Sangha v Sintra Engineering Inc, 2019 ABQB 924

Court of Queen’s Bench of Alberta Citation: Sangha v Sintra Engineering Inc, 2019 ABQB 924 Date: 20191209 Docket: 1501 01435 Registry: Calgary Between: Inderpal Singh Sangha Plaintiff - and - Sintra Engineering Inc. Government of Alberta Defendants _______________________________________________________ Memorandum of Decision of A.R. Robertson , Q.C., Master in Chambers _______________________________________________________ Introduction [ 1 ] The defendant Sintra Engineering Inc. applies for

summary dismissal of this lawsuit brought by its former client, Mr. Sangha. Until recently, the plaintiff (respondent) Mr. Sangha has been self-represented, but for this application Ms. Balasingam has been retained as counsel.

Background [ 2 ] The lawsuit has its origins in 2002. Mr. Sangha was involved in a few different incidents in 2002 that have led to damage claims. One of them was a motor vehicle accident that occurred October 28, 2002.

He had an accident reconstruction report prepared in 2003 by a different engineering company (which I will call Engineering Firm “A”), and he wanted to have a biomechanical report prepared by Sintra Engineering so as to allow him to present his case for trial in a claim that he had brought against the Superintendent of the Motor Vehicle Accident Claims Fund. [ 3 ] The accident reconstruction report prepared by Engineering Firm “A” in 2003 was refined in 2009. Mr. Sangha had initially said that another car had cut him off, causing the accident. However, after Mr.

Sangha explained that his vehicle had been struck by another car that had attempted to change lanes and hit the right front corner of his car, causing Mr. Sangha to lose control of his car, Engineering Firm “A” revised its opinion, taking into account some damage that was apparent on the right front corner of his car. [ 4 ] Mr. Sangha entered into a letter sent by Sintra Engineering dated February 6, 2013. The subject lines begin, “Interpal Sangha – Biomechanical Assessment”.

That written agreement set out the work to be done and expressly contemplated the potential for Sintra Engineering to present, as expert witnesses, the findings of the assignment. [ 5 ] The letter specifically said that Sintra Engineering could not make any guarantees regarding the outcome of any services that the company performed.

Furthermore, it said, “any discussions that we have with you about the outcome of any matter are our best professional estimates only and are limited by our knowledge at the time they are made.” The letter set out a budget not to exceed $8,000 for labour costs, and the work was to be completed in approximately six weeks. A minimum retainer of $5,000 was required, and it was paid. [ 6 ] The agreement further provided for termination: Either party has the right to terminate our representation at any time on written notice.

In such a case, a final account for services will be rendered, which we expect will be promptly paid. We also have the right to terminate or stop continued consulting engineering services if our invoices for services are not paid in a timely manner. [ 7 ] Mr. Sangha signed that letter on February 6, 2013. [ 8 ] Unfortunately, the entire basis of the discussion at that point was that the accident reconstruction report that Mr. Sangha had already obtained from Engineering Firm A was correct, but it was not. When Mr.

Sangha provided to Sintra Engineering some further photographs of the accident scene (including four that had not been provided to Engineering Firm

A) Sintra’s engineer who was handling the matter concluded that the previous report was wrong, and that would change the opinion to be set out in the biomechanical report. Sintra Engineering explained this to Mr. Sangha, and with his agreement Sintra then did a new accident reconstruction report. [ 9 ] In that new report, Sintra Engineering concluded that his accident in 2002 had involved his vehicle spinning counter- clockwise in the snow and then landing facing more or less southward against a sign. Mr.

Sangha had been clear throughout that he was not sure exactly what happened in the accident because it happened too quickly. He believes that the beginning of his loss of control resulted from being hit by another driver not identified. [ 10 ] This new report indicated a significantly different trajectory than the one described by the Engineering Firm A in its report. [ 11 ] The consequence of this new understanding of how the accident had actually occurred meant that Sintra Engineering was of the view that any injuries that Mr.

