Glenn v Dagher, 2017 ABQB 443

Court of Queen ’ s Bench of Alberta Citation: Glenn v Dagher, 2017 ABQB 443 Date: 20171220 Docket: 1401 02931 Registry: Calgary Between: Richard Glenn and Richard Glenn Law Office Appellants/Defendants - and - Danny Hani Boulos Dagher Respondent/Plaintiff _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice D.B. Nixon _______________________________________________________ Appeal from the Decision by J.T. Prowse, Master in Chambers Dated the 27 th day of November 2014

I. Introduction [ 1 ] A

summary of this decision was delivered orally. I reserved the right to make editorial changes to the final form of the Judgment. I advised the parties that written reasons would be forthcoming. [ 2 ] This is an appeal of a Master’s Order. The Master struck portions of the Statement of Claim associated with this Court action. However, the Master did not strike the pleading concerning two elements. [ 3 ] First, the Master did not strike the portion of the pleadings concerning the alleged failure of Mr. Richard Glenn and Richard Glenn Law Office (collectively, “ Mr.

Glenn ”) to include Everest Crown Laboratory (“ Everest Lab ”) as a defendant party in pleadings that were prepared for the action against Dr. Petty and his professional corporation. Second, the Master did not strike the portion of the pleadings concerning the alleged failure to include information concerning the crushed dental models. [ 4 ] Those two remaining elements in the pleadings (collectively, the “ Residual Pleadings ”) are the focus of this Application. II. Issue [ 5 ] Should the Residual Pleadings be dismissed? III. The Facts [ 6 ] Mr.

Dagher had various dental models of his teeth prepared during 2005, 2006 and 2007 (collectively, the “ Dental Models ”). Mr. Dagher’s primary purpose in having the Dental Models prepared was to create a ‘snapshot in time’ of his mouth in case the dental work was negligent. [ 7 ] Mr. Dagher initially retained the services of Dr. Thompson, a dentist. Ultimately, Mr. Dagher was not satisfied with the dental services provided by Dr. Thompson. [ 8 ] In 2008, Mr. Dagher wrote a letter of complaint against Dr.

Thompson to the Alberta Dental Association and College (the “ Dental College ”). [ 9 ] In the 2008 correspondence to the Dental College, Mr. Dagher indicated that he had asked Dr. Thompson to address certain dental concerns. In particular, Mr. Dagher asked Dr. Thompson to take steps so that he would not bite his tongue. [ 10 ] Mr. Dagher alleged that Dr. Thompson was negligent in the provision of dental services. Mr. Dagher commenced an action against Dr. Thompson in or about November 2009. This was Court Action No. 0901-16987 (the “ Thompson Action ”). [ 11 ] Mr. Dagher sought a new dentist. In 2010, Mr.

Dagher retained Dr. Trey Petty to install Crowns. To address the dental needs of Mr. Dagher, Dr. Petty retained Everest Lab to prepare the Crowns. [ 12 ] At the request of Dr. Petty, Mr. Dagher delivered the Dental Models to Everest Lab. Mr. Dagher also attended Everest Lab a number of times while the Crowns were being constructed. [ 13 ] The attendance of Mr. Dagher at Everest Lab was a standard procedure in these circumstances. One of the purposes of that attendance was to enable the lab to match the color of the Crowns to the adjacent teeth that Mr. Dagher had in his mouth. [ 14 ] Dr.

Petty installed the Crowns on the designated teeth of Mr. Dagher. Mr. Dagher was not satisfied with the dental services supplied by Dr. Petty. [ 15 ] Everest Lab billed Dr. Petty for the construction of the Crowns. In turn, Dr. Petty invoiced Mr. Dagher for the dental work, which included the cost of the Crowns. [ 16 ] Everest Lab returned the Dental Models to Dr. Petty. Upon receiving the Dental Models, Dr. Petty forwarded the models to Mr. Dagher. [ 17 ] Mr. Dagher alleges that the Dental Models were in a crushed condition when they were returned to him.

The knowledge of the Dental Models being crushed came to his attention on September 24, 2010. [ 18 ] Mr. Dagher alleges that on January 27, 2011 he instructed Mr. Glenn to draft and file a Statement of Claim against Dr. Petty and the Everest Lab. [ 19 ] The notes recorded by Mr. Glenn at the meeting on January 27, 2011 indicate that Mr. Dagher instructed Mr. Glenn to write a letter of complaint to Dr. Petty. [ 20 ] The time sheets of Mr. Glenn indicate that he attended Court on August 8, 2011. On that same date, the Court issued an Order directing that Mr.

