Tchir v King, 2021 ABQB 393

Court of Queen’s Bench of Alberta Citation: Tchir v King, 2021 ABQB 393 Date: 20210518 Docket: 1803 12086 Registry: Edmonton Between: Casey C. Tchir Appellant - and - Barry M. King, Vincent Tong, Strathcona Law Group, Barry M. King Professional Corporation Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice Susan L. Bercov _______________________________________________________ I. Introduction [ 1 ] Mr. Tchir appeals a Master’s decision dismissing his action due to expiry of the limitation period and because the Master found the parties reached a settlement. [ 2 ] Mr. Tchir argues that the Master erred:

a. in failing to find that the limitation period was suspended, as he was a person under disability; and b. in finding that the action was settled. [ 3 ] For the reasons that follow I dismiss the appeal. II. Standard of Review [ 4 ] An appeal from a decision of a Master to the Court of Queen’s Bench is a de novo hearing. The standard of review is correctness: Bahcheli v Yorkton Securities Inc. , 2012 ABCA 166 at para 3 . III. The

Summary Judgment Test [ 5 ] The test for granting

summary judgment is found in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd , 2019 ABCA 49 ( Weir-Jones) at para 47 : 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. [ 6 ] In Hannam v Medicine Hat School District No. 76 , 2020 ABCA 343 ( Hannam ) the Court of Appeal offered guidelines for applying the Weir-Jones test. Key points from the majority decision at paras 147 to 161 are: • First, this

interpretation allows a

summary judgment court to make contested findings of material facts. • Second,

summary judgment courts should not be reluctant to make material fact findings. • Third, before a

summary judgment court resolves a material factual dispute, it should ask if it constitutes a genuine issue requiring a trial. • The “no genuine issue” concept no longer measures the merits of the parties’ positions. It now concentrates on procedural fairness. There will be no genuine issue when the judge is able to reach a fair and just determination on the merits. This will be the case when the process: (1) allows the judge to make necessary fact findings; (2) where the judge is able to apply the law to the facts; and (3) the

summary process is a more expeditious and less expensive way to a just result. IV. History of the Action [ 7 ] Mr. Tchir relies on his Affidavits filed October 15, 2018 and November 30, 2020. [ 8 ] The Respondents rely on the Affidavit of Vincent Tong filed June 21, 2018 and the Affidavit of Nicole Sahrhadi filed October 9, 2019. [ 9 ] The following facts are not in dispute: • In 1997, Mr. Tchir was injured in an accident when a City of Edmonton snow plow struck Mr. Tchir’s truck from behind. • Mr.

Tchir commenced a personal injury action (“Personal Injury Action”) to recover damages for his injuries. • In 2006, Mr. Tchir retained the Respondents to represent him in the Personal Injury Action after his previous counsel, Miller Thompson LLP, ceased to act. • On April 23, 2008, the Personal Injury Action was settled at a mediation. • On April 21, 2010, Mr. Tchir commenced an action against the Respondents (“2010 Statement of Claim”). The 2010 Statement of Claim alleges the Respondents were negligent in representing Mr. Tchir in the Personal Injury Action.

• On April 12, 2018, Mr. Tchir served the 2010 Statement of Claim on the Respondents along with an application to extend the time for service of the 2010 Statement of Claim. • On April 19, 2018, Master Schlosser dismissed Mr. Tchir’s application to extend the time for service of the 2010 Statement of Claim. Master Schlosser found that the application was not within the original period when the 2010 Statement of Claim was valid and that the circumstances did not permit renewal after the fact based either on a mistake about service or extraordinary circumstances.

