Fletcher v Davidson & Williams LLP, 2015 ABQB 783

Court of Queen’s Bench of Alberta Citation: Fletcher v Davidson & Williams LLP, 2015 ABQB 783 Date: 20151209 Docket: 1406 00800 Registry: Lethbridge Between: Sharon Joy Lydia Fletcher Appellant - and - Davidson & Williams LLP, Herbert R. Beswick, QC, Soby Boyden Lenz LLP, Robert V.T. Boyden, QC, Elaine L. Lenz, QC, Moe Hannah LLP, Douglas Moe, QC, Foster LLP, Ronald S. Foster, QC, Lianne Cihlar Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice J.H. Langston _______________________________________________________

Appeal from the Decision by AR Robertson, QC, Master in Chambers Filed and dated the 15 th day of April, 2015 ( 2015 ABQB 244 ) Introduction [ 1 ] In May of 2007, Sharon Fletcher and her husband separated, and a very tumultuous period of her life began. [ 2 ] Ms. Fletcher saw a lawyer with respect to her matrimonial difficulties in June of 2007. He commenced a lawsuit on her behalf in May of 2008, and for the next four and a half years, Ms. Fletcher was embroiled in divorce proceedings.

During that time she also lost her College and Association of Registered Nurses of Alberta certification, and she was forced to leave the matrimonial home, a situation she found very traumatic. She changed law firms twice, and was engaged with several lawyers. [ 3 ] In August of 2012, she agreed to the appointment of a trustee to oversee all aspects, including potential settlement, of the matrimonial property and support action. Douglas Moe, a Calgary lawyer, agreed to act as the trustee. In October of 2012, with Ms. Fletcher’s consent, he settled the action after a JDR at which Ms.

Fletcher was present and had legal counsel. [ 4 ] The settlement did not resolve Ms. Fletcher’s angst. In early November, perhaps even sooner, she questioned the settlement. She expressed her concerns to Mr. Moe. He confirmed to her that he believed the settlement was a good one, and stated, “My wish for you is that you don’t do yourself further disservice by burning up your life energy and what resources you have pursuing this further.” [ 5 ] Ms. Fletcher did not take his advice.

On October 7, 2014, acting for herself, she filed a statement of claim suing all the lawyers and law firms that had acted for her in the matrimonial proceedings. She also sued Mr. Moe and his law firm. [ 6 ] Ms. Fletcher cannot put the end of her marriage behind her and move on with her life. Legal Issues [ 7 ] Three of the lawyers and two of the law firms which acted for Ms. Fletcher, and Mr. Moe and his law firm, brought an application for

summary dismissal of Ms. Fletcher’s claim. They argued that Ms. Fletcher had demonstrated no reasonable prospect of success on any cause of action against any of them, and in some cases, also argued that her claim was filed beyond the two-year period set out in the Limitations Act , RSA 2000, c L-12. Master Robertson, QC agreed that the claims had no prospect of success and dismissed them. He awarded all of the successful defendants costs. Mr. Moe and his law firm sought double costs because four and a half months before the hearing, they had offered to take no costs if Ms.

Fletcher discontinued the action against them. She refused. Master Robertson refused to award double costs, and also refused to award travel disbursements of $280.22 for Mr. Moe’s lawyer to travel from Calgary. [ 8 ] Ms. Fletcher appealed the dismissal of her claim against the successful defendants. Mr. Moe and his law firm appealed the denial of their claimed costs. [ 9 ] The issues before this Court are therefore:

A) Should Master Robertson’s decision to dismiss the claims against the seven successful defendants be upheld?

B) Are Douglas Moe and Moe Hannah LLP entitled to double costs, and to disbursements for their Calgary counsel’s travel costs to Lethbridge? Analysis

A) Should Master Robertson’s decision to dismiss the claims against the seven successful defendants be upheld? [ 10 ] The defendant Herbert Beswick of the defendant law firm Davidson & Williams LLP acted for Ms. Fletcher from June of 2007 to June 2010. The defendant Robert Boyden of the defendant law firm Soby Boyden Lenz LLP acted for Ms. Fletcher from June of 2010 to March of 2011. He became ill, and the defendant Elaine Lenz of the same law firm assumed conduct of Ms. Fletcher’s file. She acted until January of 2012, the year the law firm Foster LLP took over. That law firm and the lawyers from it which Ms.