Dagher pay $9,819.05 into Court as security for costs in respect of the Thompson Action (the “ Thompson Security of Cost Order ”). The time sheets of Mr. Glenn also record that he talked to Mr. Dagher on that same date. [ 21 ] The Thompson Action was discontinued on or about November 21, 2011. It was discontinued because Mr. Dagher did not pay the $9,819.05 into Court, as required by Thompson Security of Cost Order.

[ 22 ] Mr. Dagher alleges that, at a meeting on December 7, 2011, it was agreed that Mr. Glenn would “...[p]repare, file and serve a Statement of Claim against Petty and any other culpable parties to the claim, including Everest, within the limitation period”. [ 23 ] In a letter dated February 22, 2012, Mr. Glenn alerted Dr. Petty to the complaints of Mr. Dagher. That letter included the following particulars. a. That the Crowns were incorrectly positioned, with the result that Mr. Dagher constantly bites his tongue and lower lip. b. That the crushed Dental Models substantially prejudiced Mr.

Dagher because that destruction impacted his ability to advance another lawsuit in which he was involved. [ 24 ] The other lawsuit in respect of which Mr. Dagher required the Dental Models was the Thompson Action. [ 25 ] The time sheets of Mr. Glenn indicate that he was instructed by Mr. Dagher on October 23, 2012 to file the Statement of Claim against Dr. Petty. [ 26 ] The Statement of Claim against Dr. Trey Petty and Trey Petty Professional Corporation was filed on October 24, 2012 (collectively, the “ Petty Action ”).

This was Court Action No. 1201-13429. [ 27 ] The Statement of Claim filed in the Petty Action did not list Everest Lab as a defendant. The Procedure Card from the Court of Queen’s Bench of Alberta recorded that Mr. Dagher filed the document himself, and that Norton Rose Canada LLP was representing Dr. Petty in respect of the Petty Action. [ 28 ] An Amended Statement of Claim in the Petty Action was filed on January 21, 2013. In that amended pleading, Mr.

Dagher tried to add Everest Lab as a defendant. [ 29 ] The address for service and the contact information noted on the pleadings in respect of the plaintiff for the Petty Action was the home address of Mr. Dagher. He also was listed as the contact person in the documents underlying that action. [ 30 ] On May 10, 2013, Mr. Dagher commenced a court action against Richard Glenn (the “ First Glenn Action ”). This was Court Action No. 1301-05854. [ 31 ] In the First Glenn Action, Mr. Dagher alleged that Mr. Glenn failed to notify him of the Thompson Security of Cost Order. Mr.

Dagher further alleged that the failure of Mr. Glenn to notify him of the Security for Costs Order was the cause of the discontinuance of the Thompson Action. [ 32 ] The First Glenn Action was summarily dismissed on December 16, 2014. Mr. Dagher appealed that dismissal to the Alberta Court of Appeal. [ 33 ] A Discontinuance of Claim was filed in the Petty Action on February 5, 2014 (the “ Petty Action Discontinuance ”). That discontinuance was signed by Mr. Dagher, in his capacity as the Plaintiff, and by Counsel from Norton Rose Fulbright Canada LLP, in his capacity as defence counsel for Dr.

Petty and Trey Petty Professional Corporation (“ Norton Rose Counsel ”). [ 34 ] The address for service and the contact information noted on the Petty Action Discontinuance in respect of the plaintiff was the home address of Mr. Dagher. He also was listed as the contact person on that discontinuance document. [ 35 ] On March 17, 2014, Mr. Dagher commenced this action against Mr. Glenn (the “ Second Glenn Action ”).