Master Schlosser’s decision was not appealed. • On June 14, 2018, Mr. Tchir commenced this action by filing a new Statement of Claim against the Respondents (“2018 Action”). The 2018 Action alleges negligence in the manner in which the Respondents represented Mr. Tchir in the Personal Injury Action. • On September 13, 2018, the Respondents filed an application for

summary dismissal of the 2018 Action. • The application for

summary dismissal was adjourned to allow Mr. Tchir to retain counsel and file an Affidavit. • By November 29, 2018, Mr. Tchir retained counsel, Ms. Hutchinson, to represent him. Ms. Hutchinson asked for and was granted additional time to prepare an Affidavit in response to the

summary dismissal application. No Affidavit was provided. • On April 29, 2019, Ms. Hutchinson advised the Respondents’ counsel that Mr. Tchir was willing to discontinue the 2018 Action on a without costs basis and provide a release. • On May 1, 2019, the Respondents advised Ms. Hutchison that they would agree to a discontinuance of the 2018 Action on a without costs basis along with a release. • On May 31, 2019, the Respondents provided a Release and discontinuance to Ms. Hutchinson. The release and discontinuance were never executed by Mr. Tchir. • On July 12, 2019, Ms.

Hutchison advised the Respondents that she longer represents Mr. Tchir. • On July 16, 2019, Mr. Tchir wrote to the Respondents purporting to withdraw the offer due to a confidentiality clause in the release that Mr. Tchir disagreed with. • On November 12, 2019, Master Schlosser granted the Respondents’ application for

summary dismissal. Master Schlosser found that the action was statute barred and that the action was settled. • On December 6, 2019, Mr. Tchir filed an Amended Notice of Appeal of Master Schlosser’s Order, returnable in Chambers on January 22, 2020. • On January 22, 2020, Justice Feth granted an Order setting the hearing of the appeal for December 17, 2020. The Order also directs Mr. Tchir to provide to the Respondents all medical documents he intends to rely on by June 17, 2020. V. The Law Is the 2018 Action Statute Barred? [ 10 ]

Section 3 of the Limitations Act , R.S.A. 2000, c. L-12 (“ Act ”) provides: 3(1) Subject to subsections (1.1) and (1.2) and sections 3.1 and 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose, whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim.

[ 11 ]

Section 5 of the Act provides: 5(1) The operation of the limitation periods provided by this Act is suspended during any period of time that the claimant is a person under disability.

(2) The claimant has the burden of proving that the operation of the limitation periods provided by this Act was suspended under this section. [ 12 ] A “person under disability” is defined in s. 1 (

h) of the Act as follows: (h) “person under disability” means (

i) a represented adult as defined in the Adult Guardianship and Trusteeship Act or a person in respect of whom a certificate of incapacity is in effect under the Public Trustee Act , or (ii) an adult who is unable to make reasonable judgments in respect of matters relating to a claim; [ 13 ] The following legal principles apply to the determination of whether Mr. Tchir is a person under disability: a. The burden of proving that he is a person under a disability rests with Mr. Tchir: WP v Alberta , 2014 ABCA 404 (WP) at para 31 ; b. The question I must answer in this case is whether Mr.

Tchir was an adult who was unable to make reasonable judgments in respect of matters relating to his claim during any part, or all, of the period following the accident. If he was, the commencement of the limitation period stands suspended during those periods: Gayton v Laca see , 2010 ABCA 123 ( Gayton ) at para 37 ; c. Disability under s 5 of the Act means more than injured or unwell: Martin v General Teamsters, Local Union No. 362 , 2011 ABQB 412 ( Martin ) at para 57 ; d.

There is a distinction between being unable to work and unable to make reasonable decisions regarding a claim: WP v Alberta (No.1) , ( WP No. 1 ) 2013 ABQB 295 at para 83 ; and e. The receipt of government payments does not necessarily prove that a person is unable to make reasonable judgments: W.A.R. v Alberta (Attorney General) , 2006 ABCA 219 ( W.A.R .) at para 12 . VI. Analysis [ 14 ] The 2018 Action arises from the settlement of the Personal Injury Action. In particular, Mr.

