Yen v. Bozic, 2012 ABQB 718

Court of Queen ’ s Bench of Alberta Citation: Yen v. Bozic, 2012 ABQB 718 Date: 20121123 Docket: 1103 15998 Registry: Edmonton Between: Shiu-Wen Yen Petitioner - and - Zoran Bozic and John Woo Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice D.L. Shelley _______________________________________________________ I. Introduction [ 1 ] This matter relates to a dispute between Ms. Yen, a now former student at the University of Alberta ( “ University ” ) Faculty of Education ( “ Faculty ” ).

Events in her studies led, in succession, to her making various allegations against her instructors, various administrators, persons at the high school where she had been engaged in hands-on training, University officials, the government and its representatives, and last, two lawyers who had offered her assistance.

[ 2 ] Ms. Yen generally has claimed that she has been the target of racial discrimination and abuse, and that her complaints have not been fairly addressed by the internal processes within the University. She then turned to the courts. [ 3 ] To this point Ms. Yen has been unsuccessful in both forums. The tort action that she directed against government, university, and school defendants was struck. She then sued the two lawyers who she says gave her incorrect advice. Both lawyers had a limited involvement in Ms. Yen ’ s court action; Ms. Yen has always represented herself in court. Ms.

Yen was unsuccessful in her action against the two lawyers in the Provincial Court of Alberta. She now appeals that result. II. Background [ 4 ] While this decision relates to a relatively limited interaction between Mr. Bozic and Ms. Yen, I believe it helpful to provide a review of and timeline for Ms. Yen ’ s conflict with the University and its officials. [ 5 ] Ms. Yen enrolled in a two year after-degree program in the Department of Secondary Education of the Faculty in September 2006. Ms. Yen ’ s first semester went well.

Problems began in January 2007 when Yen alleged that she was bullied and harassed by her instructor, Mr. Ogilvie. Following the receipt of a grade of “ C ” in Mr. Ogilvie ’ s class, Ms. Yen contacted Mr. Ogilvie to discuss the grade. [ 6 ] In April 2007, Ms. Yen met with the University ’ s Student OmbudService to complain about Mr. Ogilvie ’ s conduct. On April 3, Ms. Yen also complained about Mr. Ogilvie to Dr. Nocente, the Associate Chair of the Department of Secondary Education. Dr. Nocente met with Mr. Ogilvie to discuss the grade. During April 2007, Ms. Yen, Dr. Nocente and Mr.

Ogilvie met on approximately four occasions to discuss Ms. Yen ’ s grade and her concerns. At their last meeting, on April 27, 2007, Dr. Nocente advised Ms. Yen that she did not accept Ms. Yen ’ s allegations against Mr. Ogilvie and had concluded that the “ C ” grade was a fair assessment. [ 7 ] On May 1, 2007, Ms. Yen reported Mr. Ogilvie and Dr. Nocente to Dr. Christianson, the Director of Student Support. Nothing resulted from Ms. Yen ’ s complaints. [ 8 ] In May 2007, Ms. Yen enrolled in a summer course taught by Dr. Paul. Ms. Yen was unhappy with Dr.

Paul ’ s instruction and the grade that she received. [ 9 ] In June 2007, Ms. Yen engaged Mr. Johnson, a student Ombudsperson, to help her with her grade appeals for Mr. Ogilvie ’ s and Dr. Paul ’ s classes. Ms. Yen and Mr. Johnson had a problematic working relationship. On June 18, 2007, Mr. Johnson laid charges with Campus Security Services that Ms. Yen had harassed him and used his private computer without permission. Mr. Purkess, an employee of Campus Security Services, investigated the complaint and agreed with Mr. Johnson. On June 26, 2007, Mr.

Belanger, Operations Manager at Campus Security Services, recommended that Ms. Yen be penalized for her conduct. [ 10 ] Ms. Yen complained about the charges to Ms. Sharpe, a senior University Ombudsperson. No action was taken. [ 11 ] Ms. Eerkes, a Discipline Officer at the University, reviewed Mr. Belanger ’ s recommendation and found the complaints to be valid. On July 24, 2007, Ms. Eerkes found that Ms. Yen had violated the Code of Student Conduct. Ms. Yen was placed on conduct probation for a period commencing July 24, 2007 and ending April 30, 2008. Ms. Yen appealed Ms.

