Entlich v. Lambert, 2019 BCPC 142

Citation: Entlich v. Lambert 2019 BCPC 142 Date: 20190626 File No: 150158 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ARTHUR NEIL ENTLICH CLAIMANT AND: WILLIAM RORY LAMBERT a.ka. RORY LAMBERT and LAMBERT LAW CORP. DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L MROZINSKI Appearing on his own behalf: A. Entlich Counsel for the Defendants: S. Gares Place of Hearing: Victoria , B.C. Dates of Hearing: May 27, 28 and 29, 2019 Date of Judgment: June 26, 2019 I. Introduction [ 1 ] On February 19, 2010, Mr.

Arthur Entlich, was a passenger in the front seat of a vehicle driven by his wife, Danielle Laferrière, when the two were struck from behind by a pick-up truck. Although the damage to their motor vehicle was not obviously significant, both Mr. Entlich and Ms. Laferrière suffered injuries which did not resolve quickly. Slightly less than two years after the collision, they

hired the defendant, Mr. Rory Lambert, to represent them in their personal injury claim against the driver of the pick-up truck. [ 2 ] Mr. Lambert met with Mr. Entlich and Ms. Laferrière from time to time. His office received from them various email and other correspondence, obtained relevant available documents, saw them through their discovery, and agreed to trial dates. Unfortunately, due to unforeseen and tragic personnel changes at Mr. Lambert’s office, Mr. Entlich and Ms.

Laferrière did not learn until February 13, 2013 that their case was set for trial on April 22, 2013, and that a trial management conference was set for February 26. They were, they testified, left shocked by the news. Matters worsened when days later Mr. Lambert advised the couple of his considered view of the merit of their claims. He urged both to instruct him to enter into settlement negotiations with ICBC. [ 3 ] Mr. Entlich strongly disagreed with Mr. Lambert’s advice. He felt that Mr. Lambert’s view was ill informed given the absence of any medical-legal reports. Mr.

Lambert responded then, as now, that in light of the documented medical evidence he had, no such report would make a difference. At the material time, given his clients’ rejection of his legal advice, Mr. Lambert urged Mr. Entlich and Ms. Laferrière to seek new counsel. He told the couple he would advise the court at the trial management conference that new counsel would be retained, and in all likelihood would seek an adjournment of the April 22 trial date. [ 4 ] Mr. Entlich vehemently disagreed with this advice. He and Ms. Laferrière pressed Mr. Lambert to stay on as counsel, and Mr. Lambert agreed.

The parties then engaged in settlement discussions with ICBC, which proved unfruitful. Matters ended when Mr. Entlich tried, unsuccessfully, to renegotiate the parties’ contingency agreement. Following that, Mr. Entlich and Ms. Laferrière fired Mr. Lambert and settled their personal injury claim with ICBC on their own. II. Issues [ 5 ] Mr. Entlich maintains that but for Mr. Lambert’s failure to obtain a medical-legal report well before the April 22 trial date, his settlement with ICBC would have been much richer. Mr. Entlich submits that this failure constitutes professional negligence.

He seeks damages totalling the difference between his settlement and what he submits he would have received had such a report been available at the material time. [ 6 ] Alternatively, Mr. Entlich argues that Mr. Lambert breached his fiduciary obligation by not acting in Mr. Entlich’s best interest. In the further alternative, Mr. Entlich submits that Mr. Lambert’s management of his file constituted a breach of contract. In either case, Mr. Entlich seeks damages for emotional distress. [ 7 ] The question for this court is whether Mr. Entlich has proven, on balance of probabilities, any of his claims.

In regard to professional negligence, Mr. Entlich must show, on balance, that Mr. Lambert fell below the standard of care expected of a professional carrying on his practice. Proof of the standard of care is, in my view, a necessary pre-requisite. Even if such proof is made out, Mr. Entlich must also prove that but for the alleged negligence of Mr. Lambert, he would have obtained a much larger settlement from ICBC. [ 8 ] Similarly, in regard to the alleged breaches of contract and/or fiduciary duty, the question for this court is whether Mr.

Entlich has shown on balance that any act or failure to act on the part of Mr. Lambert constituted a breach of the solicitor/client relationship or contract. III. Background Mr. Entlich’s Injuries and Treatment [ 9 ] At the time of the motor vehicle accident in February, 2010, Mr. Entlich was 56 years of age and already suffering from health problems. Some of Mr. Entlich’s health issues are congenital, and some are related to a previous motor vehicle accident when the car Mr. Entlich was driving was struck in the right rear passenger seat. [ 10 ] Immediately after the February, 2010 collision, Mr.