Tchir alleges that the Respondents were negligent in consulting and retaining experts and advising him regarding his injuries. [ 15 ] The Personal Injury Action was settled on April 23, 2008. Just before the expiry of two years from the date of settlement, on April 21, 2010, Mr. Tchir filed the 2010 Statement of Claim alleging the Respondents were negligent in advising him regarding his injuries and in retaining experts to prove his injuries. It is clear from the filing of the 2010 Statement of Claim that at least by April 21, 2010, Mr.

Tchir had the requisite knowledge required under s 3 of the Act to start the limitation period running. [ 16 ] The 2010 Statement of Claim is gone due to the fact that it was not served in time. [ 17 ] This action, the 2018 Action, was commenced on June 14, 2018. [ 18 ] The time between April 21, 2010 until this action was commenced, June 14, 2018, exceeds the two-year period under s 3 of the Act . The result is that Mr.

Tchir’s 2018 Action is statute barred unless he can establish that the limitation period was suspended in whole or in part during the period April 21, 2010 to June 14, 2018, because he was unable make reasonable judgments in respect of matters relating to his claim. [ 19 ] The Respondents rely on several acts by Mr. Tchir demonstrating an ability to make reasonable judgements regarding his claim both before and after April 2010. These include: a. Between June 2008 and 2010, he attended at the Respondents’ office to obtain parts of his file. b.

In June 2008, he attended at Land Titles to have property transferred into his name from June Tchir. c. In June 2008, he instructed the Respondents to apply to have Miller Thomson LLP’s accounts reviewed. d. In 2008, he commenced an action against Miller Thomson LLP (Miller Thomson Action) relating to their handling of the Personal Injury Action. After commencing the Miller Thomson Action, he retained the Respondents to represent him. The Miller Thomson Action settled in 2012. e. In April 2010, he filed a Statement of Claim for professional negligence against the Respondents. f. In 2013, Mr.

Tchir purchased a 160-acre parcel of land and executed a mortgage for $315,000,00. Between 2013 – 2014, he had a subdivision plan developed in relation to this parcel. g. Between 2014 – 2015, he appeared before the Smokey Lake County Council several times as a developer to make representations

regarding a multimillion-dollar project. h. Between filing of the 2010 Statement of Claim and the settlement of the Miller Thomson Action, the Respondents were not notified of the 2010 Statement of Claim. Yet, Mr. Tchir continued to provide instructions to the Respondents regarding his claim against Miller Thomson LLP. i. In April 2018, Mr. Tchir went to the Respondent’s offices to personally serve the 2010 Action. j.

He attended Master’s Chambers and made representations, without counsel, in April, June and October 2018. [ 20 ] I conclude that the Respondents have met their burden at the threshold level to prove on a balance of probabilities that during the relevant time Mr. Tchir was not unable to make reasonable judgments regarding matters relating to his claim. [ 21 ] Mr. Tchir must put his best foot forward and demonstrate from the evidence before the Court that there is a genuine issue requiring a trial. Mr.

Tchir relies on the evidence contained in his Affidavits of October 15, 2018 and November 30, 2020 and two documents appended to his brief filed December 18, 2019: a letter from Leslie Keith indicating she assisted Mr. Tchir in preparing his materials for the application and a list of medications. [ 22 ] Mr. Tchir argues that there is evidence in his Affidavits establishing his disability. In particular, his October 15, 2018 Affidavit contains the following evidence: a. A report from Dr. Keegan dated February 15, 2007. In the report, Dr. Keegan refers to an assessment of Dr. Paniak indicating Mr.

Tchir’s reading level was at a Grade 7 level and Dr. Keegan’s assessment that it was at a Grade 6 level. Dr. Keegan also states that Mr. Tchir’s performance on the Proverb Test exhibited significant impairment. Overall, Dr. Keegan concludes that Mr. Tchir is not likely malingering, there have been significant changes in his functioning and work capabilities after the accident and the situation is likely permanent. b. A decision of the Pension Appeals Board where the central issue on appeal was whether Mr. Tchir continues to suffer from disabilities rendering him incapable of pursuing gainful employment.