Eerkes ’ s decision to the University Appeal Board. [ 12 ] On July 19, 2007, Ms. Yen submitted a letter of grade appeal for Mr. Ogilvie ’ s class to Dr. Foster, the Associate Dean of Undergraduate Services in the Faculty of Education. Dr. Foster denied the appeal on July 23, 2007. On August 14, 2007, Ms. Yen submitted her grade appeal letter for Dr. Paul ’ s class to Dr. Foster. Dr. Foster denied the appeal a week later.

[ 13 ] On August 14, 2007, Ms. Yen appealed the decision of Dr. Foster regarding Mr. Ogilvie to Dr. Spencer, the Faculty ’ s Academic Appeals Committee Chair. On September 12, 2007, Ms. Yen appealed Dr. Foster ’ s decision regarding Dr. Paul ’ s class to Dr. Spencer. [ 14 ] Ms. Yen enrolled in three classes in September 2007. The classes were taught by Mr. D ’ Elia. Ms. Yen complained about Mr. D ’ Elia to the Vice-President of the Faculty. No one responded to Ms. Yen ’ s letters. [ 15 ] In October and November 2007, Ms. Yen complained about the alleged bullying and harassment she had suffered to Dr.

Samarasekera, the President of the University. On November 1, 2007, Ms. Yen complained to Dr. Amrhein, Vice President Academic at the University. Dr. Samarasekera and Dr. Amrhein replied to the complaints by suggesting Ms. Yen engage in grade appeals and that she should access the Student OmbudService. [ 16 ] On October 19, 2007, Ms. Yen attended a hearing with the Faculty ’ s Academic Appeals Committee for her grade appeals from Mr. Ogilvie ’ s and Dr. Paul ’ s classes.

The hearing board denied these appeals, finding that there had been no failure by the department or any official to make a decision in a fair and equitable manner in light of the procedures and standards applicable in the case. Dr. Spencer formally denied the grade appeals on October 20, 2007. [ 17 ] After Dr. Spencer ’ s decision, Ms. Yen wrote a letter of complaint to Dr. Snart, Dean of the Faculty. Dr. Snart did not reply to the complaint. Ms. Yen also complained to Dr. Samarasekera and Dr. Connor, Vice-Provost and Dean of Students. Ms. Yen received no reply. [ 18 ] On November 6, 2007, Ms.

Yen ’ s appeal of the conduct probation arising from Mr. Johnson ’ s charges against her was held as a hearing de novo in front of the University Appeals Board. On November 18, 2007, in a written decision, the Board denied Ms. Yen ’ s appeal and affirmed Ms. Eerkes ’ s decision to place Ms. Yen on conduct probation. The Appeals Board extended the period of conduct probation to April 30, 2009. [ 19 ] Between October 29 and November 2, 2007, Ms. Yen was assigned to McNally High School for her Observation Week, a part of her student teaching responsibilities.

On November 15, 2007, McNally High School sent a Notification of Concern to the Faculty of Education regarding to Ms. Yen ’ s behavior during Observation Week. McNally High School alleged that Ms. Yen engaged in unprofessional conduct and that she was not suitable to complete a term of student teaching. [ 20 ] On November 15, 2007, Ms. Yen received an email from Ms. Miller, a Field Experience Associate. The email invited Ms. Yen to discuss her progress. Ms. Yen did not attend the meeting. [ 21 ] On November 16, 2007, Ms. Miller sent another email to Ms.

Yen advising that her teaching placement had been revoked and that she had been expelled from the course. The next week, Ms. Yen received an email from Mr. McPhee, the Assistant Dean (Field Experiences) of the Faculty, asking Ms. Yen to attend a meeting. Ms. Yen did not attend. [ 22 ] The expulsion from the teaching placement meant that Ms. Yen failed to complete her Introductory Professional Term in the fall of 2007. Without completing this, she was unable to take her Advanced Professional Term in 2008.

