; and, - the inconsistency in the affidavit of Mr.

Nguyen where he stated that he had provided unsigned copies of the quitclaim documents to Low Glenn & Card while his letter forwarding same refers to signed copies of the Quit Claim is not evidence of a conspiracy but rather of a badly worded affidavit. [ 27 ] The Master concluded that there was no genuine issue raised in respect of these Defendants. I am satisfied that her decision to grant

summary dismissal was not only reasonable, but was the decision which I would have made in the circumstances having regard to the evidence and to allegations in the Statement of Claim.

The Plaintiffs allegations against these Defendants in the Statement of Claim are of seemingly independent actions, without any allegations or evidence that there was an agreement amongst them, which is an essential element of the tort of conspiracy: DataNet Information Systems, Inc. , supra , at paras. 77 - 82 . [ 28 ] Finally, I note that the Plaintiffs have made a number of unfounded allegations in their brief and oral submissions that the Master’s Reasons for Judgment were written for an ulterior purpose or by someone other than the Master.

I am satisfied that there is absolutely no basis for these allegations, which are absurd. [ 29 ] The Defendants are entitled to the costs of this appeal. Heard on the 11 th day of January, 2011. Dated at the City of Calgary, Alberta this 3 rd day of March, 2011. J. Strekaf J.C.Q.B.A.

Appearances: Dung Ngoc Ma Sen Ky Ma Self Represented Aldo. P. Argento D. Aaron Stephenson Macleod Dixon LLP. for the Defendants