Entlich worried most about his wife, Ms. Laferrière, who was momentarily dazed and confused. Police and ambulance attended at the scene and the couple were offered ambulance service which they declined. The vehicle itself, a 1986 Toyota Tercel, had some rear damage but was otherwise entirely driveable. Days after the collision, Mr. Entlich made some minor repairs to the car at his home. That fact was remarked upon by Ms. Harper (now Master Harper), former counsel for ICBC, who inferred from it that Mr.

Entlich’s injuries could not have been in any way significant. [ 11 ] Having declined ambulance service at the scene, the couple drove themselves to the nearby St. Anthony’s Medical Clinic (the “Clinic”). Notes from the Clinic indicate that Mr. Entlich reported being in a motor vehicle accident that day. He reported that he was feeling mild light-headedness and dizziness, that he felt pressure in this front facial region, and stiffness in his posterior and shoulders. Mr.

Entlich apparently also advised the writer of the clinical notes that he suffered from osteoporosis, and had suffered whiplash in a motor vehicle accident in 1998. [ 12 ] Mr. Entlich drove himself and Ms. Laferrière home from the Clinic. Although Ms. Laferrière took only three or four days off work, both testified that when she came home, she slept, leaving Mr. Entlich with responsibility for all of the household chores, and, in some respects, the care of his wife when she was at home and awake. The burden on Mr. Entlich was such, he later instructed Mr.

Lambert, as to contribute to the break-down of his marriage by January, 2013. [ 13 ] Although Mr. Entlich was in the care of family physician, Dr. Ian Gibson, for decades, he did not seek an appointment with Dr. Gibson after the collision. Rather, Dr. Gibson’s office contacted Mr. Entlich after receiving the notes from the Clinic. Thereafter, Mr. Entlich made a number of visits to Dr. Gibson regarding the injuries he maintains he suffered as a result of the collision in February, 2010. [ 14 ] For nearly two years after the collision, Mr. Entlich and Ms.

Laferrière corresponded with an adjustor at ICBC with a view to ultimately resolving their personal injury claim against the driver of the pick-up truck. In the course of that engagement, and for the purposes of settlement negotiations, ICBC sought and obtained a report from Dr. Gibson in the form of a CL19 Medical Report. As the

form states, it is the property of ICBC. As such, it was a document obtained by Mr. Lambert from ICBC pursuant to his FOI request after he had been retained by Mr. Entlich and Ms. Laferrière. [ 15 ]

Section C of the CL19 report is labelled “Diagnosis”. In that section, report writers are given the option to classify various injuries from Grade 1, being the mildest, to Grade 4, being the most severe. As Mr. Entlich conceded on cross-examination, he was diagnosed with a Grade 1 injury to his neck, upper back and lower back; the mildest form of injury. Mr. Entlich testified that, despite this, he continued to feel the effects of the collision for many years. At times, he experienced symptoms such as visual disturbances. His sleep disturbance continued, as did the soreness in his left shoulder.

His home life did not improve and his marriage ended, as I have noted. Other conditions such as his anxiety around driving decreased but overall some three years after the collision, Mr. Entlich was still not symptom free. [ 16 ] Mr. Entlich saw Dr. Gibson in February, May, July and October, 2010. Dr. Gibson’s notes of those visits documented in the “Motor Vehicle Accident Medical Report Form” set out all of Mr. Entlich’s reported symptoms. Dr. Gibson retired in December, 2010 and his records end as of October, 2010. However, despite having been taken on as a patient by Dr. Melling approximately a year later, Mr.

Entlich testified that he was very reluctant to use him. Mr. Entlich testified that he did not trust Dr. Melling to evaluate him as he had once performed surgery on Mr. Entlich while neglecting to do a proper pre-surgery physical. [ 17 ] Apart from consulting with Dr. Gibson about his injuries, Mr. Entlich also received physiotherapy treatment from Barbara Desjardins, who closed her practice in February, 2012. Mr. Entlich was subsequently treated by physiotherapist Andrew Grant from time to time. Mr. Lambert sought and obtained the records of both Ms. Desjardins and Mr.