The decision concludes that since 1997 Mr. Tchir has suffered pain and cognitive deficiencies from which he is unlikely to recover and which have rendered him incapable of gainful employment. c. A report from Dr. Hoffman dated March 5, 2004 prepared for Canada Pension Disability. In his report, Dr. Hoffman refers to his file review of reports of several other doctors including Dr. Kistiuk, Dr. Pokroy, Dr. Ellaurie, Dr. Pokroy, Dr. Eliuk and Dr. Blackan. Dr. Hoffman notes that some of these doctors indicate that Mr. Tchir has difficulty with concentration, attention, problem solving and decision – making.

In his report, Dr. Hoffman concludes that Mr. Tchir does not have the cognitive ability to return to gainful employment. No improvement in his cognitive function is expected. d. A letter from Dr. Ellaurie, Mr. Tchir’s family doctor, dated September 11, 2018 stating: This serves to confirm that this patient is known to me for close to thirty years. He was involved in a serious motor vehicle accident in March 1997. Since then he has been severely disabled through traumatic brain injury. He has not worked since then. He has constant neurological symptoms.

I believe that he was not compensated properly for the injury suffered. I support re-opening his case. [ 23 ] In his Affidavit of November 30, 2020, Mr. Tchir attaches the following exhibits regarding the issue of his disability: a. A letter from Leslie Keith, the St. Paul court librarian, indicating that she assisted him in preparing his claims by typing his material correctly and helping him to organise his information as he could not complete the tasks without help. b. A statement from Canada Pension Plan Benefits indicating Mr. Tchir is receiving disability benefits. c.

A letter from a relative, June Tchir, dated June 12, 2004 to the Pension Appeals Board indicating that that Mr. Tchir receives assistance from his family in running the family farm. [ 24 ] In his brief for the application filed December 18, 2019, Mr. Tchir includes his medication records. [ 25 ] Mr. Tchir concedes that he erred in not including in his material before Master Schlosser the reports from the doctors referred to in Dr. Hoffman’s report dated March 5, 2004 that was attached to his October 15, 2018 Affidavit.

However, he argues that the evidence of the doctors and the Canada Pension evidence in the Affidavits establishes that he was a person under a disability. Further, his evidence shows that he required assistance from his family and the court librarian. [ 26 ] There are several difficulties with Mr. Tchir’s evidence in terms of raising a genuine issue requiring a trial. The first is that much of the evidence Mr. Tchir relies on is not properly admissible.

As noted by Justice Graesser in AF v Alberta , 2020 ABQB 268 at paras 123 and 124 , a determination of disability within the meaning of the Act requires evidence from a qualified medical expert. Further, where the application is a final application, such as

summary dismissal, the evidence must be presented in affidavit form and not simply by attaching a letter from a doctor or psychologist to the Appellant’s affidavit. [ 27 ] There are no affidavits from a qualified medical expert. Mr. Tchir’s Affidavits attach reports from doctors which are hearsay. Further, Mr. Tchir relies on references in Dr. Hoffman’s report to opinions from other doctors, which is double hearsay. [ 28 ] Apart from problems with the admissibility of Mr. Tchir’s evidence, the second difficulty is that the evidence Mr. Tchir relies on does not speak to the issue of whether Mr. Tchir was disabled within the meaning of the Act . The evidence Mr. Tchir relies on is

evidence establishing his inability to work for the purpose of receiving disability benefits and evidence from his Personal Injury Actionto establish his symptoms, injuries, causes of the injury and entitlement to damages, including loss of income. [29] The test for a person under disability within the meaning of the Act, is not the same as disability for the purpose of pensionbenefits or motor vehicle accident damages. The test under the Act is whether Mr.

