McRoberts v Bronsch, 2017 ABQB 171

Court of Queen’s Bench of Alberta Citation: McRoberts v Bronsch, 2017 ABQB 171 Date: 20170316 Docket: 0803 00433 Registry: Edmonton Between: Heather McRoberts Plaintiff - and - Philip Neil Bronsch, Philip Neil Bronsch Professional Corporation, Romanovsky & Associates, Durocher Simpson Koehli & Erler and Eugene J. Erler Defendants _______________________________________________________ Reasons for Decision of W.

Breitkreuz , Master in Chambers _______________________________________________________ [ 1 ] This is an application by the Plaintiff (Defendant by Counterclaim) to strike the Counterclaim of the Defendants Durocher Simpson Koehli & Erler and Eugene Erler. The Plaintiff will be referred to as the Applicant and the Defendants will be referred to as the Respondents. [ 2 ] The Respondents represented the Applicant in an action which went to trial and in which the Applicant was successful in getting judgment in the range of $150,000. The Applicant was unhappy with that amount and appealed.

The appeal was resolved by mediation but the counterclaim of the Respondents was not resolved in the mediation. [ 3 ] In the brief filed by the Respondents for the mediation, the introduction to the brief reads as follows: This mediation is about three issues: the strategy used to establish one of the alleged grounds in the oppression action,

b) the amount of interest payable under $75,000 that was the subject matter of a shareholder’s loan action,

c) the counter-claim of Durocher Simpson Koehli & Erler for an unpaid legal account in the amount of 57,108. And then a little further the following: In

summary, point 5, Mr. Erler met all the obligations and duties that form part of his retainer, and there is no reason to withhold payment of his firm’s legal account.

[ 4 ] I believe this is a complete answer to Mr. Champion’s argument that the main action between the Applicant and the Respondents are not inextricably connected. [ 5 ] In the main action i.e., the Plaintiff versus the various Defendants is a claim that the Defendants were negligent in the conduct of the litigation.

The Respondents counterclaimed against the Plaintiff for their legal fees for the carriage of the main action in which they obtained a judgment for the Plaintiff in the area of $150,000. [ 6 ] The Counterclaim is for the legal fees and costs account submitted by the Respondents to the Applicant. [ 7 ] After the mediation, which resulted in a settlement of the main action, Mr. Warner, counsel for the Applicant, sent the following email to Mr.

Rosselli, counsel for the Respondents, which reads in part, obviously in reference to the Counterclaim as follows: Please also confirm that you agree to extend for an indefinite period the deadline for a reply and a defence. [ 8 ] Mr. Erler relies on this as perhaps falling short of a standstill agreement, at least enough of an agreement to preclude the Plaintiff from succeeding on a Rule 4.33 application. [ 9 ] I have not overlooked the possibility that at one point Mr. Erler may have forgotten about the content of Mr. Warner’s email because he communicated to Mr.

Champion that a defence to the counter-claim will be required shortly because he is facing a three year limitation period. [ 10 ] My view is that that does not estop Mr. Erler from relying on the email which I think can be fairly interpreted as meaning time will not start running until Mr. Erler or his counsel notifies opposing counsel to that effect. [ 11 ] In my view a right cannot be inadvertently waived. It must be done consciously, i.e. intentionally. [ 12 ] Accordingly, the application is dismissed with costs to the Respondents. Heard on the 24 th day of November, 2016.

Dated at the City of Edmonton, Alberta this 16 th day of March, 2017. W. Breitkreuz M.C.Q.B.A. Appearances: Jeffrey B. Champion, Q.C. Bishop & McKenzie LLP for the Applicant, Heather McRoberts Eugene E. Erler Durocher Simpson Koehli & Erler LLP for the Respondents, Durocher Simpson Koehli & Erler and Eugene Erler