As a result, she was unable to complete her degree and has not attended the University since being removed from her teaching placement. [ 23 ] Ms. Yen was never formally expelled from the University. [ 24 ] On November 28, 2007, Ms. Yen met with a volunteer lawyer from the Edmonton Community Legal Centre [the “ ECLC ” ]. After this discussion, Ms. Yen decided to file a complaint with the Alberta Human Rights Commission.

[ 25 ] On January 16, 2008, Ms. Yen filed a complaint against Mr. Ogilvie at the Alberta Human Rights Commission for using low grades and absurd comments to harass her. [ 26 ] In January or February 2008, Ms. Yen met with Mr. John Woo, a volunteer lawyer with the ASSIST program at the Chinese Community Center, to discuss the problems she encountered at the University and her resulting legal options. [ 27 ] On February 13, 2008, Mr. Bozic met with Ms. Yen. The purpose of the meeting was for Mr. Bozic to advise Ms. Yen and send a letter to Legal Aid on her behalf explaining her situation. Mr. Bozic and Ms.

Yen also discussed Ms. Yen ’ s possible causes of action against the University. A lawsuit would ultimately emerge from these discussions ( “ University Action ” ). [ 28 ] On March 14, 2008, Mr. Bozic sent a letter to the Legal Aid Society outlining Ms. Yen ’ s possible claims. [ 29 ] In 2008, Mr. Woo filed eight additional complaints by Ms. Yen against various employees of the University. [ 30 ] Legal Aid denied Ms. Yen ’ s request for funding. Ms. Yen attempted to find legal assistance but could not find a lawyer to help her. In January 2009, Ms. Yen met with Mr.

Bozic to discuss the legal options available to her. Ms. Yen drafted a preliminary Statement of Claim and provided it to Mr. Bozic. Mr. Bozic agreed to review and revise Ms. Yen ’ s Statement of Claim. [ 31 ] The Statement of Claim for the University Action, naming 38 defendants including the University, was filed on February 20, 2009. [ 32 ] On March 16, 2010, the Defendants brought an application to have the Statement of Claim struck on the basis that it did not disclose a cause of action.

In her written reasons dated June 4, 2010, Justice Browne struck the University Action for not disclosing a cause of action and awarded $9,500.00 in costs against Ms. Yen. This decision is reported as Yen v. Alberta (Ministry of Advanced Education and Technology) , 2010 ABQB 380 , 495 A.R. 292 . Ms. Yen did not appeal this decision. [ 33 ] On August 27, 2010, Ms. Yen filed a complaint against Mr. Bozic with the Law Society of Alberta. She also filed claims with the Alberta Lawyers Association against Mr. Bozic and Mr. Woo in August 2010. [ 34 ] On September 10, 2010, Ms. Yen filed a lawsuit against Mr.

Bozic and Mr. Woo, seeking to recover the cost award and the amount paid to Mr. Bozic for legal services. She alleged that Mr. Bozic had injured her in three ways, that he: 1. had failed to inform Ms.

Yen that her only legal mechanism to challenge the various defendants of the University Action was to first exhaust her remedies provided in the University ’ s internal procedures, and then conduct a judicial review of any negative result, 2. had erred in adding the Province and Education Minister Horner as defendants to the University Action, and 3. did not explain to her the concept and operation of court costs. [ 35 ] The Honourable Judge K. Hope summarily dismissed the action against Mr. Woo on July 20, 2011. This decision was not appealed. [ 36 ] The action against Mr.

Bozic proceeded to trial, and was heard on August 30, 2011. The Honourable Judge D.G. Ingram dismissed the entirety of Ms. Yen ’ s claim in written reasons dated September 7, 2011: Yen v. Bozic , 2011 ABPC 277 . The present appeal is Ms. Yen ’ s challenge to that result.

III. The Trial Decision [37] Much of the previous narrative is reflected in the Provincial Court trial decision and is not in dispute. Judge Ingram made anumber of findings of fact: 1. Mr. Bozic’s initial interaction with Ms. Yen in February 2008 was to investigate the possibility that she may obtain funding for acivil action via Legal Aid. By this point Ms. Yen had discovered what she considered an analogous civil action, Young v. Bella, 2006SCC 3, [2006] 1 S.C.R. 108, that had led to an award in excess of $800,000.00 (paras. 6-7). 2. Mr. Bozic advised that Ms. Yen continue University appeal processes. Ms.