Sangha had suffered as a result were transient in nature, meaning that they would have resolved themselves within a few weeks. That, of course, would have called into question whether was it worthwhile obtaining a biomechanical report at all. Mr. Sangha was told on five different occasions that the opinion that he was seeking would likely not help his case: on October 11, 2013 and then finally on September 15, 2014. Additionally, he had been told that his injuries were transient on March 12, 2014 and May 20, 2014. [ 12 ] Mr.

Sangha specifically agreed that he would not instruct the preparation of the biomechanical report until after the reconstruction report was complete. Sintra Engineering then focussed its work on the accident reconstruction report. [ 13 ] Their accident reconstruction report went through five drafts, the fifth draft being the final one. Mr. Sangha was shown the drafts at each stage, and he had comments. [ 14 ] He now complains that there was time wasted. Those complaints were first made near the end of the relationship. [ 15 ] Near the conclusion of the preparation of the drafts of the reports, Mr.

Sangha wanted some additional information inserted into the report. For example, he wanted references to some documents that Sintra Engineering had reviewed, which its engineer felt did not affect the conclusion. The engineer primarily working on the matter could see no point in making these references, but the company deferred to Mr. Sangha’s request. [ 16 ] Of more concern, he wanted an entirely different sketch showing a trajectory – the one that Sintra Engineering had concluded was wrong - added to the report for reasons that Sintra Engineering could not understand. [ 17 ] The engineer concluded that Mr.

Sangha had some ulterior motive. Mr. Sangha had repeatedly said that he did not know how the accident occurred, so it is not at all clear why he would want the experts to include a sketch in their report showing a trajectory that they believed was wrong. [ 18 ] The relationship deteriorated, with Mr. Sangha threatening legal proceedings against Sintra Engineering as well as the involvement of the media, and Sintra Engineering terminated the relationship, wrote off some of their fees, and refused to continue.

[ 19 ] For purposes of defending this claim, Sintra Engineering arranged for one of its competitor engineering companies to review its work and provide an opinion. That opinion is to the effect that Sintra Engineering performed properly in accordance with the skill and care of an engineering company in the circumstances. [ 20 ] In its first version of its report, the competitor made a couple of minor errors (for example, involving a clockwise spin, whereas the sketch is clear that the spin was counter-clockwise) and the expert report was corrected to address those minor errors. [ 21 ] Mr.

Sangha has not presented an expert opinion in reply. The Claim [ 22 ] In order to properly consider an application for

summary dismissal, it is necessary to have a clear understanding of what the claim actually was. The nature of the claim advanced by Mr. Sangha is not particularly clear from the statement of claim. [ 23 ] Counsel for Sintra Engineering has categorized what he thinks are the basic allegations as follows: 1. The plaintiff now disagrees with Sintra’s opinion about the rotation. He said this in an email dated January 13, 2015: I will have future Engineering students alongside Experts review your Findings of October 28, 2002 MVA. Especially, Appendix B (Scene Diagram).

Because I have always reported to your office as well as in Appendix D that my vehicle front end never faced West (while in the median). That is why he wants the second sketch, showing a different trajectory. In his January 13, 2015 email, although Sintra Engineering had written to him on January 7, 2015 saying that it was terminating the relationship, he gave what appears to be an ultimatum: I give your firm until January 22, 2015 to prepare an updated Appendix B to be “further” included in this Finding (unless based on facts you are 100% certain that the rear tires could not have entered the roadway first). 2.

The plaintiff has maintained a certain version to the public about how the accident happened, and this report tarnishes his reputation because it conflicts with what he has told others. 3. The plaintiff wants the second trajectory diagram so as to advance a second avenue of recovery against the motor vehicle accident claims fund, perhaps because he intends to argue that his injuries resulting from this incident were “severe” as opposed to “transient”. [ 24 ] One of Mr. Sangha’s complaints about Sintra Engineering is delay. Mr.

Sangha started this action on February 5, 2015. [ 25 ] In connection with the assertion identified a number 1, Mr. Sangha had repeatedly said that he could not recall how the accident occurred, and he had testified in the claim against the Administrator that his vehicle had spun, with his car ending up facing south – as concluded by Sintra Engineering. [ 26 ] The revised report prepared by Engineering Firm A did not mention any spinning. The counter-clockwise spinning has been consistent throughout all five drafts of the Sintra Engineering report.