This was Court Action No. 1401-02931. [ 36 ] The address for service and the contact information noted on the Statement of Claim for the Second Glenn Action (A.K.A. the Residual Pleadings) in respect of the plaintiff was the home address of Mr. Dagher. He also was listed as the contact person in the documents underlying that action. [ 37 ] As a result of the amendments that flowed from the Order of Master Prowse, dated November 27, 2014, the Residual Pleadings allege that Mr. Glenn: (

a) had failed to list Everest Lab as a defendant in the Petty Action; and (

b) had failed to include the relevant information related to the crushed Dental Models. Those pleadings went on to assert that Mr. Glenn had breached his duty of care to Mr. Dagher. [ 38 ] Mr. Dagher argued before the Master that the crushing of the Dental Models prejudiced his ability to advance the Thompson Action. That alleged deficiency gave rise to the First Glenn Action. The Thompson Action was dismissed in the Court of Queen’s Bench of Alberta because Mr. Dagher did not comply with the Thompson Security of Cost Order. That action is at an end. [ 39 ] The Alberta Court of Appeal upheld the

summary dismissal of the First Glenn Action: Dagher v Glenn , 2016 ABCA 38 at paras 32 and 33 . In

summary, that appellant court terminated the First Glenn Action. IV. Analysis A. The Law [ 40 ] This case raises a number of legal principles, which are briefly outlined below.

1. Standard of Review [41] This is an appeal from a decision of a Master. That being the case, the standard of review on all issues is correctness. [42] Since this appeal is reviewable on a standard of correctness, this Court has the authority to substitute its views for those of theMaster. 2.

Summary Judgment – The Tests [43]

Section 7.3 of the Alberta Rules of Court outlines the rules in respect of applications for

summary judgment. The relevantportion of that rule reads as follows. 7.3(1) A party may apply to the Court for

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

b) there is no merit to a claim or part of it; [44] The test for

summary judgment has been commented on by the appellate courts. The judicial guidelines are as follows:Hryniak v Mauldin, 2014 SCC 7 at paras 5 and 49; cited with approval in Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 atpara 13: [5] ...I conclude that

summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable,timely and just adjudication of claims. … [49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on amotion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2)allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a justresult. 3. Pleadings – Define the Scope [45] The scope of pleadings do matter: Paniccia Estate v Toal, 2012 ABCA 397 at para 32. They define the case. [46] Pleadings outline the facts on which a litigant relies. Those facts or particulars provide notice to the defendants, and preventsurprise.

Further, the particulars outlined by a plaintiff provide a framework that allows the defendants to prepare their response to theinherent issues. That is the purpose of pleadings. [47] The legal conclusions which the particulars attract are a consequence of the findings of fact that the court makes in the case.Those legal conclusions do not have to be pled: Kramer’s Technical Services Inc v Eco-Industrial Business Park Inc, 2015 ABQB 59at para 41. However, the pleadings must include a statement of any matter on which a party intends to reply so that the other party is nottaken by surprise:

section 13.6(3) of the Alberta Rules of Court. [48] The importance of pleadings is underscored by the fact that it is an error of law for a trial judge to decide a case on a basis thathas not been pled: Motkoski Holdings Ltd v Yellowhead (County), 2010 ABCA 72 at para 20. Specifically, finding a defendant liable ona ground not pled is an error of law. It is reviewable on a standard of correctness: Online Constructors Ltd v Speers Construction Ltd,2012 ABCA 132 at para 15. 4. Cause of Action [49] The Court’s ability to deal with significant deficiencies in a claim is provided for in

section 3.68 of the Alberta Rules of Court.Section 3.68(1)(

a) provides that the Court may order “…that all or any part of a claim …be struck out”.

Section 3.68(2)(

b) outlines theconditions upon which a striking may occur, which includes circumstances where the pleading discloses no reasonable claim. [50] The Alberta Rules of Court include a prohibition. Specifically,

section 3.68(3) of the Alberta Rules of Court stipulates that“[n]o evidence may be submitted on an application made on the basis of the condition set out in subrule (2)(b)”. 5. Economic Negligence [51] In addition to the assertion by Mr. Dagher that he had a claim against Mr. Glenn for a breach of contract, he also is assertingthat he has a claim against Mr. Glenn for the tort of economic loss. [52] The recoverability for economic loss in negligence is determined by assessing whether a duty of care exists in respect of aparticular claim.

The law in this area has shifted over the decades. [53] The Supreme Court of Canada has recognized five categories of recoverability in tort for economic loss. Each of thesecategories has developed its own unique duty of care. [54] While the categories continue to evolve, the five categories of recovery are as follows: Winnipeg Condo Corp No. 36 v BirdConstruction Co., (SCC), [1995] 1 SCR 85 at para 12.

i. The independent liability of statutory public authorities ii. Negligent misrepresentation iii. Negligent performance of a service iv. Negligent supply of shoddy goods or structures v. Relational economic loss [ 55 ] The Supreme Court of Canada has emphasized that the recoverability for economic loss is to be approached with reference to the unique policy issues that underlie each of the categories.