Yen rejected that option and instead preferred alawsuit for a monetary award (paras. 8, 17-18). 3. Mr. Bozic prepared a letter that proposed Legal Aid fund Ms. Yen’s litigation, and that there were three possible basis for a civilaction: breach of contract, tort (intentional infliction of emotional suffering), and abuse of authority (paras. 9, 17). Legal Aid rejected thefunding request (para. 10). 4. Ms. Yen decided to pursue a civil action, and created an initial University Action statement of claim document. Mr. Bozic wasretained and paid $840.00 to convert Ms.

Yen’s draft into a form suitable for filing (para. 10). Ms. Yen was satisfied with Mr. Bozic’sefforts and the University Action statement of claim (para. 12). 5. Ms. Yen telephoned Mr. Bozic in 2010 after she had received an offer from the lawyer representing the Province to discontinuethe action against that party without costs. Mr. Bozic advised her to do so given the limited scope of liability of that party (para. 12). 6. Ms. Yen was told by Mr. Bozic that he believed she could advance a civil damages claim, and that was the only relief that Ms.Yen sought (para. 13). 7. Ms.

Yen claimed to not understand that an unsuccessful lawsuit could result in court costs awarded against her, but lateracknowledged she knew that fact, but thought that only applied where a matter was resolved at trial (para. 14). Mr. Bozic had advised heron this risk (para. 18). 8. To date Ms. Yen had paid $2,500.00 of the $9,500.00 costs award in the University Action (para. 16). 9. Mr. Bozic followed Ms. Yen’s instructions to the best of his ability (para. 18). 10. Mr. Bozic did not tell Ms. Yen that the Alberta Court of Queen’s Bench had no jurisdiction over her civil claims. 11. Mr.

Bozic only acted on a limited retainer, first to assist in obtaining Legal Aid funding, then to help prepare Ms. Yen’sstatement of claim for the University Action. [38] The trial judge concluded that Ms. Yen’s allegation was that Mr. Bozic had failed to meet the standard of care of a lawyer.That standard was set in Millican v. Tiffin Holdings Ltd., (SCC), [1967] S.C.R. 183 and Spence v. Bell 1982 ABCA282, (1982) 22 Alta. L.R. (2d) 193, and is limited to the scope under which a lawyer is retained by a client: Watts v. Wakerich, 2002ABPC 498 at para. 54.

[ 39 ] Judge Ingram concluded this test meant that Mr. Bozic would not necessarily be negligent if he had committed “ ... [a]n error of judgment or ignorance of some particular part of the law ... ” : para. 23. In this instance, the letter to Legal Aid and the statement of claim met the required standard: para. 24. The advice that Ms. Yen might face costs if she lost at trial would presumably also apply to another scenario where Ms. Yen was unsuccessful: para. 25. [ 40 ] The trial judge concluded that Mr. Bozic had honestly believed that there was some prospect of success for Ms.

Yen in the University Action, and disagreed with Justice Browne ’ s decision (paras. 26-27). Though the University Action had ended with a different result, Judge Ingram concluded at para. 27, about the opinion expressed by Mr. Bozic: “ ... that a reasonably competent and prudent solicitor could hold the opinion the claims had some chance of success notwithstanding the decision of Madam Justice Browne. ” Similarly, he concluded that the suggestion to add the government defendants was reasonable (para. 28). IV. Grounds for Appeal [ 41 ] Ms.