Grant following a request for the same by ICBC at its discovery of the couple. Mr. Lambert’s Retainer and Conduct of the File [ 18 ] Mr. Entlich testified that as the two year limitation period for his personal injury claim was approaching, he found it harder and harder to reach the ICBC adjustor assigned to his claim. He suspected, he testified, that ICBC was hoping to run out the limitations clock so he and Ms. Laferrière would be rushed to settle. Feeling that they would not get a just settlement from ICBC, the couple decided to retain counsel.

Thus they began a lengthy process in which they interviewed a number of lawyers before deciding on Mr. Lambert. Mr. Entlich testified that Mr. Lambert struck him and his wife as being very good counsel. They were impressed that Mr. Lambert’s assistant took notes during their initial meeting, but what made the greatest impression was Mr. Lambert’s contingency fee agreement: in particular, that Mr. Lambert agreed not to charge his contingency fee on the amounts offered to the couple by ICBC before he was retained. In Mr. Entlich’s case, ICBC had offered to settle in the amount of $10,000. [ 19 ] Mr. Entlich and Ms.

Laferrière met with Mr. Lambert at his office on January 17, 2012. The next day, Mr. Lambert followed up with an email note addressed to “Art and Danielle”. In it, he outlined what steps he would take to further the litigation once retained to act. Mr. Entlich relies on this document as evidence of a promise made by Mr. Lambert to obtain a medical-legal report from Dr. Gibson, or some other practitioner. The letter states, in part, as follows: I confirm that once instructed to act, we will request a copy of your file from the ICBC adjuster and draft the Notices of Civil Claim for your review prior to filing.

We will then make a Freedom of Information and Protection of Privacy Act request which will allow us to obtain the entirety of ICBC’s file. We will canvass with Dr. Gibson whether he is in a position to write a medical-legal report for Art, or whether we should seek an Independent Medical Evaluation from another source… [ 20 ] Soon after his retainer, Mr. Lambert’s office did file the Notice of Claim, make the requisite demand for documents, and the FOI request for ICBC’s file on Mr. Entlich and Ms. Laferrière. In due course, ICBC appointed Ms. Harper as defence counsel. Mr. Lambert testified that he knew Ms.

Harper personally, in addition to having worked with her on many files. On behalf of her client, ICBC, Ms. Harper moved the file along. Discoveries were set down for November 28, 2012, and in October, 2012, the matter was set for trial, ultimately on the fast track list. [ 21 ] By letter dated November 5, 2012, Mr. Lambert’s office advised Mr. Entlich and Ms. Laferrière of the date for their Examination for Discovery, set for the 28 th of that month. The letter included some information regarding discoveries generally. On page two of the letter, Mr.

Lambert advised that while they were being examined by the opposing lawyer, he would be present to protect their rights and advise them of any questions that should not be answered. Having received this letter, Mr. Entlich and his wife were anxious to meet with Mr. Lambert. A meeting was then scheduled for November 26, 2012 at Mr. Lambert’s office. [ 22 ] Mr. Entlich came prepared for the meeting with a two page list of questions and observations.

He had a number of questions which included how he might testify regarding his symptoms, his prior medical condition, and how he might deal with the fact that he had never discussed his condition with Dr. Melling. Despite his preparation, Mr. Entlich felt the meeting was cut short. He and Ms. Laferrière were disappointed when Mr. Lambert advised that a junior lawyer, Ms. Martin, would attend their discovery with them. Nonetheless, they agreed, although Mr. Entlich took the position it was on condition that Mr. Lambert would spend that time on their file. To that end, Mr.

Entlich attempted during cross-examination to determine whether Mr. Lambert did work on his file while he was in discovery. Mr. Lambert denied making such a specific agreement. He had, he testified, his own reasons for asking Ms. Martin to sit in on the discoveries and it had more to do with assessing the credibility or “likeability” of the couple for the purposes of trial. [ 23 ] Mr. Entlich called Ms. Martin as a witness in his case. In my view, Ms. Martin, through no fault of her own, provided little if anything in the way of useful evidence. Mr. Entlich did attempt to elicit some hearsay evidence from Ms.

Martin regarding a comment alleged to have been made by Ms. Harper, but I upheld Mr. Gares objection to the admissibility of the alleged statement. Mr. Entlich asked Ms. Martin whether she recalled making any objections during his discovery. Ms. Martin could not recall any. [ 24 ] Ms. Martin was also asked to confirm whether she thought both Mr. Entlich and Ms. Laferrière did a good job on discovery and her view was that they had. Still, she testified, she was left with concerns about one of the couple’s claims. [ 25 ] Following another meeting at Mr. Lambert’s office, which Mr.

