Stanfield v Schneider, 2017 ABQB 528

Court of Queen’s Bench of Alberta Citation: Stanfield v Schneider, 2017 ABQB 528 Date: 20170830 Docket: 1506 00660 Registry: Lethbridge Between: Ralphe Harvey Stanfield Applicant - and - Heather June Schneider and Richard A. Low and Michael R. Low and Richard A. Low & Company LLP Respondents _______________________________________________________ Memorandum of Decision of the A. R. Robertson , Q.C., Master in Chambers _______________________________________________________

[ 1 ] This is a decision on costs relating to a prior written decision. [ 2 ] On June 17, 2017 I released my decision on an application to amend the statement of claim in this matter. I said that costs would be spoken to at the next hearing on July 6, 2017. When the matter came back before me on that date, counsel for the plaintiff was not prepared to address costs, and as a result I directed that the parties file briefs setting out their positions. [ 3 ] I have now received those briefs. Both the lawyer defendants Richard A. Low, Michael R. Low and Richard A.

Low and Company LLP (the “Low defendants”) and the defendant Heather June Schneider ask for solicitor client costs, or in the alternative an elevated level of costs. [ 4 ] The foundational rules (rule 1.2 in particular) say that, “The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.” Sub- rule (3) direct the parties to “refrain from filing applications are taking proceedings that do not further the purpose and intention of these rules”.

This is the background to my decision and it informs me as to my award of costs. [ 5 ] Counsel for the plaintiff has filed a 22 page brief which focuses on various topics, one of which is an assertion that my decision was “wrong enough to not favour [me] granting costs except costs in the cause”, and he describes my comments in the previous decision as “scathing attacks on plaintiff’s counsel”.

He has been offended by my statement, at the end of the decision, after concluding that the application to amend should be dismissed that “the application to amend was not brought in good faith, and that is another reason for denying application.” [ 6 ] In his brief, counsel for the plaintiff now makes allegations of bias and general impropriety on my behalf, alleging that he received “harsh criticism” and says I made “scathing attacks” on him in the decision. He asserts that I decided that the amended pleadings were “untrue and unjustified”. I did not conclude that they were untrue.

I said that adding this evidentiary detail violated rule 13.6(2)(

a) and did not assist. [ 7 ] He asserts that “Every fact is viewed negatively by the Master with respect to the Plaintiff and shortcomings of the Low defendants ignored or minimized.” I note that I did not accept defence counsel’s submissions about my jurisdiction (para. 30 – 31 of my decision) or about the application of Hur v 726913 Alberta Ltd to these circumstances (para. 48 – 51). [ 8 ] With all due respect to counsel for the plaintiff, I did not consider my comments to be “scathing”, nor do I consider myself to have been biased.

I simply made the ruling that I thought was correct. [ 9 ] As these objections are addressed in connection with the proper approach to be taken to the award of costs, I must briefly re- visit my reasons for the decision to explain the reference to an absence of good faith. [ 10 ] I dismissed the application for, in essence, these reasons: 1. The proposed amendment pled, with great particularity and significant volume, the evidence upon which the plaintiff relies on for the entire claim. That is a violation of rule 13.6 (2)(a). 2.

The proposed amendment was filed in response to an application by the Low defendants to strike the claim under rule 3.68(3), but the amendments did not clarify the pleading or add anything that tended to address the issues raised in the application to strike by the Low defendants. 3. The proposed application included allegations that might properly be described as allegations of fraud, exposing the plaintiff to a possible award of solicitor client costs if he is not successful at trial, and in light of my view of the pleading as a whole, this seemed ill- advised.

I specifically noted, in paragraph 47 of my decision, that plaintiff’s counsel had proposed in oral argument to revise the proposed amendments so as to remove the allegations of fraud. I did not have his proposed revisions because the proposal had simply been made orally. The specific assertions of fraud did not, in my view, tend to address the Low defendants’ application to strike. 4.

After making the decision based on the above grounds, I expressed my view that the application to amend, having been brought at the last minute when the application to strike had initially been brought months earlier and was adjourned to a special application so that the matter could be dealt with carefully, was not brought in good faith. This is one of the exceptions to the “classic rule” addressing amendments.

It was not central to my decision, but was merely an additional reason supporting the conclusion that I had already reached. [ 11 ] He asserts, yet again, that he was placed at a disadvantage because the counsel for the Low defendants did not file her brief in support of the special application scheduled for June 8 until she was required to do so by Practice Note 2. That is, the criticism is that she followed the rules. [ 12 ] My concern about embedding so much evidence in the pleading is that (

a) failing to describe the facts in a succinct manner (which is what is required by rule 13.6(1)(a)), and (

b) setting out the evidence instead of the facts (which is required by rule 13.6(2)(a) – here, attempting to set out virtually every known, or at least alleged, detail of the facts - are significant violations of the general requirements of pleading. Failure to comply with these requirements works to the disadvantage of all. [ 13 ] A pleading mired in all of the detail the evidence can give becomes opaque. A plea set out in this manner suggests that even the plaintiff is not clear on what the claim is - that is, why it is that what the defendant has done is wrong.

The defendant finds it difficult to understand what the claim actually is. It is difficult for the court on an interlocutory application, or a final application such as

summary judgment, or trial, to understand what the claim is actually about. Issues get lost in the detail of the facts. [ 14 ] Here, the application to strike is based on the argument that the plaintiff cannot sue the defendant lawyers because they were lawyers representing the interests of the defendant Ms. Schneider, and that the law provides various forms of protection for that. They

say no claim can properly be advanced in these circumstances. The argument is a principled one. Many of the details of exactly what was said or done are not important. [ 15 ] The proposed amendments did not appear to address the Low defendants’ arguments about the claim. [ 16 ] The application to amend, brought at the last moment, seemed to have been intended to frustrate the special application to strike that had been set up long before, and it had that effect.