Fletcher sued are not involved in these applications. [ 11 ] Ms. Fletcher filed her statement of claim in October of 2014, which is about two years and ten months since anyone from Soby Boyden Lenz LLP acted for her, and is almost three and a half years since Mr. Beswick acted for her. There were times after June of 2010 that Mr. Beswick saw Ms. Fletcher, but Master Robertson carefully analyzed those meetings and concluded that they were mainly for Ms. Fletcher’s convenience in signing documents because Mr. Beswick and Ms.

Fletcher were both in Lethbridge, while all her other legal counsel and her trustee were in Calgary. There is no flaw in Master Robertson’s reasoning.

[ 12 ] Ms. Fletcher says that she did not know she had a claim against any of these defendants until she received her file from Foster LLP in February of 2013. The problem with her argument is that her statement of claim, none of her affidavits, nor the questioning of her by Master Robertson nor by this Court at this appeal revealed anything she learned from that file which caused her to know she had a claim. She also says that in August 2014 she met with a financial professional and gained an understanding of one of the JDR settlement options which she did not have at the time of the JDR.

But there is no suggestion that having this information sooner would have caused her to act differently at the JDR or that it would have made any difference to the settlement. [ 13 ] Master Robertson looked at all aspects of the limitations argument and found the claims against these five defendants were out of time. Looking at his reasons and the record that was before him, I see no error in this reasoning. [ 14 ] On appeal, Ms. Fletcher quoted s4 of the Limitations Act , which states that the limitation period is suspended during any time the defendant fraudulently conceals the injury.

Yet again, she produces no evidence that anything was concealed from her. [ 15 ] Like Master Robertson, I conclude that the claims against Herbert Beswick, Davidson & Williams LLP, Robert Boyden, Elaine Lenz and Soby Boyden Lenz LLP were filed out of time. [ 16 ] Leaving aside the limitations issue, Ms. Fletcher claims that all defendants who brought

summary judgment applications caused her undue hardship, were negligent, and failed to act with due diligence, all of which caused her loss and damages. Neither her statement of claim nor her brief before this court differentiate between the legal bases on which liability could be found against the lawyers who acted on her behalf and the actions of Mr. Moe, who was acting as her trustee. It does not appear that she understands that there is a difference. [ 17 ] Master Robertson did, and accordingly he reviewed the causes of action against Mr. Beswick, Mr. Boyden, Ms.

Lenz and their law firms separately from those against Mr. Moe and his law firm. In every case, he found that Ms. Fletcher had shown no reasonable prospect of success. Counsel acting for Mr. Boyden, Ms. Lenz and Soby Boyden Lenz LLP argued before this Court that Master Robertson “made no errors in granting these defendants

summary judgment and that is clear and apparent from the record before the Court”. I agree. In the case of all seven defendants, Master Robertson’s analysis was detailed and careful. It is clear from his questioning of Ms. Fletcher that he gave her every opportunity to substantiate her liability claims. I find no error in his conclusion that she failed to do so, as against all seven defendants who sought

summary dismissal. [ 18 ] In this Court, Ms. Fletcher repeatedly complains that she has suffered undue hardship because of the long litigation. There is no doubt that her matrimonial proceedings were expensive and lengthy. But what she does not understand is that this does not automatically mean that the lawyers were negligent. The particular circumstances of her litigation were that Ms. Fletcher and her husband had a long-term marriage with significant assets. The value of those assets was not easily quantifiable. And, on at least one occasion, Ms.

Fletcher lost an application and decided to appeal to the Court of Appeal; that was her decision. These factors easily explain why the litigation was long and costly. [ 19 ] Ms. Fletcher takes issue with the total she paid in legal fees. If she was unhappy about the amount her litigation was costing there were steps she could have taken during the litigation and upon receiving her lawyer’s bills. But instead, she chose to borrow money from her father to pay those bills, and continue the litigation.

Her dissatisfaction with the amount of her legal fees does not, in any way, create an action against her lawyers. [ 20 ] Ms. Fletcher quotes sections from the Alberta Bill of Rights , Contributory Negligence Act , Dependant Adults Act , and Limitations Act , claiming they support her claim. But she has not alleged any particular acts by any of the defendants which dovetail with these sections and thereby justify her claim.

Similarly, she repeatedly states that as a result of the settlement of her matrimonial action she suffered “personal injury (loss), property damage (loss) and financial losses”, and that “these were reasonably foreseeable by the respondents, as experienced law experts”. This is a conclusion. Ms. Fletcher does not win by arguing a conclusion. She must produce the factual evidence to show there is a reasonable prospect a judge could reach this conclusion. She has produced nothing to prove it. That is why the Master found, and I agree, that there is no reasonable prospect that her claim will succeed. [ 21 ] Ms.