The previous drafts had shown the same sketch as Appendix “B”. [ 27 ] Mr. Sangha complains of delay by Sintra Engineering in getting the work done. The Superintendent of the Motor Vehicle Accident Claims Fund brought an application to dismiss his personal injury claim on the grounds of delay pursuant to rule 4.33. That was heard by another master and the decision was appealed.

The Superintendent’s application was dismissed by the master and that decision was upheld on appeal. [ 28 ] The preparation and submission of the accident reconstruction report done by Sintra Engineering was one of the things presented in reply to the argument that there had been nothing to significantly advance the claim. In addition, Mr.

Sangha also provided a biomechanical report relating to a slip and fall accident that preceded this motor vehicle accident, and he asserted that that also significantly advanced his personal injury claim, presumably because the distinction of what injuries resulted from the October 28, 2002 motor vehicle accident as opposed to the earlier incidents is important to the assessment of damages. [ 29 ] It is worth noting that Sintra Engineering was not retained until approximately 11 ½ years after the accident, and the lawsuit against the Superintendent had been begun in 2004, or about 9 years before Sintra Engineering had been retained.

The revised report by Engineering Firm A was dated March 18, 2009, about four years before Mr. Sangh retained Sintra Engineering. [ 30 ] Accordingly, there has been no obvious consequence of the delay that resulted from the work done by Sintra Engineering. Sintra Engineering’s Submissions [ 31 ] Sintra Engineering argues that it was entitled to terminate the relationship. Although the entire work plan changed significantly after entering into the letter agreement, the provision about termination was never changed, and it must have continued to be understood to apply.

That is, the scope of work had expanded because Sintra was going to do an accident reconstruction report (not contemplated at all in the original letter agreement), and then do the biomechanical report. That obviously resulted in significantly more fees. They were charged, and they were paid. [ 32 ] Sintra Engineering argues that the right to terminate, by either party, remained. In light of the disconnect that developed, Sintra Engineering exercised that option.

The company argues that it is not liable for doing so. [ 33 ] The company further argues that it was required to withdraw from services for ethical reasons in light of the insistence that their engineer include things in the report that he knew to be incorrect. [ 34 ] Furthermore, as to the allegation of delay, Mr. Sangha pursued unhelpful issues. Instructions were sought, and the

appropriate caution was given, at every step. Furthermore, he wanted the final draft of the report to include things the engineering firm did not agree should be included. [ 35 ] Finally, in questioning that took place on September 5 and 6, 2018, Mr. Sangha seems to have admitted that he withheld evidence from Sintra Engineering about some pre-existing damage to his vehicle. However, the admission is confusing: Now, I decided I’m going to write them and I’m going to talk about the damages that I’m willing to talk about, and I’m going to kind of just – not lying.

Sure, you can say I’m withholding; but technically, I’m not really committing a crime. I’ve got no other choice at this time. And this is, again, repeating myself. This is the way I understood that the law allows me to get my defence prepared. I’m not hurting nobody. I may be using them in a little way, but, hey, you know what, I’m not committing no crime either.

I’ve got to do what I’ve got to do in the world, which isn’t the way that it ought to be or should have been for so many times, unnecessarily prosecuting and killing – or persecuting needless people who are so caught up in a hamster model that they can’t even think too far ahead. So, again, not losing my train of thought. [ 36 ] In light of the need to do an accident reconstruction report, it was specifically agreed between Mr. Sangha and Sintra that the preparation of the biomechanical report would be deferred until after the accident reconstruction report was done.

Sintra Engineering withdrew before doing the biomechanical report, and did not charge fees for doing something that it did not do. In light of its position that it was entitled to terminate the relationship, it argues that it is not liable for not doing something that was entitled to decline to do. [ 37 ] In the revision process, some of the revisions resulted from Mr. Sangha’s request to change some of the wording, such as changing the description of the loss of a bumper cover from “broke away and was missing” to saying that it was “torn from [his] BMW”.