Entlich also felt was rushed and off topic, Ms. Laferrière left on

her annual vacation to Belize. After she returned, the couple fought when Ms. Laferrière advised that henceforth she intended to spend at least six months each year in Belize. In Mr. Entlich’s view, this catalysed the end of his marriage. Ms. Laferrière testified that she put forward the idea of living in Belize for six months a year as “a way to ask for a separation.” [ 26 ] By letter dated January 27, 2013, Mr. Entlich advised Mr. Lambert of the dissolution of his marriage (a matter which he ultimately attributed to the accident and for which he sought compensation from ICBC). In that same correspondence, Mr.

Entlich outlined a few other issues concerning his wife’s income tax and so forth. The parties then met at Mr. Lambert’s office on or about February 13, 2013, which is when the couple first learned of their impending trial date. [ 27 ] Mr. Entlich testified that shortly after the February 13 meeting, which he and Ms. Laferrière had found so discomfiting, he came home to find that Mr. Lambert had called Ms. Laferrière with news that ICBC had made a revised settlement offer. Mr. Entlich sent Mr. Lambert a lengthy email marked “without prejudice and confidential”.

In it, he outlined his case in some detail, as well as his concerns about the way in which the case was being handled. In particular, Mr. Entlich emphasized his concern that with the sudden trial notice, the case might not generate the types of awards he and Ms. Laferrière had been anticipating. This correspondence was followed up with another email letter dated February 20, 2013, wherein Mr.

Entlich questioned certain decisions made around the trial date, the fast tracking, what he perceived was his own poor performance in discovery, and the overall lack of information available to defence counsel from which to base an offer. [ 28 ] By email correspondence dated February 20, 2103, Mr. Lambert responded to each of these letters from Mr. Entlich. While he did not specifically address every one of the many points raised by Mr. Entlich, Mr. Lambert advised it was his considered view, based on 25 years of experience, and his knowledge of ICBC’s counsel and its adjustor, that the case for both Mr.

Entlich and Ms. Laferrière would be difficult if not impossible to prove, due largely to the diffuse nature of the clinical records that would be available. Mr. Lambert assured the couple that nothing flowed from the deadline for the production of expert reports having passed as he had spoken to defence counsel about the matter. Lastly, Mr. Lambert advised Mr. Entlich of his view of the value of Mr. Entlich’s claim for non- pecuniary damages; Mr. Lambert estimated it would be approximately $30,000. [ 29 ] In reply, Mr. Entlich instructed Mr.

Lambert to cancel the pre-trial conference, to stop any ongoing settlement negotiations with ICBC, and to apply for new trial dates at least two months beyond April 22. Mr. Entlich reiterated his firm view that the case was not yet ripe for settlement discussions in the absence of any medical-legal opinions. [ 30 ] On February 25, 2013, Mr. Lambert advised both Mr. Entlich and Ms. Laferrière that it was in their interest to retain new counsel as they had clearly lost confidence in his advice. Mr.

Lambert also advised the couple that he would attend the trial management conference the next day and tell the court that his clients were retaining new counsel, and that counsel would in all likelihood be seeking an adjournment of the trial date. Mr. Entlich and Ms. Laferrière replied to this correspondence from Mr. Lambert almost immediately stating that they would not voluntarily release him from his contingency agreement. They once again instructed Mr. Lambert not to attend the trial management conference. [ 31 ] This correspondence was followed up the next day by several phone calls between Mr. Lambert, Mr.

Entlich and Ms. Laferrière. Unbeknownst to Mr. Lambert and quite possibly Ms. Laferrière, Mr. Entlich was taping the calls. Mr. Entlich played the audio tapes at trial. In them, the parties can be heard discussing Mr. Lambert’s view of their case and their objections to his advice. Throughout, Mr. Lambert maintained his view that the case for both Mr. Entlich and Ms. Laferrière would not improve with a medical- legal report. Still, he eventually agreed to obtain a report from Mr. Grant while not resiling from his view that it would not make a difference. Mr.

Lambert testified at trial that he quickly regretted having acceded to his clients demands against his better judgment. [ 32 ] Both Mr. Entlich and Ms. Laferrière urged Mr. Lambert to continue working with them. While Mr. Lambert initially advised, for the second time, that he would indicate to the trial management judge the likelihood of new counsel and an adjournment, the parties ultimately agreed that Mr. Lambert would try to negotiate a settlement while at the same time keeping the trial date. [ 33 ] In this regard, there was, as Mr. Entlich pointed out at trial, some confusion around these instructions.

