Wong v. Leung, 2011 ABQB 687

Court of Queen ’ s Bench of Alberta Citation: Wong v. Leung, 2011 ABQB 687 Date: 20111109 Docket: 0903 03126 Registry: Edmonton Between: V.W. Wong (V.W.W.) Plaintiff - and - David Hung-Chee Leung, Paul M.K. Leung, Martin Hattersley, Brent W. Mielke, Shtabsky & Tussman LLP, C.H. William Cheung, Public Guardian and Public Trustee of Government of Alberta, Monica Leung Defendants _______________________________________________________ Memorandum of Decision of L.A. Smart, Master in Chambers _______________________________________________________ I.

Introduction [ 1 ] The Defendant Martin Hattersley applies to strike the Plaintiff’s Statement of Claim on the grounds that it discloses no reasonable claim and is frivolous, irrelevant, or improper, or otherwise constitutes an abuse of process. [ 2 ] In the alternative, Mr. Hattersley seeks a

summary judgment dismissing the Plaintiff’s claims against him.

II. Facts [ 3 ] This action arises out of a related proceeding previously commenced by Ms. Wong. In July 2002, the Defendant Monica Leung, the Plaintiff’s Guardian and Trustee at the time, retained the Defendant Mr. Hattersley to commence an action against the Defendant David Hung-Chee Leung (Mr.Leung). On July 12, 2002, Mr. Hattersley filed a Statement of Claim, commencing Alberta Court of Queen’s Bench Action No. 0203 13525 (the “ 2002 Action ”). [ 4 ] At the time the Statement of Claim was issued, the Defendant David Hung-Chee Leung resided in the Province of British Columbia.

Under the Rules of Court then in force, Ms. Wong was required to obtain an Order for service ex juris in order to personally serve Mr. Leung with the Statement of Claim in British Columbia. [ 5 ] The Defendant Brent W. Mielke, counsel for Mr. Leung in the 2002 Action, advised Mr. Hattersley that he would accept service of the Statement of Claim on behalf of Mr. Leung on condition that the deadline to file a Statement of Defence would be extended to August 31, 2002. [ 6 ] On August 30, 2002, Mr. Leung filed a Statement of Defence and Counterclaim in the 2002 Action. [ 7 ] The Defendant Mr.

Hattersley subsequently ceased to Act for the Plaintiff and filed a Notice of Intention to Cease to Act on September 11, 2002. [ 8 ] On March 2, 2009, Ms. Wong filed a Statement of Claim commencing this action against a number of parties involved in the 2002 Action, including Mr. Hattersley. . [ 9 ] The parts of the Statement of Claim that pertain to Mr. Hattersley are as follows: 2. The Defendant, Mr. Martin Hattersley, was a legal counsel representing the Plaintiff V.W.W. on the Queen’s Bench Action Q.B. No. 0203 13525, he filed the Statement of Claim on July 12, A.D. 2002.

Monica Leung was a Guardian and Trustee for V.W.W. and what therefore a dependant adult. 3. Mr. Martin Hattersley (hereinafter referred to “Defendant Martin”) met both the Plaintiff V.W.W. and Monica Leung in his office to collect information and detail regarding Q.B. No. 0203 13525. 4. Defendant Martin issued a Statement of Claim to David Hung-Chee Leung on behalf of the Plaintiff V.W.W. and Monica Leung. 5. After delivering a Statement of Claim to the Defendant, David Hung-Chee Leung (hereinafter referred to as the “Defendant David”)’s counsel, Mr. C.H.

William Cheung (hereinafter referred to as the “Defendant Cheung”) of Shtabsky & Tussman LLP at Oxford Tower of Edmonton, Alberta, no Statement of Defence was filed by Defendant Cheung, or his legal agent Brent W. Mielke within 14 days. 6. The Defendant Monica Leung (hereinafter referred to as “Defendant Monica”) had visited the Defendant Martin’s office to file a noting in default to enter judgment against the Defendant David and the Plaintiff V.W.W. 7. Defendant Martin, Defendant Cheung, counsels for the Q.B. No. 0203 13525 had created unnecessary pain and suffering to the Plaintiff V.W.W. and Defendant David.

8. The Q.B. No. 0203 13525 has been in the Court of Appeal since 2006 and has been until the current date, and mostly likely will continue to afterwards. The Plaintiff V.W.W. has suffered unnecessary pain and suffering regarding Defendant Martin, Defendant Cheung and his agent Brent W. Mielke to get money from dependant adult Plaintiff V.W.W. [ 10 ] Based on these allegations, Ms. Wong claims general damages of $380,000.00, along with out-of-pocket expenses of $1,800. III. Issue [ 11 ] There are two issues in this Application: 1. Should the Plaintiff’s claim against the Defendant Mr. Hattersley be struck? 2. In the alternative, should a

summary judgment dismissing the Plaintiff’s claim against the Defendant Mr. Hattersley be granted? IV. Analysis 1. Application of the New Rules of Court [ 12 ] This Application was originally scheduled to be heard before the Alberta Rules of Court , Alta. Reg. 124/2010 [ New Rules ] came into force on November 1, 2010.