He made other requests as well, and they appear to be making some corrections to the previous draft. It is clear that Mr. Sangha was reviewing the draft reports very carefully. [ 38 ] Sintra Engineering argues that there are no issues of credibility. The company’s argument for

summary dismissal is based entirely on Mr. Sangha’s own records that demonstrate what happened, including various admissions that he made along the way, which are: (

a) that he acknowledges being told that the opinion would not help his case against the Superintendent; (

b) that he was told the injuries were transient; (

c) that he did not know how the accident actually occurred; (

d) that the changes that he had requested that Sintra Engineering include had been accepted, or acquiesced to (other than his request to include the sketch of the trajectory that was known by the company to be wrong), and they did not change Sintra Engineering’s findings about how the accident occurred; (

e) that he would only instruct the biomechanical reports preparation after the accident reconstruction report was complete; and (

f) that the first report looked good. [ 39 ] In his evidence given in the claim against the Superintendent, Mr. Sangha had testified that he thought he had spun in the middle, and that his car ended up facing south, which is what Sintra Engineering had concluded. [ 40 ] In

summary, the company’s position is that it did the job in accordance with his instructions until it became apparent that there were ethical reasons to withdraw, and it was entitled to do so based on the terms set out in the letter agreement. [ 41 ] Accordingly, Sintra argues that there is no merit to the claim, and it should be dismissed summarily. Mr. Sangha’s Submissions [ 42 ] Mr. Sangha’s brief sets out these reasons why

summary dismissal should not be granted: (

a) The issues are unsettled, complex, or intertwined with disputed facts where evidence must be weighed; (

b) There was reliance on Sintra to provide a Bio-Mechanical Report once the reconstruction report was completed (the investigation of collision dynamics and injuries was relayed on March 12, 2014); and (

c) There may be insufficient evidence to grant the judgment in a

summary manner, but the case could be proven at a full trial with viva voce evidence. [ 43 ] Mr. Sangha’s agreement with Sintra Engineering was for them to do a biomechanical report. He does not dispute that the scope of work expanded, but that was the reason for retaining the engineers in the first place. The company did not do it, and it stopped work before even beginning it. That has left him in the lurch with the Superintendent, because he cannot get his personal injury case set down for trial until he provides the expert reports that he will need to present in order to argue his case. [ 44 ] In Mr.

Sangha’s January 7, 2015 email he asserted that the firm “had already completed all the new Bio Mechanical investigation (as well as were fully paid for those services) back in March 2014.” However, the notes in the file from April 3, 2013 say that the work was wasted because of the change in evidence: Report was almost done and it is a lot of waste of time as it is not valid anymore. Client should have given this valuable evidence long before. [ 45 ] Mr. Sangha argues that Sintra Engineering has made it clear that it was always ready to do the biomechanical report. Internal

emails show that the engineer had reported to Sintra’s upper level of management that he was willing to prepare the report if so instructed, although he no longer wanted to be the main contact with Mr. Sangha, reflecting what clearly appears to have been a loss of trust. [ 46 ] Mr. Sangha argues that the right to terminate does not apply where he simply did not get what he contracted for in the first place. The entire objective from the outset was to obtain a biomechanical report, the engineering company had agreed to do that, and then declined. There had been no revision to that original letter agreement.

Although there was a later understanding that Sintra Engineering would first have to do an accident reconstruction report, there was no revision to the basic original agreement. [ 47 ] Mr. Sangha points out that he has never disputed the findings that Sintra Engineering made. He has accepted that it was always up to the experts to decide whether to include any additional appendix or not.

The thrust of this submission is to the effect that the loss of trust was misplaced. [ 48 ] Furthermore, he argues that there were some errors in the expert report provided by Sintra’ competitor which stated in effect that Sintra Engineerings’ work was in accordance with a reasonably competent engineering firm’s obligations in the circumstances. [ 49 ] He argues that all of these things require a trial. [ 50 ] In oral argument, Mr. Sangha’s counsel focused on the assertion that Mr.

Sangha’s requests for changes were not unreasonable, and were not intended to change Sintra Engineering’s opinion. [ 51 ] For example, in an email of August 11, 2014, Mr. Sangha was assured that all of the information he had been provided would be referenced in the report, and pictures would be included. However, when the first draft was provided, it did not include, as an appendix, his October 28, 2002 hand written statement. He wanted it added. That first draft did reference in some detail his October 28 statement in the text of the report.