At the end of the last taped call, Mr. Lambert advised that unless he was being dismissed, he would have no basis to seek an adjournment of the trial. He indicated therefore that he would simply attend the trial management conference and thereafter attend to settlement discussions with ICBC with a view to resolving the matter before trial. Mr. Entlich wanted time to consider matters, and the parties agreed that Mr. Entlich would speak to Mr. Lambert before the trial management conference that afternoon. Mr. Entlich testified that he was unable to reconnect with Mr.

Lambert but nonetheless, the documented evidence makes it abundantly clear that the parties did then move quickly the next day to put together a settlement offer to ICBC with no small input by Mr. Entlich. [ 34 ] As Mr. Entlich put it in his testimony, at this point in the parties’ relationship they had “negotiated a truce to try to come up with a settlement”. It is apparent that Mr. Entlich and Ms. Laferrière accepted Mr. Lambert’s advice to try to negotiate a settlement with ICBC, knowing there were no medical-legal reports, but knowing also that ICBC had the notes of Dr. Gibson, Ms. Dejardins, and Mr. Grant.

In addition, ICBC would have known by late February, 2013, what evidence Mr. Grant could offer in the way of describing Mr. Entlich’s injuries, and his physiotherapy treatment. [ 35 ] After a number of iterations, Mr. Entlich and Ms. Laferrière agreed to the terms of a without prejudice settlement offer to ICBC dated March 4, 2013. In it, Mr. Lambert sought $37,868.99 in “new money” for Mr. Entlich. Ms. Harper countered with an all-inclusive offer in the sum of $26,500. Ms. Harper based her offer in part on Mr.

Entlich’s evidence at his discovery, including his failure to raise any symptoms of his accident with Dr. Melling from which Ms. Harper inferred there was nothing to report. Ms. Harper indicated also that she found risible Mr. Entlich’s claim for the breakdown of his marriage as a result of the collision. [ 36 ] Mr. Entlich characterized ICBC’s counter-offer as insulting, inaccurate and a misleading evaluation of his testimony on discovery. He advised Mr. Lambert by letter dated March 11, 2013, that he viewed the settlement offer as too low. He instructed Mr. Lambert to reply to Ms.

Harper with an offer for the full amount sought, inclusive of future treatment, travel, specials and so forth. As Mr. Lambert characterized it in his testimony at trial, Mr. Entlich’s instructions were to respond to ICBC’s counter-offer with a demand for a larger settlement than was originally proposed. Mr. Lambert quickly advised Mr. Entlich those instructions were not reasonable

and again invited the couple to seek new counsel. [ 37 ] By March 13, 2013, Mr. Entlich had devised a way to obtain more money in his settlement but his plan necessitated a renegotiation of Mr. Lambert’s contingency fee. When the parties failed to agree on terms of the renegotiation, their relationship ended. By letter dated March 18, 2013, Mr. Entlich and Ms. Laferrière dismissed Mr. Lambert and proceeded on their own to settle with ICBC. The ICBC Settlement [ 38 ] Within days of doing so, Mr. Entlich and Ms. Laferrière informed Ms. Harper of their decision to terminate Mr. Lambert’s services.

On March 20, 2013, they filed a Notice of Intention to Act in Person in the British Columbia Supreme Court Registry. That was quickly followed by a lengthy letter addressed to Ms. Harper advising, among other things, of their intention to continue negotiating a settlement. In the letter the couple confirmed their understanding that a case meeting in chambers with a Master or Judge was necessary in order to speak to an adjournment. They sought Ms. Harper’s availability for such a meeting. [ 39 ] On March 25, 2013, Ms. Harper advised that her clients would oppose an application to adjourn.

On that date, ICBC filed its Certificate of Readiness for trial. On that same day, Mr. Entlich and Ms. Laferrière sent ICBC’s Claims Representative, Ms. Bink Lofgren, a letter indicating that while an application to adjourn was still very much top of mind, both would prefer to try to resolve the matter rather than having to reschedule a new trial date. The couple then sent Ms. Lofgren a lengthier letter, dated April 2, 2013, setting out in detail their claim and the rationale for their settlement numbers. Ultimately, Mr.