That Court stressed this point because the issues concerning recovery for economic loss are concerned with determining the proper scope of the law of tort. [ 56 ] The economic loss category that is being advanced by Mr. Dagher is “negligent performance of a service”. 6. Privity of Contract [ 57 ] Mr. Dagher has advanced an argument which is based on an alleged contractual relationship between him and Everest Lab. Implicit in his argument is the assertion that there was privity of contract between Mr. Dagher and Everest Lab. [ 58 ] Privity of contract is an established doctrine in the common law.

Under this doctrine, only the contracting parties are entitled to the benefits, or subject to the burdens, of an underlying contract: Power v Goodram , 2012 ABQB 50 at para 111 . [ 59 ] A derivative of the privity of contract doctrine is that a contracting party cannot discharge his contractual obligation to his client by delegating it to the subcontractor: Vandenbrink Farm Equipment Inc v Double-D Transport Inc , 1999 ONSC 14947 at para 50.

That being the case, the contracting party is liable to his client for any default of the subcontractor: QQR Mechanical Contracting Ltd v Panther Controls Ltd , 2005 ABQB 58 at para 15 . B. Application of Law to the Facts 1. An Overview [ 60 ] As stated above, the Residual Pleadings focus on two elements. First, the assertion that Everest Lab was not listed as a defendant in the Petty Action. Second, the assertion that the Dental Models were crushed such that they could not be used as evidence in the Thompson Action. [ 61 ] Mr. Glenn seeks to strike the Residual Pleadings.

He argues that what remains of the Second Glenn Action is moot, without merit and properly disposed of by way of

summary judgment. 2.

Summary Judgment [ 62 ] The test for

summary judgment is to examine the evidence before the Court to see if a disposition can be made on the existing record that is fair and just in respect of both parties. This Court finds that it has sufficient facts to make a proportionate and just decision in respect of the issues before it. The facts on which the Court relies are contained in Affidavits filed. 3. Claim for Breach of Contract [ 63 ] Concerning the alleged claim for breach of contract, the Court finds that it fails for two reasons. First, there was no need for Mr. Glenn to include Everest Lab as a defendant in the Petty Action.

The reason for this conclusion is that there is no privity of contract between Mr. Dagher and Everest Lab. Second, Mr. Dagher did not ask Mr. Glenn to add Everest Lab to the pleading. As such, Mr. Glenn did not fail to follow an instruction of Mr. Dagher. The detailed rationales for these two findings are as follows. a. Privity of Contract – No Privity with Everest Lab [ 64 ] A contracting party has an obligation to his clients. That contracting party cannot discharge his contractual obligation to his client by delegating it to a subcontractor. Applying that legal premise to the circumstances, Dr.

Petty could not discharge his contractual obligations to Mr. Dagher by delegating it to Everest Lab: Vandenbrink Farm Equipment at para 50. [ 65 ] In his capacity as the contracting party, Dr. Petty was liable to his client for any default of the subcontractor: QQR Mechanical Contracting at para 15. Applying that legal principle to this case, Dr. Petty still had primary responsibility to Mr. Dagher for the dental services that he provided. As such, Mr. Dagher could have pursued his claim against Dr.

Petty for any damages he suffered in respect of Everest Lab, including any loss suffered in connection with the crushed Dental Models. [ 66 ] This entitlement existed for Mr. Dagher because he had privity of contract with Dr. Petty. In contrast, there was no privity of contract between Mr. Dagher and Everest Lab. The mere delivery of the Dental Models by Mr. Dagher to Everest Lab did not establish privity of contract between those two persons. Further, the mere attendance of Mr. Dagher at Everest Lab for the purpose of matching the color of the Crowns to the adjacent teeth that Mr.

Dagher had in his mouth did not establish privity of contract between those two persons. [ 67 ] Mr. Dagher discontinued his claim in the Petty Action on February 5, 2014. That was evidenced by his execution of the Petty Action Discontinuance.