Sintra Engineering agreed to add as an appendix, and in all subsequent drafts it was included. [ 52 ] Mr. Sangha sees this as fixing an error, because his understanding of “referencing” his notes meant attaching a copy of them. [ 53 ] Another example of a change seems to be some confusion about some details in the report. The accident occurred before the EMS were called at 12:56 PM on October 28, 2002.

However, the drafts of the report have repeated references to October 25, not October 28, and the assertion that the accident occurred at 1:20 PM or 1:30 PM. [ 54 ] However, those incorrect time and date references were embedded in the police report (October 25 at 1:20 PM ), and a witness statement (at 1:30 PM ).

Sintra Engineering had clearly understood when the accident took place, as set out in its narrative, but references to the police report and witness statement described them properly – with the erroneous details. [ 55 ] In the first draft Sintra Engineering did not mention the 12:56 PM EMS call, and its explanation was that the precise time of the accident, and the lengthy delay before the police arrived on the scene, were irrelevant to their opinion. Ultimately, the EMS call was referenced in a later draft. [ 56 ] Mr. Sangha wanted the weather report included. Ultimately, it was attached as

Schedule “C” . [ 57 ] Another example is a detail about how an aspect of the damage was not described exactly to Mr. Sangha’s preference. The word “slightly” had not been included. [ 58 ] From his perspective, Mr. Sangha believed that he found himself repeatedly correcting errors in the reports, or trying to. However, the changes that he wanted made do not appear, for the most part, to be correcting errors made by Sintra Engineering. Sintra had not promised to attach all documents as appendices; the company had said they would be referenced. Mr. Sangha apparently misunderstood this.

For the most part, the engineers acceeded to his requests to small wording changes and the attachment of schedules. [ 59 ] Counsel for Mr. Sangha also focused on the assertion that Mr. Sangha did not use abusive language or make threats to Sintra Engineering. [ 60 ] While it is true that there is no evidence of abusive language, the final communications from Mr.

Sangha involved not only threats of legal proceedings (arguably, not offensive by themselves) but also threats of taking his complaint to the media. [ 61 ] The overall impression is that although there may have been some corrections or errors (for example, six photos, not 12) for the most part the fact that there were five drafts reflected Mr. Sangha’s desire to dictate both the form and content aspects of the form.

His request to include a sketch of a trajectory that Sintra Engineering had concluded was wrong appears to have been the “last straw” for Sintra. [ 62 ] His final demand actually occurred after Sintra had terminated the relationship. Mr. Sangha then insisted in his January 13, 2015 communication that he had always maintained that his vehicle had struck the sign in a certain way. He wanted the trajectory “corrected” to reflect this. [ 63 ] However, that assertion is demonstrably not true.

The October 28, 2002 hand written note that he made the day of the accident, which was referenced clearly in the first draft of the accident reconstruction report as well as in all subsequent drafts and which was attached to the second and subsequent drafts, stated that he was not clear how he had struck the sign. [ 64 ] What seems to have happened is that in the 13 years since the accident Mr. Sangha’s memory as to this detail had changed.

But his assertion of this – after approving this particular detail of the Sintra Engineering report through five drafts over a period of months, all reviewed carefully by him – is troubling. It brings into clarity his desire to dictate to the engineers details that they could not agree with. It tends to colour what had happened before Sintra Engineering terminated the relationship.

Fundamental Breach [ 65 ] His counsel asserted that there had been a fundamental breach by Sintra Engineering, since the fundamental aspect of the retainer was to provide a biomedical report and the company had ultimately declined to do that. He asserts a right to performance, citing Hunter Engineering Co v Syncrude , 1991 S.C. R. 426.

He asserts that due to Sintra Engineering’s termination of the services he has been deprived of substantially the whole benefit that he was to obtain from the contract. [ 66 ] Therefore, he argues that he is entitled either to the report that Sintra Engineering contracted to give him, or alternatively damages in compensation. He argues that this claim should not be dismissed summarily. [ 67 ] But Sintra Engineering argues that he was not deprived of the opportunity of getting a biomechanical report from another engineering firm.