Fletcher’s decision to bring an action in negligence against these defendants, and then give no facts to justify it other than her own distress, the length of the proceeding, and the amount of legal fees she has paid, borders on vexatiousness or frivolity. [ 22 ] I have no doubt that Ms. Fletcher has experienced a great deal of anxiety, stress, and sadness over the break-up of her marriage. The evidence she has produced shows what she calls the “hardship” she has experienced.

But she has produced no evidence that her emotional turmoil, her current lifestyle or this “hardship” is the fault of the lawyers who acted for her. She has also produced no evidence that the settlement reached was unfair. Ms. Fletcher must stop focussing on her marriage and its break-up, and move on with her life. She is wasting away her life in the courts on this futile action. [ 23 ] Ms. Fletcher’s appeal is dismissed.

B) Are Douglas Moe and Moe Hannah LLP entitled to double costs, and to disbursements for their Calgary counsel’s travel costs to Lethbridge? [ 24 ] After Master Robertson issued his written decision, there was another court application to settle the terms of the order arising from his decision, and to determine the amount of costs payable to the successful parties. At that time, Master Robertson was advised that prior to the masters hearing, Moe Hannah LLP and Douglas Moe served a formal offer to settle on Ms. Fletcher. The offer was to dismiss Ms. Fletcher’s claim against these two defendants without any further cost to her.

[ 25 ] Before Master Robertson, these defendants beat their offer; not only was Ms. Fletcher’s claim against them dismissed, but they were also awarded costs. Master Robertson, however, found that the offer did not constitute a genuine offer because it was served so early in the proceedings and did not contain any payment to Ms. Fletcher.

He concluded it was not meaningful and therefore refused to award double costs. [ 26 ] When a defendant serves a plaintiff with an offer to discontinue on a without costs basis very early in the legal proceedings, one’s first reaction may certainly be that the offer is purely a strategic maneuver to pressure the plaintiff to “go away”, and that it is not created as a measured analysis of the costs and risks of the litigation. In other words, at first glance the offer may not be meaningful.

In such a case, the defendant is not entitled to double costs, as Master Robertson indicated. [ 27 ] However, the fact that the offer is served early in the proceedings and does not offer any payment to the plaintiff does not automatically mean that the defendant is prevented from receiving double costs. As stated in Allen (Next Friend of) v University Hospitals Board , 2006 ABCA 101 at para 17 : The assessment of an offer’s genuineness is not confined to a consideration of whether it was made honestly and in good faith.

The fact it contains an element of compromise, although necessary and relevant, may not be determinative. The genuineness of an offer must be assessed as at the time it was served and remained open and its character cannot be decided by simply comparing it to the result of the trial or appeal. That is only one factor to be considered.

Other factors that may be relevant include the amount or nature of the settlement offer relative to the relief claimed or the judgment at trial, the relationship of the proposed settlement to an objective view of the relative merit of the positions of the parties, and the timing of the offer in relation to the commencement of the trial or hearing of the appeal. None of these factors, or any other single factor, is necessarily conclusive.

An assessment of whether an offer was or was not genuine requires an examination of all of the surrounding circumstances, subjective and objective, existing at the time the offer was served and remained open, as well as the outcome of the trial or appeal. [ 28 ] Mr. Moe was sued for the manner in which he carried out his duties as trustee in Ms. Fletcher’s matrimonial property and support action. The order appointing him as trustee gave him the exclusive authority to settle the action. In effect, Mr. Moe agreed to act as Ms. Fletcher – and to accept only the best settlement Ms. Fletcher could obtain. [ 29 ] Ms.

Fletcher argues that Mr. Moe did not properly fulfill his duties as trustee, but she gives no particulars of the failure. In his affidavit in support of the

summary judgment application, Mr. Moe deposes that he accepted the JDR settlement on the basis that it “was fair and reasonable to [Ms. Fletcher], and that it was in [Ms. Fletcher’s] best interests to do so”. [ 30 ] Ms. Fletcher questioned the settlement soon after it was concluded, and as part of this, she questioned Mr. Moe. This gave him further opportunity to review the settlement, and he said to her, “there was very little or nothing you left on the table”. [ 31 ] Thus, by the time Mr. Moe was served with Ms.

Fletcher’s statement of claim against him, he had participated fully in the settlement discussions, accepted the settlement because he believed it was fair, reasonable, and in Ms. Fletcher’s best interests, and had again reviewed the settlement when Ms. Fletcher expressed concerns about it. Her statement of claim presented no new information or suggested any different angle from which he ought to have approached his role. There was nothing new for Mr. Moe to discover at further stages of the lawsuit. To paraphrase Allen , at the time Mr.

