Lyons v. Baldwin, 2012 ABQB 156

Court of Queen ’ s Bench of Alberta Citation: Lyons v. Baldwin, 2012 ABQB 156 Date: 20120302 Docket: 1004 00404 Registry: Grande Prairie Between: Christina Lyons Plaintiff - and - Alvin William Baldwin and Derek Gavin Van Tassell Defendants _______________________________________________________ Memorandum of Decision of L. A. Smart, Master in Chambers _______________________________________________________ Background [ 1 ] The Defendant Van Tassell applies for

summary dismissal of this action as against him. The following are the relevant paragraphs from the Amended Statement of Claim: 5. At all material times hereto, the Defendant Van Tassell was retained by the Plaintiff Lyons to act as her legal counsel in relation to the removal of a lien registered by the Defendant Baldwin and in all matters incidental hereto. 6. On July 28, 2008, an Order was granted by the Honourable Justice Wilkins of the Court of Queen’s Bench of Alberta in action number 0806 00213 (the “Order”).

7. The Order provided that the Defendant Baldwin would be permitted to place a writ of enforcement against the Lands (the “Writ”). 8. It was a term of the Order that the Writ would be unenforceable as against the interest of the Plaintiff Lyons in the Land, until the Plaintiff chose to sell or otherwise dispose of the Lands. 10. The Defendant Van Tassell, who was acting as legal counsel for the Plaintiff Lyons, failed or neglected to ensure that the Form of Order, provided to him by counsel for the Defendant Baldwin, properly reflected the actual terms of the Order granted by the Honourable Justice Wilkins. 11. Particulars of the Defendant Van Tassell’s negligence include: (

a) failing to properly review, or failing to review at all, the Form of Order provided to him by counsel for the Defendant Baldwin. (

b) failing to ensure that the legal interests of the Plaintiff Lyons would be protected; and (

c) such other and further particulars of negligence which will be proven at the trial of this matter. [ 2 ] The primary allegation against the Defendant Van Tassell is set out in paragraphs 10 and 11(a), that is, he failed to ensure that the Form of Order prepared in relation to an application before Justice Wilkins on July 28, 2008 properly reflected his decision. Notably, it is alleged that it was a term of the Order that the Writ restored to the title would be unenforceable as against the interest of Lyons in the Lands, until she chose to sell or otherwise dispose of the Lands.

The Affidavit filed by Van Tassell attaches a copy of the transcript of the court application before Justice Wilkins, a copy of the Order and includes a statement that the Order reflects the Order granted. Discussion [ 3 ] Rule 7.3 of the Alberta Rules of Court sets out the test for

summary judgment:

(1) A party may apply to the Court for

summary judgment in respect of all or part of the claim on one or more of the following grounds:

a) there is no defence to a claim or part of it;

b) there is no merit to a claim or part of it;

c) the only real issue is the amount to be awarded.

(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) have been met or by other evidence to the effect that the grounds have been met.

(3) If the application is successful the Court may, with respect to all or part of a claim, and whether or not the claim is for a single and undivided debt, do one or more of the following:

a) dismiss one or more claims in the action or give judgment for or in respect of all or part of the claim or for a lesser amount;

b) if the only real issue to be tried is the amount of the award determined the amount or refer the amount for determination by a referee;

c) if judgment is given for part of a claim, refer the balance of the claim to trial or for determination by a referee, as the circumstances require. [ 4 ] The Rule operates in the same manner and follows the same legal principles as Rule 159 of the immediately previous version of the Rules: Kwan v. Superfly Inc. , 2011 ABQB 343 .

Summary judgment may be granted to a Defendant if the court is satisfied there is no merit to the claim. The test is also expressed as: the action is bound to fail; the claim does not raise a genuine issue for trial; or that the claim has no reasonable prospect of success. [ 5 ] Based on the Van Tassell Affidavit, I am asked to conclude that the statements made by Justice Wilkins were merely obiter. Leading up to the application before Justice Wilkins there was a lengthy history presenting a complex factual and legal matrix. The subject Lands were owned solely by Lyons ’ husband (Steve).

Steve went bankrupt and the trustee determined there was no nonexempt equity in the Lands. A fire destroyed the house on the Lands. Steve had a fire insurance policy. The co-defendant Baldwin had a writ registered against the Lands. Baldwin ’ s claim was found to survive bankruptcy. Title to the Lands was transferred by Steve to Lyons. There was an agreement among Baldwin, Steve, the insurer and Lyons to permit insurance proceeds to be advanced for construction of a house on the Lands. Lyons took steps under the Land Titles Act which resulted in Baldwin ’ s writ lapsing.

A house was built on the Lands using a combination of insurance proceeds from Steve ’ s policy of insurance and funds advanced under a mortgage of the Lands granted by Lyons. Justice Wilkins restored the writ on title by the July 28, 2008 Order. Baldwin took proceedings on his writ allegedly obliging Lyons to pay him the amount of the judgment against Steve. [ 6 ] It may well be that Justice Wilkins was merely making a general observation as to the legal or practical affect of re- registration of the writ.

Or, given the unique set of circumstances, he may have intended to impose a limitation on the rights of the writ holder. The former would be obiter, the latter not. Recognizing, with the greatest of respect to Justice Wilkins, that his statement was an incorrect or at least incomplete assessment of the implications of restoring the writ, one might be drawn to the latter conclusion. Furthermore, even if he did not intend to impose a limitation, it strikes me that one would want to make further inquiry of Justice Wilkins as he may have granted the relief based on a mistaken understanding of the law.

Finally, it may be that Justice Wilkins simply didn ’ t canvas all of the implications of his Order. [ 7 ] There is uncontradicted evidence from Lyons that the

interpretation and affect of those comments by Justice Wilkins were expressly brought by Lyons to Van Tassell ’ s attention. She alleges in her Affidavit that Van Tassell told her “ he (Baldwin) can ’ t sell your house. ” The significance to Lyons in that regard was abundantly clear. Regardless, the Order was approved by Van Tassell without any discussion with Lyons in that regard and ostensibly on the basis that Van Tassell concluded that the comments were not part of the substantive Order.

According to Lyons, Van Tassell never provided her with a copy of the Order and when she obtained the copy, the appeal period had expired. Conclusion [ 8 ] Based on the foregoing facts and circumstances I ’ m unable to conclude that there is no merit to Lyons ’ claim and accordingly the application for

summary dismissal of the action is dismissed. Costs of the application shall be payable by Van Tassell in any event of the cause. [ 9 ] Parenthetically, during the course of the application there was considerable discussion surrounding the pleadings and evidence alleging other misconduct or negligence, for example, in relation to claims by Lyons to insurance proceeds for personal property in the bankruptcy estate of Steve.

I agree with Van Tassell ’ s counsel that the current pleadings are inadequate in that although such allegations may fall under the broad and general pleadings they lack sufficient particularity for Van Tassell to properly defend such matters and provide a proper basis for questioning. There was no application before me to amend the Amended Statement of Claim but I caution Lyons that failure to apply for an amendment to particularize allegations before the parties proceed to questioning may result in cost consequences should there be unnecessary duplication or delay.

Dated at the City of Edmonton, Alberta this 2nd day of March, 2012.

L. A. Smart M.C.C.Q.B.A. Appearances: Pierre G. Asselin Durocher Simpson Koehi Erler for the Plaintiff V. Cox Chatwin LLP for the Defendant, Derek Gavin Van Tassell