[ 68 ] By signing the Petty Action Discontinuance, Mr. Dagher was the author of his own misfortune. This Court finds that Mr. Dagher lost his right of action for damages against Dr. Petty in respect of the deficiencies of Everest Lab by way of his own signature. [ 69 ] As an aside, the damages to, and destruction of, the Dental Models is of no account because the action that Mr. Dagher had against Dr. Thompson is gone. This legal result exists because the Thompson Action was discontinued on or about November 7, 2011. b. Defendant Everest Lab – No Instructions [ 70 ] Mr. Dagher asserts that he instructed Mr.

Glenn on January 27, 2011 to draft and file a Statement of Claim against Dr. Petty and Everest Lab. That assertion is inconsistent with three particulars which Mr. Dagher provided to the Court. [ 71 ] First, notwithstanding his alleged instruction on January 27, 2011, Mr. Dagher also asserts that he reached an agreement with Mr. Glenn on December 7, 2011. Mr. Dagher argues that under the terms of that agreement, Mr.

Glenn was to prepare and file the Statement of Claim in respect of the Petty Action, in which Everest Lab was to be listed as a defendant. [ 72 ] The alleged January 27, 2011 instruction and the December 7, 2011 agreement do not reconcile. The alleged agreement on December 7, 2011 is more than ten months after the alleged instruction on January 27, 2011. It has to be one or the other, or neither. This is the first internal inconsistency. [ 73 ] Second, the evidence that Mr. Dagher provided to the Court included meeting notes that Mr. Glenn recorded on January 27, 2011. Those meeting notes record that Mr.

Dagher only instructed Mr. Glenn to write a letter of complaint to Dr. Petty on that January 2011 date. Since the notes recorded by Mr. Glenn on January 27, 2011 do not include any instructions from Mr. Dagher to draft and file a Statement of Claim against Dr. Petty and Everest Lab, this Court infers that no such instruction was issued by Mr. Dagher. This is an external inconsistency. [ 74 ] Third, the assertion by Mr. Dagher that he instructed Mr. Glenn in 2011 to include Everest Lab as a defendant is directly contradicted by Mr.

Dagher’s own assertions during the proceedings with the Master on November 27, 2014. During those 2014 proceedings in front of the Master, Mr. Dagher stated that Norton Rose Counsel for Dr. Petty convinced him on or about February 5, 2014 that Everest Lab was statute barred. If Mr. Dagher had been cognizant of the limitation date at the earlier date, there would have been no need for Norton Rose Counsel to convince Mr. Dagher that the limitation date had now passed. But for his reference to the limitation period, this Court may have given some merit to Mr.

Dagher’s assertions concerning an oral agreement on December 7, 2011. However, that incremental assertion shifts this entire allegation into the realm of fantasy. Again, Mr. Dagher contradicts himself. This is the second internal inconsistency. [ 75 ] Given these three inconsistencies, this Court finds that Mr. Dagher did not instruct Mr. Glenn at any relevant time to draft and file a Statement of Claim that included Everest Lab as a Defendant. 4. Claim for Economic Loss in Tort [ 76 ] The claim by Mr.

Dagher for negligent performance of a service under the category of economic loss only focuses on the damages to, and destruction of, the Dental Models. He is asserting a claim against Mr. Glenn because the loss of the Dental Models affected his ability to pursue the Thompson Action. [ 77 ] The Thompson Action was terminated. As such, Mr. Dagher has no cause of action against Mr. Glenn under the tort of economic loss in negligence. V. Conclusion [ 78 ] This Application is granted. In the circumstances, the Residual Pleadings are struck under

section 3.68(2)(

b) of the Alberta Rules of Court because they disclose no reasonable claim. In coming to this conclusion, the Court has considered the entire context of the pleadings: see HOOPP Realty Inc v Guarantee Co. of North America , 2015 ABCA 336 at paras 14 and 15 . This conclusion is also supported by

section 7.3(1)(

b) of the Alberta Rules of Court because there is no merit to the claims given that both the Thompson Action and the Petty Action have been extinguished. That is the end of the story. No more needs to be said. [ 79 ] The parties may speak to costs at a future date. Heard on the 20 th day of October, 2015. Oral decision given on June 29, 2017. Written decision at the City of Calgary, Alberta, this 20 day of December, 2017.

D.B. Nixon J.C.Q.B.A. Appearances: Dale E. Johns, QC for the Appellants Danny H. B. Dagher Self-represented