Moe made his offer he was well aware of the relative merit of the position of the parties, and he had already long formed the opinion that for Ms. Fletcher to carry the matter further would only cost her more in the long run. [ 32 ] In the rather unique circumstances of this case, Mr. Moe’s decision to bring a

summary judgment application and make a formal offer so early in the process is consistent with his now-discharged role of trustee: his attempt to end this lawsuit as soon as possible is for the long-term benefit of preserving the estate assets he worked to obtain in the matrimonial property and support action. [ 33 ] So prior to making the formal offer to settle, one must ask what else Mr. Moe was supposed to wait for. In my view, the answer is nothing.

I therefore find that Master Robertson was incorrect, as he did not look beyond the early timing and amount of the offer, and conduct an examination of all the surrounding circumstances. Once these circumstances are considered, I find the offer was genuine. I award double costs. [ 34 ] Mr. Moe and Moe Hannah LLP were the only parties before Master Robertson who were represented by a lawyer from Calgary. On their success, they also claimed the disbursement costs for their lawyer to travel from Calgary to Lethbridge.

Master Robertson denied this, saying this was a Lethbridge action and Lethbridge counsel should have been hired. [ 35 ] Mr. Moe and his counsel argue that Lethbridge is a relatively small city with a relatively small legal community, and two of the four sets of defendants are already represented by lawyers from Lethbridge. This is a far cry from saying there was no available competent Lethbridge lawyer to properly represent Mr. Moe’s and Moe Hannah LLP’s interests. I agree with Master Robertson that Ms. Fletcher does not have to reimburse Calgary counsel’s travel disbursements.

Conclusion [ 36 ] While a judge can have a great deal of sympathy for a litigant, no judge should enable that litigant to cling to the past by languishing in the court system. Ms. Fletcher’s appeal is dismissed. Now she must face the cost consequences of her decisions to file this lawsuit, and to appeal. [ 37 ] As previously ordered by Master Robertson, Ms. Fletcher must pay the costs of Soby Boyden Lenz LLP, Robert Boyden and Elaine Lenz in the amount of $6,707.50, and the costs of Herbert Beswick and Davidson & Williams LLP in the amount of $6,626.24. [ 38 ] Mr.

Moe’s and Moe Hannah LLP’s appeal of Master Robertson’s costs award is allowed. Master Robertson awarded them costs of $6,500.00. I find they are entitled to double costs and award them $13,000. I confirm the disbursements awarded by Master

Robertson at $481.61, for a total award of costs of $13,482.61. [ 39 ] Because Ms. Fletcher would not agree to the draft form of order and the amount of costs from the Master’s hearing, there was a second application in front of Master Robertson. All three sets of defendants were awarded additional costs of $500 each, for a further total of $1,500.00 also owing by Ms. Fletcher. [ 40 ] Assuming none of the costs have been paid, the total costs owing by Ms. Fletcher prior to the issuance of this decision are therefore $28,316.35.

The defendants’ right to take steps to collect these costs was stayed, first by Master Robertson, then by this Court, pending the outcome of this appeal. Because the appeal is over and Ms. Fletcher lost, that stay is now lifted. If Ms. Fletcher does not pay the defendants’ costs of $28,316.35, the defendants may garnish her bank accounts or take various other steps to collect payment. [ 41 ] Ms. Fletcher chose to appeal Master Robertson’s decision, and she lost. So now, all the respondents to Ms. Fletcher’s appeal are also entitled to costs for this appeal hearing. I am available to hear argument on costs if Ms.

Fletcher and the defendants cannot agree to an amount. But hopefully Ms. Fletcher will see, from the costs she already owes, that this litigation, which I have found has no reasonable prospect of success, will rapidly deplete the allegedly few resources she says she has. Heard on the 13 th day of October, 2015. Dated at the City of Lethbridge, Alberta this 9 th day of December, 2015. J.H. Langston J.C.Q.B.A. Appearances: Todd M. Lee Miles Davison LLP for the Respondent/Cross-Appellants, Moe Hannah LLP and Douglas Moe Kerry Gellrich North & Company LLP For the Respondent, Davidson & Williams LLP and Herbert R.

Beswick, QC Gordon D. Keith Millar & Keith LLP For the Respondents, Robert V.T. Boyden, Elaine Lenz, and Soby Boyden Lenz LLP Sharon Joy Lydia Fletcher

The Appellant/Cross-Respondent, representing herself