In a case involving a fundamental breach of contract, damages are normally awarded substantially on the basis of the cost of obtaining the service, or product, from another source. The “deprivation” in the case law refers to the defendant’s failure or refusal to perform, not some actions that have forevermore prevented the plaintiff from getting performance elsewhere. [ 68 ] Here, Sintra points out that Mr. Sangha can obtain the services of another engineer. He had actually obtained a biomedical report in relation to a different incident, from another engineering firm.

Analysis [ 69 ] In this circumstance, in my view the basic claim is for breach of contract and it is easily resolved. [ 70 ] The Court of Appeal of Alberta has told us, in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 at paragraph 47 , that the proper approach to

summary dispositions, including

summary judgment, is as follows: The proper approach to

summary dispositions, based on the Hryniak v Mauldin test, should follow the core principles relating to

summary dispositions, the standard of proof, the record, and fairness. The test must be predictable, consistent, and fair to both parties. The procedure and the outcome must be just, appropriate, and reasonable. The key considerations are:

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?

b) Has the moving party met the burden on it to show that there is either “no merit” or “no defence” and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication.

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party’s case, by identifying a positive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial,

summary disposition is not available.

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute. To repeat, the analysis does not have to proceed sequentially, or in any particular order. The presiding judge may determine, during any stage of the analysis, that

summary adjudication is inappropriate or potentially unfair because the record is unsuitable, the issues are not amenable to

summary disposition, a

summary disposition may not lead to a “just result”, or there is a genuine issue requiring a trial. [ 71 ] The evidence is substantial, and it appears to be complete. As stated in Weir-Jones , each party is to put their best foot forward on a

summary judgment application, so I can assume that there is not more communication between the parties that has not been identified. [ 72 ] Mr. Sangha retained Sintra Engineering to provide a biomechanical report. It was found early on that the scope of the services had to be changed to provide an accident reconstruction report first. The instructions to provide a biomechanical report were put “on hold”. [ 73 ] The agreement expressly allowed either party to terminate the agreement on notice.

Sintra Engineering ultimately did that. [ 74 ] It may be that termination under the agreement required that it be done in good faith, and not capriciously. However, I am not called upon to decide that. [ 75 ] The evidence here is abundantly clear that Sintra Engineering found there to be a gulf in the trust between it and Mr. Sangha. There was a reasonable basis for reaching this conclusion, for the following reasons, which, although they might not have been sufficient individually, they were sufficient on a cumulative basis: (

a) he insisted that the engineers include in the report appendices that they believed were not necessary; (

b) he insisted they include an appendix that they believed was at best misleading and therefore should not be in the report; (

c) he had requested picayune wording changes that became of some concern, although they agreed to make those changes; and (

d) when they began to resist his requests, he threatened not only to sue but to take the matter public. [ 76 ] In addition, after they terminated the relationship, he asserted things about the motor vehicle accident that were clearly incorrect.

[ 77 ] A trial expert must be independent from his client. He or she is expected to give an opinion that the expert is qualified to give, not simply put into words the opinion that the client wants. An expert who agrees to include in a written opinion details or assertions that have been dictated by the client, and do not reflect the expert opinion, runs the risk of significant embarrassment and cross-examination at trial, and possibly significant damage to the expert’s professional reputation. [ 78 ] In these circumstances, the decision to rely on the right to terminate was made reasonably.

The company wrote off the last few months of its billable time in order to avoid conflict, in an attempt to err in Mr. Sangha’s favour. Conclusion [ 79 ] In the result, I conclude that there is no merit to the claim, and the action is dismissed. [ 80 ] If counsel is unable to agree upon costs, they may make arrangements to address the Court, provided they do that within 45 days of the release of these reasons. Heard on the 14 th day of October and the 8 th day of November, 2019. Dated at the City of Calgary, Alberta this 9 th day of December, 2019. A.R. Robertson, Q.C. M.C.C.Q.B.A.

Appearances: Nabeel Peermohamed Brownlee LLP for the Applicant (Defendant) Sintra Engineering Inc. Giva Balasingam Shim Law for the Respondent (Plaintiff)