Yen advances a number of grounds on which she argues Judge Ingram was incorrect in dismissing her action against Mr. Bozic. I have grouped and phrased these in my own words, as certain arguments seem related or overlap. I do not believe that Ms. Yen raises any allegations of an error of law. Her issues seem to relate to questions of fact or mixed fact and law: [ 42 ] Ms. Yen argues that Judge Ingram was wrong when he came to certain findings of fact: 1. that Ms. Yen had been informed by Mr. Bozic:

a) of her right to pursue further remedies from the University, and

b) the potential that she may be directed to pay costs in the University Action, if she was unsuccessful, and 2. that Ms. Yen had already identified the Young v. Bella case on allegedly analogous facts, as Ms. Yen did not have an ability to research caselaw at the relevant times; 3. that Mr. Bozic:

a) never explained why the government defendants were added as parties,

b) was retained to only address limited issues, and

c) was honest in his dealings with Ms. Yen and in his court testimony. [ 43 ] Ms. Yen also alleges several issues of mixed fact and law, that the Judge Ingram had incorrectly: 1. weighed the documentary evidence, preferring Mr. Bozic ’ s notes over her own, 2. assessed the standard of care for a lawyer such as Mr. Bozic in the relevant circumstances, and

3. found that Mr. Bozic had not breached his standard of care when he did not conclude that the Alberta Court of Queen’s had nojurisdiction to hear the University Action. [44] Mr. Bozic argues that the trial judge made no errors of law, erroneous findings of fact, nor misapplied those facts to the law. V. The Standard of Review [45] Mr. Bozic refers to the recent restatement by Justice Moen in Kieller v.

Sentinel Self-Storage Corp., 2008 ABQB 783 atpara. 39, 463 A.R. 99, of the standard of review for an Alberta Court of Queen’s Bench justice on an appeal from a trial at the ProvincialCourt of Alberta: The standard of review to be applied by a civil appeal court is correctness in relation to questions of law (Housen v. Nikolaisen, 2002SCC 33, [2002] 2 S.C.R. 235; R. v. Sehn, 2005 ABCA 203, 371 A.R. 14) and palpable and overriding error in terms of findings of fact(Stein v. The Ship "Kathy K", (SCC), [1976] 2 S.C.R. 802; 527353 Alberta Ltd. v.

Stedelbauer Chevrolet Oldsmobile(1975) Ltd. (2001), 2001 ABQB 909 , 302 A.R. 316 at 321 (Q.B.)) and factual inferences (Housenat para. 25). A palpable andoverriding error occurs where the trial judge makes a manifest error, ignores conclusive or relevant evidence, misunderstands theevidence or draws erroneous conclusions from it (Toneguzzo-Novell (Guardian ad litem of) v. Burnaby Hospital, (SCC), [1994] 1 S.C.R. 114 at para. 13, 110 D.L.R. (4th) 289, cited in MacCabe v. Westlock Roman Catholic Separate School District,2001 ABCA 257 at para. 21, 293 A.R. 41).

In terms of findings of mixed fact and law where the issue is the application of a legalstandard to a set of facts, the standard of review is palpable and overriding error. However, if the trial judge made an extricable error inprinciple with respect to the characterization of the standard or its application, the error may amount to an error of law, which is subjectto the standard of correctness: Housen at paras. 26-36. [46] I agree this is an accurate statement of the law. VI. Analysis [47] I will first address the trial judge’s findings of fact.

These conclusions are owed deference from an appellate court as aconsequence of the standard of review. A. Was it Ms. Yen’s Intention to Conduct a Civil Action for Damages? [48] Many of Ms. Yen’s points of dispute revolve on her contention that she would not have chosen to pursue a civil action againstthe defendants in the University Action if she had known she had a different alternative that would not involve the risk of court costs,that it would have been illogical for her to do so.

She says she chose to pursue the University Action because she was not told by Mr.Bozic that there were alternatives (ie. exhausting her in-university remedies and then seeking judicial review) and that a civil actionrisked her being charged court costs. She also notes it is illogical that she would agree to sue additional parties as that too would merelyincrease her potential cost liability. [49] On that basis Ms. Yen argues that Judge Ingram could not have concluded that she had been properly informed by Mr.

Bozicbut then still preferred a civil litigation approach with the intention of obtaining a large damage award. Ms. Yen argues that JudgeIngram had no factual basis to believe that she had already become aware of the Young v. Bella case, so that means Ms. Yen would nothave known (or allegedly believed) that an analogous action would result in her obtaining a similar award. [50] No one denied the first contact between Mr. Bozic and Ms. Yen was in February of 2008. Ms. Yen entered as evidence ademand letter, dated November 30, 2007, that was prepared by an ECLC lawyer. Ms.