Entlich proposed a settlement of his claim in the sum of $35,679.84 “new money”. [ 40 ] On April 4, 2013, Ms. Harper countered with an offer totalling $30,000. On April 5, Mr. Entlich replied in some detail with a counter-offer in the amount of $32,500. That same day Mr. Entlich accepted ICBC’s final counter-offer for the sum of $31,000 new money. [ 41 ] It was, as Mr. Entlich admitted on cross-examination, his decision to represent himself after firing Mr. Lambert, and his decision to settle before seeking either legal advice or an adjournment. In this regard, Mr.

Entlich gave the following testimony on cross- examination: Q. ...You have now dismissed Mr. Lambert as your counsel, you had an option here to retain a lawyer and seek an adjournment. That was a potential option available to you right? A. Conceivably with again the same constraints that I discussed previously about the process, how long it would take, the cost. Q. But you could have [indecipherable] gone to a lawyer on a very short basis, and said I have a very short turn around, I have an approaching trial date, I need an immediate application to adjourn my trial and found a lawyer on that basis.

That was an option open to you? A. Um, within a few days of dismissing Mr. Lambert, I discovered that there was a problem with asking for an adjournment on that trial. Q. But that’s a problem that you perceived based on what you perceived as research, you didn’t ask any legal opinion about that? A. After the legal opinion I got from Mr. Lambert, I was very shy about asking anyone for a legal opinion. Q. You were shy but you could have done that? A. It’s conceivably possible, yes. Q.

And you knew that if you got an adjournment that would fix your problem of not having the medical legal evidence available to you at trial? A. Well, no, the adjournment would allow us, allow the production perhaps of those medical legals prior to any new dates for trial. Q. Exactly, and so instead of going down that route which was an option to you, you chose to settle your claim yourself with Master Harper? A. Yes. [ 42 ] In the afternoon of April 5, 2013, Mr. Entlich settled with ICBC in the amount of $31,000. Earlier on that same day, Mr. Entlich had faxed a lengthy settlement proposal to Ms. Harper’s office.

In it, Mr. Entlich proposed a settlement in the amount of $32,500 suggesting that such a settlement “would avoid the possibility of an adjournment and our being required to find new counsel and start much of this process over again.” On cross-examination, it was suggested to him that he was threatening the possibility of an adjournment to bolster his offer to settle. Mr. Entlich testified that his purpose was to test the waters for an adjournment – “to see if there was a possibility that if Ms.

Harper did not oppose one that perhaps the court would reconsider the normal rules and waive them and allow for an adjournment to occur.” [ 43 ] Still, later that same day, without having heard anything further from Ms. Harper concerning her position on an adjournment, Mr. Entlich accepted ICBC’s offer to settle. In an email note sent at 4:30 p.m., Mr. Entlich wrote, “I am in acceptance of your offer of $31,000 all inclusive (including disbursements) to finalize this matter, as I have begun to be more attentive to other matters which are pending.” By letter dated April 5, 2013, Mr.

Entlich sought confirmation from ICBC that nothing in its Release document would prevent him or Ms. Laferrière from taking action against Mr. Lambert. [ 44 ] Given the timing of Mr. Entlich’s settlement offer sent by fax to Ms. Harper’s office and his acceptance of ICBC’s offer that afternoon, I am not convinced that his allusion to an adjournment in his April 5 faxed letter was merely to test the waters. In my view it is far more probable that Mr. Entlich was still threatening an adjournment on April 5, 2013 in order to obtain a satisfactory settlement.

At the same time, Mr. Entlich’s email of April 5, 2013, clearly suggests that at that juncture his rationale for settlement also included the possibility that he could recover from Mr. Lambert the difference between what he settled for and what he maintains he ought to have been offered by ICBC. The evidence does not, on balance, support the theory that Mr. Entlich was unable to obtain an adjournment of his trial; rather, that for many of his own reasons, he determined not to seek one. IV. Legal Argument [ 45 ] In this small claims action, Mr.

Entlich seeks damages totalling $35,000 for what he alleges is the professional negligence of Mr. Lambert in the conduct of his file. Though his claim is not itemized as such, there is a lesser claim for damages for emotional distress arising out of an alleged breach of contract or fiduciary duty by Mr. Lambert. [ 46 ] The general thrust of Mr. Entlich’s claim is that he did not get the service he expected from Mr. Lambert. Mr. Entlich and Ms. Laferrière expressed disappointment that Mr. Lambert did not attend their discoveries.