Tchir was unable to make reasonable judgments inrespect of matters relating to his claim during any part, or all, of the period following the accident: Gayton, para 37. The case law is clearthat disability means more than injured: Martin, para 57. There is a difference between receiving government payments and beingunable to work and being unable to make reasonable decisions regarding a claim: WP No 1, para 83; W.A.R., para 12. [30] With the exception of Dr. Ellaurie’s letter of September 11, 2018, Mr. Tchir’s medical and pension evidence all relates to theperiod before 2010. None of the evidence, including Dr.

Ellaurie’s letter of September 11, 2018, addresses the critical issue before me ofwhether Mr. Tchir was unable to make reasonable judgments in respect of matters relating to this action between 2010 – 2018. [31] Mr. Tchir relies on The Queen v Beauregard, (SCC), [1986] 2 S.C.R. 56 (Beauregard) and Gayton. InGayton, the Court of Appeal allowed the action to continue where the evidence was sparse. Mr. Tchir argues he should receive equalityof treatment and should be afforded the same fairness as the parties in these cases. [32] Beauregard has no relevance to the issues in this case. Gayton is distinguishable.

The test for

summary judgment changedafter Gayton. In Gayton, there was at least some medical evidence that the Plaintiff suffered from a disability before the action wascommenced that would explain the delay in filing the action. In this case, there is no medical evidence that explains why Mr. Tchir wasable to file the 2010 Statement of Claim but was unable for almost 8 years to serve the 2010 Statement of Claim resulting in that actionbeing struck and the filing of the 2018 Action. [33] In terms of fairness, Mr. Tchir has had a considerable amount of time to obtain evidence supporting his position that he meetsthe definition of “person under a disability” in the Act. The

summary judgment application before the Master was adjourned to allow Mr.Tchir to retain counsel and file an additional affidavit. Mr. Tchir did retain counsel but no additional affidavit was provided. Mr. Tchirincluded in his material the transcripts from the application before Master Schlosser. That transcript provides directions as to whatevidence Mr. Tchir requires. After the application before Master Schlosser Justice Feth set a deadline of June 17, 2020 for Mr. Tchir toprovide all medical documents he intends to rely on. Mr. Tchir provided no further medical evidence. I am satisfied that it is possible tofairly resolve the issue on a

summary basis. A trial will not produce a more complete factual record than already exists. I agree with theMaster that the action is barred by the Act. Did the Parties Settle the Dispute? [34] Mr. Tchir also appeals Master Schlosser’s decision dismissing the action on the basis that the parties concluded a settlementof the 2018 Action. [35] This issue can also be resolved in a

summary manner without the need for a trial. [36] The facts are not in dispute. On May 1, 2019, Mr. Tchir’s lawyer at the time, Ms. Hutchison, wrote to the Respondentsconfirming that the Respondents agree to a discontinuance of the action on a without costs basis and confirming that the Respondentsrequire an appropriate form of release. [37] The Respondents provided a discontinuance and release to Ms. Hutchison. [38] On June 12, 2019, Ms. Hutchison sent the form of release to Mr. Tchir. She indicates the wording of the Release is quitestandard and has no concerns with it.

However, she does express some concerns with the non-disclosure clause in the release which, inher opinion, puts Mr. Tchir at risk of a future claim if he says something derogatory about the Respondents. [39] There is no evidence of any communications between the parties negotiating the terms of the Release. [40] On July 12, 2019, Ms. Hutchison writes to the Respondents advising that she no longer acts for Mr. Tchir. [41] On July 16, 2019, Mr. Tchir sends an email to the Respondents withdrawing his offer to settle.

His email is clear that he iswithdrawing his offer because he does not agree with the terms of the non-disclosure clause in the release. [42] I am satisfied that there was an offer made by Mr. Tchir’s counsel to settle the 2018 Action by a discontinuance, withoutcosts, and a release. That offer was accepted by the Respondents. [43] There is no suggestion in the evidence or Mr.