Yen explained that the date on that document isspurious, and she did not receive the letter until much later, well after she had first met and discussed her dispute and the Legal Aidapplication with Mr. Bozic.

[ 51 ] I conclude that Judge Ingram had a reasonable basis to conclude that the November 30, 2007 letter was received by Ms. Yen around the time of its date. It is entirely plausible, if not likely, that during her interview with the ECLC lawyer the Young v. Bella case would have been identified and discussed. It seems quite unlikely that Ms. Yen, who is if nothing else a determined person, would have simply let the letter languish. I think it is more likely she would have tracked it down. In that sense, I do not think that Judge Ingram engaged in palpable and overriding error when he preferred Mr.

Bozic ’ s narrative over that of Ms. Yen on this question. It certainly makes Ms. Yen ’ s argument concerning the point at which she became acquainted with the “ CanLII ” website irrelevant. [ 52 ] That conclusion compromises the remainder of Ms. Yen ’ s narrative and its logic. So do her documents. Her April 18, 2008 letter to Legal Aid that appealed denial of funding includes the following passage: If I could sue the University of Alberta without using a penny, I would opt to do it. However, I know that the Queen ’ s Bench is the way that best suits my case. Mr.

Bozic and other lawyers already provided me clear information regarding how I should sue the University of Alberta. Legal Aid partially interpreted what Mr. Bozic stated in his letter. He never said that I should just pursue Human Rights proceeding. In my interview with him, I told him very clearly that I wanted to sue the University of Alberta in Queen ’ s Bench. He did research, and provided his opinion about suing the University of Alberta on abuse of power, breach of contract and etc. In the part of “ Conclusion and Recommendations, ” Mr.

Bozic stated very clearly that I can sue the University of Alberta for Breach of Contract. [ 53 ] In her January 23, 2009 email to Mr. Bozic, Ms. Yen states: I changed some details in the damage part. I ’ d like to ask for $500,000.00 annualy form mental and emotional damage starting from 2007 to the end of the trial. The damage these people caused me is immense. They destroyed my plan and some of my family ’ s plans. [Sic.] [ 54 ] These documents appear to provide a clear illustration of Ms. Yen ’ s objectives at the time. This is in addition to Mr. Bozic ’ s testimony that Ms.

Yen had become focussed on a cash award from a civil action, rather than an administrative law remedy. I find that together these provide an evidentiary foundation for Judge Ingram ’ s conclusions as to Ms. Yen ’ s objectives, and that she had no further interest in pursuing a remedy within the University ’ s internal procedures and appeals. B. Court Costs in the University Action [ 55 ] This conclusion leads to the question of court costs. Judge Ingram concluded that Ms. Yen had been briefed on the risk of court costs. Ms.

Yen acknowledged that much, but then claimed she only knew that was a potential post-trial result. I think that is a very nuanced distinction and that the trial judge could fairly conclude that Ms. Yen was aware that there could be deleterious financial consequences to her if the University Action was unsuccessful. If risk minimization had been Ms. Yen ’ s concern, then she presumably would have been more cautious in her conduct in the University Action. The correspondence I have quoted above is, I think, more representative of Ms.

Yen ’ s perspective at the time, what Judge Ingram at para. 17 described in this way: ... The plaintiff was already pursuing a complaint to the Human Rights Commission and when she discovered there was a possible action for substantial damages she turned her attention in that direction. ... C. The Government Defendants [ 56 ] Similarly, Ms. Yen ’ s own correspondence with Mr. Bozic clearly indicates her approach was ‘ the more the merrier ’ . Adding the government defendants is consistent with Ms. Yen ’ s litigation strategy.

[ 57 ] The trial judge ’ s conclusion that Ms. Yen had been informed of the rationale for adding the government defendants and agreed to that step is reasonable, and certainly consistent with Ms. Yen ’ s pattern of behaviour. In the alternative, I do not believe Ms. Yen would have been particularly concerned even if she had not fully understood the legal principles that arguably led to the government parties ’ potential involvement as defendants. D. Issues of Mixed Fact and Law [ 58 ] That leaves the issues of mixed fact and law. The first relates to the weight Ms. Yen alleges was incorrectly placed on Mr.