Due to the availability of the parties, the Application was not heard until December 10, 2010. [ 13 ] Under the transitional provisions of the New Rules , Rule 15.12 provides that: 15.12 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 apply in respect of the application if the application was made but has not been heard prior to the coming into force of these rules. [ Emphasis added. ] [ 14 ] Since this Application was not heard until after November 1, 2010, the New Rules apply. 2. Should Ms.

Wong ’s Pleadings against Mr. Hattersley be Struck? The Test for Striking Out Pleadings [ 15 ] Rule 3.68, which now governs applications to strike, provides as follows: 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following:

(

a) that all or any part of a claim or defence be struck out; (

b) that a commencement document or pleading be amended or set aside; (

c) that judgment or an order be entered; (

d) that an action, an application or a proceeding be stayed.

(2) The conditions for the order are one or more of the following: (

a) the Court has no jurisdiction; (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process; (

e) an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim. [16] The Defendant relies on the grounds set out in Rule 3.68(2)(b), (c), and (

d) in advancing his Application. [17] The general test for striking pleadings was summarized by the Alberta Court of Appeal in Tottrup v. Alberta (Minister ofEnvironment), 2000 ABCA 121, 186 D.L.R. (4th) 226 at 234: The principles governing an application to strike a statement of claim for failure to disclose a cause of action are relatively settled. Inbrief, the Court must assume that the allegations of fact made by the plaintiff are true. The Court then determines whether those factsdisclose a cause of action in law. The test set out by the Supreme Court in Hunt v.

Carey Canada Inc. (SCC), [1990] 2S.C.R. 959 at 980, is whether it is “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action.Caution is required before concluding that the plaintiff has no chance of success. The plaintiff is entitled to a broad reading of thepleadings. Although the pleadings should be liberally interpreted, the Court has a duty to apply the Rule as it is intended. If the alleged facts,examined in light of the existing law, do not disclose a cause of action the claim should be struck.

Needless litigation should be avoided. [Emphasis added.] [18] Decisions rendered under the New Rules have confirmed that this authority continues to apply: Van Giessen v. MontanaAlberta Tie Ltd., 2011 ABQB 219 at para. 4; Chevalier v. Sunshine Village Corporation, 2011 ABQB 544 at para. 5; Martin v. GeneralTeamsters, Local Union No. 362, 2011 ABQB 412 at para. 6; Donaldson v. Farrell, 2011 ABQB 11 at para. 30. [19] However, pleading deficiencies will not necessarily result in an action being struck.

As this court noted in Chevalier v.Sunshine Village Corporation, 2011 ABQB 544 at para. 18: An action may be struck if no amount of amendment could save the action. A pleading will not be struck if the flaws in it are capable ofamendment: Hunt v. T.& N (Carey Can.), , [1990] 2 S.C.R. 959. Do the Pleadings Disclose a Reasonable Claim? [20] The law with respect to the required essentials of pleadings was succinctly summarized by the Alberta Court of Appeal inTottrup at para. 11 and confirmed to apply to the New Rules in Martin v. General Teamsters, Local Union No. 362, 2011 ABQB 412 atpara. 10:

In my view, it is not the allegation of a duty at law that is critical, but the facts alleged supporting such a duty. For example, a Statement of Claim alleging only that “A” breached a duty owed to “B” thereby causing damage does not, in my view, disclose a cause of action. Pleadings are allegations of fact and, in my view, where negligence is alleged, that allegation must be supported by facts capable of sustaining a determination that a duty was owed, that

an act or omission occurred breaching that duty, and that damages resulted . On a Motion to Strike it is the allegations of fact that must be examined to determine whether a cause of action exists. [ Emphasis added. ] [ 21 ] There is no question that the Statement of Claim pleads sufficient facts to establish a duty of care. Paragraph 2 of the Statement of Claim discloses that Mr. Hattersley acted on behalf of Ms. Wong in the 2002 Action.

The lawyer-client relationship necessarily impies a duty of care on the part of the lawyer. [ 22 ] However, the remainder of the Statement of Claim contains a number of disparate facts, which, taken together, fail to disclose any wrongdoing on the part of the Defendant Mr. Hattersley. At para. 6 of the Statement of Claim, the Plaintiff pleads that the Defendant Monica Leung visited Mr. Hattersley’s office to file a noting in default against Mr. Leung in the 2002 Action.