The special application had to be adjourned to another date so that I could deal with the amendment application first. [ 17 ] Plaintiff’s counsel was aware that counsel for the Low defendants would have to travel from Calgary for the application. He did not let her know that he would be applying to amend until, as I understand it, late on the day before the return date for her application to strike.

That put her in the position of having to prepare into the evening prior to travelling to Lethbridge early in the morning, and having to anticipate the possibility of arguing a different application to strike - one relating to an amended claim that she had just received. [ 18 ] Also troubling is the fact that counsel for Ms. Schneider was unaware of any application that might affect her client’s position. She also learned about it at, effectively, the last minute. It was only because she had planned to attend to monitor the application to strike that she was even planning on being in court that day.

Had she not been there, the Court might have in the unfortunate position of having to adjourn simply to hear the application to amend with her involvement. Fortunately, she was willing to allow the application to be argued with virtually no notice. [ 19 ] In another circumstance I might be of the view that the fact that counsel for some of the defendants is from another city is not the plaintiff’s problem. If the defendant wants to hire a lawyer whose office is a long drive from where the claim is being heard, that is a party’s prerogative, but also that party’s expense.

However, this claim is against other prominent members of the litigation bar in Lethbridge, and the litigation bar in Lethbridge is a relatively small bar. The circumstances are that it was entirely appropriate, possibly necessary, to retain counsel from Calgary or Edmonton to represent the Lows.

Plaintiff’s counsel knew that counsel for the Lows would have to travel to Lethbridge to address his last-minute application. [ 20 ] Travel time is therefore a factor that is appropriate to consider. [ 21 ] Had the proposed amendments actually complied with the rules and addressed the issues raised in the application to strike, I would have viewed the timing of the application much more favourably. My conclusion that the application had not been brought in good faith was based essentially on these factors: (

a) it was late, (

b) it was discourteous to other counsel and the Court, and (

c) it was not a proper amendment. [ 22 ] Plaintiff’s counsel now put forward evidence and arguments about illnesses within his office and describes the incorrect filing of the amended statement of claim differently than he did when the matter first came before me. I accept that he is a sole practitioner and does not have the administrative wherewithal to respond as quickly as a lawyer at a larger firm might.

I take that into account in my award. [ 23 ] In support of the applications for solicitor client costs, counsel for the Lows refer to allegations of improper conduct, and in particular the allegations of fraud that I disallowed.

One of the reasons I disallowed the proposed amendment was because of the concerns of fraud - in respect of which plaintiff’s counsel had agreed he would amend in any event to try to ameliorate. [ 24 ] In my view, those allegations were set forth in an affidavit filed months before, there was nothing new in the proposed amended pleading, plaintiff’s counsel had offered to make changes to address this concern, and I did not allow the amendment. Although there is some concern, this complaint is of modest concern at this point because it reflects assertions made long ago.

It may be a factor if the defendants are successful in the claim. [ 25 ] Comparisons are drawn by both counsel for Ms. Schneider and counsel for the Lows to my decision in Riccioni v Law Society of Alberta , 2017 ABQB 372 , where I said that and a higher level of evidence is required to support proposed amendments that contain assertions of fraud or high-handed or malicious conduct. However, plaintiff’s counsel properly points out that that case was more troubling, and there was not the higher level of evidence to support the proposed amendments.

The claim involved a collateral attack on disciplinary proceedings brought before the Law Society which had already been appealed unsuccessfully to the Alberta Court of Appeal. I concluded that the entire claim was without merit. The plaintiff’s application to amend had been brought in that context. [ 26 ] In my view an elevated award of costs is appropriate, but not in the range proposed by counsel for the defendants.

In light of the need to have written briefs simply to deal with the costs aspect of the claim (because the plaintiff was unable to address costs in oral argument) this application has become an “application requiring written briefs” pursuant to item 8 (1) of

Schedule C of the Alberta Rules of Court, and at least it is a contested application under item 7(1). [ 27 ] Simply following

Schedule C, each of the defence counsel would be entitled to costs. As the amount claimed in the statement of claim is at least $230,000 as against Ms. Schneider (no specific figure being claimed against the Low defendants), column 3 would appear to apply, and a single costs award to each of the defendants (but treating the Low defendants as one) under item 8(1) would be $1,500 plus disbursements. [ 28 ] In the circumstances, I award costs fixed at $3,000 (including disbursements) for counsel for the Low defendants and $1,750 (including disbursements) for counsel for Ms.

Schneider. [ 29 ] If I had awarded solicitor client costs, I would not have awarded second counsel costs as claimed by counsel for the Low defendants.

Heard on the 6 th day of July, 2017. Dated at the City of Calgary, Alberta this 30 th day of August, 2017. A. R. Robertson, Q.C. M.C.C.Q.B.A. Appearances: Harold N. Moodie Harold N. Moodie Law Office for the Applicant Lara Mason and Kaitlin Long Norton Rose Fullbright Canada LLP for the Respondents Richard A. Low, Michael R. Low and Richard A. Low & Company LLP Rachel A. Hopf MacLachlan Mcnab and Hembroff LLP for the Respondent Heather June Schneider