Bozic ’ s notes but not her own. The degree to which a trial judge considers evidence probative and reliable is generally due discretion by an appellate court. I do not see any reason why Mr. Bozic ’ s notes would have reduced value in this trial, given that they are consistent with Mr.

Bozic ’ s narrative and the factual background I have previously confirmed. [ 59 ] The final issues are interrelated: whether the trial judge engaged in a palpable and overriding error when he concluded: 1. that prior to the decision of Justice Browne to strike the University Action there was a basis to believe that the Alberta Court of Queen ’ s Bench may have jurisdiction to hear the University Action, and 2. if the Alberta Court of Queen ’ s Bench did not have jurisdiction to hear the University Action, then Mr. Bozic would not have been negligent in having given his advice to Ms.

Yen on the viability of that action. [ 60 ] Ms. Yen ’ s argument, it seems, may be reduced to the following. Mr. Bozic knew the University Action was flawed from the start. Mr. Bozic lied to Ms. Yen. Therefore, he should be liable. She expressed her argument this way at page 56 of her written brief: He knew I was a poor student, the University was an independent body, and the Court of Queen ’ s Bench had no jurisdiction over issues of academic nature, but he hid this information from me and deprived me of the right to choose what I should do and the right to avoid being further harmed.

He put me in a risky situation because it was impossible for me to defend myself. [ 61 ] Judge Ingram came to a different conclusion, and I believe he did not commit a palpable and overriding error in doing so. This may not be a comfort to Ms. Yen, but while many things in law are established, much of the remainder is up for debate. Sometimes the law changes, and old principles are discarded and new approaches arise. [ 62 ] If Ms. Yen had misgivings about the result in Yen v.

Alberta (Ministry of Advanced Education and Technology) then she could have challenged that result with an appeal to the Alberta Court of Appeal. She did not take that opportunity. [ 63 ] This is not to say Ms. Yen ’ s argument is impossible, but that she has not provided the evidence to prove to Judge Ingram (and myself) that Mr. Bozic has committed a grave and obvious error when he provided the advice that he did in the Legal Aid application. For example, Ms. Yen might have identified binding appellate authority that expressly addressed this issue.

Justice Browne did not simply identify an obvious and well established rule that precluded Ms. Yen ’ s claim and proved Mr. Bozic ’ s analysis incorrect. Instead, Justice Browne conducted a careful review and analysis of trial caselaw and applied principles from appellate courts. In other words, there was plainly an analysis necessary. That means, contrary to what Ms. Yen has suggested, Mr. Bozic did not know the University Action was doomed to fail.

The trial judge committed no palpable and overriding error when he came to that conclusion. [ 64 ] Last, there is the question of whether Judge Ingram erred when he evaluated whether Mr. Bozic had breached his duty of care when Mr. Bozic advised that the University Action had some possibility of success. The relevant question is whether Mr. Bozic met this standard: The standard of care and skill which can be demanded from a lawyer is that of a reasonably competent and diligent solicitor. It is not

enough to prove that the lawyer has made an error of judgment or shown ignorance of some particular part of the law; it must be shown that the error or ignorance was such that an ordinarily competent lawyer would not have made or shown it. [ 65 ] The trial judge concluded that, even though Mr. Bozic was wrong, his error was an error that could be made by an ordinarily competent lawyer. I not only conclude that result was not a palpable and overriding error, but agree with Judge Ingram ’ s findings on this point.

I note that in many legal disputes the court will evaluate and reject an argument on the meaning of a law, a case, or the scope of a legal principle. An unsuccessful in-court argument does not equate to negligence. [ 66 ] I believe that addresses all of Ms. Yen ’ s bases for her appeal, which I therefore deny. VII. Conclusion and Costs [ 67 ] Ms. Yen ’ s appeal is denied. Mr. Bozic is successful, and therefore costs are awarded against Ms. Yen. Heard on the 15 th day of June, 2012. Dated at the City of Calgary, Alberta this 20 th day of November, 2012. D.L. Shelley J.C.Q.B.A.

Appearances: Shiu-Wen Yen Self-represented Plaintiff Mr. D. Hopfner for the Defendant Zoran Bozic