Without any explanation, the Plaintiff then immediately proceeds to allege, at paras. 7 and 8, that she has suffered “unnecessary pain and suffering” at the hands of Mr. Hattersley. Even on the most generous reading, taking into account that the pleadings were drafted by a self-represented litigant, this language fails to advance an allegation of a breach of any duty. [ 23 ] Finally, the Statement of Claim fails to disclose any rational connection between any wrongdoing and the damages of $380,000.00. There are no facts that tend to establish how these damages arose.

Indeed, the Statement of Claim pleads no wrongdoing to begin with. [ 24 ] Even if I were to read in the ostensibly missing language into the Plaintiff’s Statement of Claim, the only allegation against Mr. Hattersley is his apparent failure to note Mr. Leung in default in the 2002 Action when instructed 14 days after the claim was issued.. [ 25 ] In sum, even assuming the truth of every statement pled in the Statement of Claim, it is plain and obvious and beyond reasonable doubt that the claim against Mr. Hattersley cannot succeed.

No amount of amendment can possibly save this action. [ 26 ] I find the Statement of Claim discloses no reasonable claim against the Defendant Mr. Hattersley. Is the Statement of Claim Frivolous, Irrelevant, Improper, or an Abuse of Process [ 27 ] A pleading that is frivolous is one that is indicative of bad faith or is hopeless factually: Donaldson v. Farrell , 2011 ABQB 11 at para. 20 . In other words, a frivolous plea is one so palpably bad that the Court needs no real argument to be convinced of that fact: Haljan v. Serdahely Estate , 2008 ABQB 472 at para. 21 . [ 28 ] Mr. Leung resided in British Columbia.

Under Rule 30 of the former Alberta Rules of Court , Alta. Reg. 390/1968, Ms. Wong was required to obtain a court order before she could serve Mr. Leung in British Columbia. Had Mr. Hattersley applied for and obtained that order, the time for filing a Statement of Defence would also be fixed by that order which was commonly set at 30 days. It would then be necessary to send the order and Statement of Claim to an agent or process server who could then effect service. [ 29 ] What Mr. Hattersley did was take advantage of an alternative mode of service supplied by Rule 16. Under Rule 16, Ms.

Wong could avoid having to serve Mr. Leung personally in British Columbia if Mr. Leung’s lawyer accepted service and undertook to file a statement of defence.

[ 30 ] Mr. Leung’s counsel accepted service, undertook to file a Statement of Defence by August 31, 2002 and did so by August 30, 2002. In the circumstances if an ex juris order were obtained the likelihood of having good service and the necessity for a defence to be filed arising before then would be remote at best. What Mr. Hattersley did was save Ms.Wong considerable expense and had pleadings closed in a timely and efficient manner. [ 31 ] Mr. Hattersley ceased to act for the Plaintiff shortly after the filing of the Statement of Defence. The solicitor-client relationship between Mr. Hattersley and Ms.

Wong and the corresponding duty of care on the part of Mr. Hattersley terminated at that point. [ 32 ] The discussion above clearly establishes that Ms. Wong’s plea is indeed factually hopeless. There is no basis on which her claim against her former lawyer can succeed, even if the pleadings were amended to include additional facts. [ 33 ] In this case the only conclusion I can make must be to find the action as against Mr. Hattersley frivolous. 3. Should a

Summary Judgment Against Ms. Wong be Granted? [ 34 ] Based on the above, I would find also grant

summary judgment. [ 35 ] The test for

summary judgment under new rule 7.3 remains the same as it was under the old Rules : Manufacturers Life Insurance Co. v. Executive Centre at Manulife Place Inc. , 2011 ABQB 189 at para. 11 ; BA Capital Inc. v. Stream Oil & Gas Ltd. , 2011 ABQB 91 (Master) at paras. 3-4 . [ 36 ] The basic test for a

summary judgment on issues of mixed law and fact is that it must be “plain and obvious” or “clear” or “beyond doubt” that the action cannot succeed and should be disposed of summarily: Murphy Oil Co. v. Predator Corp. , 2006 ABCA 69 , 55 Alta. L.R. (4 th ) 1 at para. 24 . [ 37 ] The Defendant Hattersley has presented evidence to demonstrate there is no guenuine issue for trial. Even allowing for the most liberal

interpretation of the pleadings and reading in an ostensible claim, Ms. Wong provides no evidence to establish her claim nor that damages of any kind have flowed. This is truly a circumstance where one can find it is beyond doubt that her action cannot succeed. V. Conclusion The Application is allowed. The claim against the Defendant Mr. Hattersley is struck with costs. Dated at the City of Edmonton, Alberta this 9th day of November, 2011.

L.A. Smart M.C.C.Q.B.A. Appearances: V.W. Wong Self-represented for the Respondent Mark E. Alexander Chomicki Baril Mah LLP for the Applicant Martin Hattersley