Tchir’s arguments that any of the circumstances for setting aside a settlementagreement set out by the Court of Appeal in Lofthaug v Canadian Immigration Specialists Ltd., 2011 ABQB 609 at paras 34 and 35,apply in this case. [44] The issue raised by the facts is whether the settlement agreement lacked certainty on any essential term. A settlementagreement, like any other contract, is not an enforceable agreement unless there is certainty on the essential terms. [45] Mr. Tchir argues that the terms of the release were not agreed upon and are essential terms of the settlement agreement. [46] In Buterman v St.

Albert Roman Catholic Separate School District No. 734, 2017 ABCA 196, the Court of Appealdistinguishes between formation of a contract and completion of the settlement documentation. At paragraph 31, the Court of Appealprovides the distinction by reference to the following paragraphs from the British Columbia Court of Appeal decision in Feiguth vAcklands Ltd (1989), (BC CA), 37 BCLR (2d) 62: [35] In these matters it is necessary to separate the question of formation of contract from its completion. The first question is whether

the parties have reached an agreement on all essential terms. There is not usually any difficulty in connection with the settlement of a claim or action for cash. That is what happened here and as a settlement implies a promise to furnish a release and, if there is an action, a consent dismissal unless there is a contractual agreement to the contrary, there was agreement on all essential terms. [36] The next stage is the completion of the agreement. If there are no specific terms in this connection either party is entitled to submit whatever releases or other documentation he thinks appropriate.

Ordinary business and professional practice cannot be equated to a game of checkers where a player is conclusively presumed to have made his move the moment he removes his hand from the piece. One can tender whatever documents he thinks appropriate without rescinding the settlement agreement. If such documents are accepted and executed and returned then the contract, which has been executory, becomes executed.

If the documents are not accepted then there must be further discussion but neither party is released or discharged unless the other party has demonstrated an unwillingness to be bound by the agreement by insisting upon terms or conditions which have not been agreed upon or are not reasonably implied in these circumstances. [ 47 ] In this case, the evidence is clear that the parties reached agreement on all essential terms. The 2018 Action was to be discontinued, without costs. Mr. Tchir was to provide an appropriate form of release. [ 48 ] The next stage was the completion of the agreement.

As there is no evidence that the parties discussed what would be an appropriate form of release, either party could tender a release they considered appropriate. Neither party is released or discharged until after the parties negotiated what is appropriate and one party is insisting on terms not agreed to or not reasonable in the circumstances. [ 49 ] After the oral hearing Mr. Tchir provided an email arguing that as the communication with the offer was marked “without prejudice” it cannot be used in evidence.

Documents marked “without prejudice” that are exchanged for the purpose of settlement can be used in evidence to prove that a settlement was reached. [ 50 ] In this case, there is no evidence that Mr. Tchir or his lawyer responded to the Respondents’ proposed form of release. There is no evidence of any negotiations regarding the terms of the release. Accordingly, Mr. Tchir was not discharged or released from the settlement agreement when he purported to withdraw his offer. I find that Master Schlosser was also correct in concluding that the

summary dismissal application should be granted as the parties settled the 2018 Action. VII. Conclusion [ 51 ] I find that Master Schlosser’s decision granting the

summary dismissal application is correct. This is the type of case described by the Supreme Court in Hryniak v Mauldin . The evidence and the law are such that I am able to make the necessary findings of fact and apply the law to those facts to achieve a just result. A trial is not necessary to determine whether Mr. Tchir was disabled within the meaning of the Act and whether the 2018 Action was settled.

Accordingly, I dismiss the appeal. [ 52 ] If the parties are unable to agree on costs, they may provide me with brief written submissions, no more than two pages, within 60 days following the publication of this judgment. Heard on the 1 st day of April, 2021. Dated at the City of Edmonton, Alberta this 18 th day of May, 2021. Susan L. Bercov J.C.Q.B.A. Appearances: Casey Tchir, Self Represented Karen M. Herrington for the Respondents