They expressed feeling shock when they first learned of their rapidly approaching trial date. They suspected that Mr. Lambert attempted to push them into a settlement with ICBC to avoid going to trial without the requisite medical-legal reports. Mr. Entlich’s fundamental objection is that he was, he alleges, forced into settlement negotiations without a medical-legal report which he maintains put him at a distinct disadvantage. [ 47 ] For his part, Mr. Lambert agreed that some correspondence that ought to have been forwarded to Mr. Entlich was not. He agreed also that Mr. Entlich and Ms.

Laferrière should have been told of their trial date well before February 13, 2013. That oversight was, Mr. Lambert testified, a “whoopsie” on his part. Still he maintains that at no time did that error have any impact on his view of the case. Mr. Lambert’s firm view was that nothing that was done or not done by his office in any way prejudiced Mr. Entlich, or adversely affected his legal rights. It was an instance of the parties seeing the case differently. Mr. Lambert thought Mr. Entlich’s claim was worth at best $30,000. Mr. Entlich clearly thought it was worth much, much more. Mr.

Lambert did not believe a medical-legal report would help Mr. Entlich’s case. Although he never obtained one, Mr. Entlich, believes that such a report was critical and that Mr. Lambert’s failure to obtain one constitutes professional negligence. Damages for Professional Negligence [ 48 ] The elements necessary to make out such a claim for damages arising out of professional negligence are well known. Mr. Lambert relies on the following discussion of the test at para 19 of Machray v. Simpson , 2011 BCPC 309 in which Judge Skilnick wrote that to prove negligence, the claimant must prove on balance that:

a) a duty of care is owed to him by the defendant;

b) the standard of care appropriate to that duty was breached;

c) the claimant suffered an actual loss; and

d) the breach of the standard of care cause the loss, which was neither unforeseeable nor too remote. [ 49 ] I will discuss shortly the first two of these elements but for the present I note, as I did at trial, that one critical element of this claim is the “but for” test. Mr. Entlich must show that but for the failure of Mr. Lambert to obtain a medical-legal report, he suffered damages – those being the difference between what he obtained in settlement with ICBC and what he would have obtained but for the lack of a report. It is central to Mr.

Entlich’s claim that such a report was necessary to improve his settlement chances with ICBC. Still, Mr. Entlich settled with ICBC voluntarily, knowing he had no such report and seeks damages against Mr. Lambert in this trial – again, without such a report. [ 50 ] Aside from Mr. Entlich saying he would have gotten more in his ICBC settlement, there is no proof that such a report would have made a difference had it been prepared at the material time. I say this, notwithstanding the number of case authorities cited by Mr.

Entlich in which persons having been found to have suffered injuries along the lines he alleges to have suffered, were awarded damages well above $31,000. It is not, in my view, open to this court on the evidence in this case to conclude a medical-legal report would have made a difference when no such report has ever been prepared. [ 51 ] In the end, Mr. Entlich has produced the same clinical evidence that was available to Mr. Lambert. Based on that material, Mr. Lambert advised that no further reports would help Mr. Entlich’s case. Mr.

Entlich disagrees and argues that the failure to obtain such reports constitutes professional negligence. This does go directly to the question of the standard of care expected of a professional, such as Mr. Lambert, and whether that standard was breached. [ 52 ] As earlier noted, in any negligence case, the claimant must show he or she was owed a duty of care and that the duty was breached. There is no question in this case that Mr. Lambert owed Mr. Entlich a duty of care; that is to say a duty to take care not to cause Mr.

Entlich any foreseeable harm by failing to comply with the standard of care expected of a solicitor. Determining whether there was such compliance necessarily entails an examination of the standard of care. [ 53 ] Counsel on behalf of Mr. Lambert relies on several authorities for the proposition that in the absence of expert evidence, the court is in no position to adjudge the standard of care required of a solicitor in the position of Mr. Lambert. Mr. Gares relies firstly on Seiler v. Mutual Fire Ins.

Co. et al , 2003 BCSC 1423 , in which the court held that expert evidence was necessary to establish the standard of care required of insurance adjustors. On appeal, at Seiler v. Mutual Fire Ins. Co. et al , 2003 BCCA 696 , Chief Justice Finch dismissed the argument that expert evidence was unnecessary and that “a lay person could as readily draw the necessary inferences as an expert.” At para 15, Chief Justice Finch wrote: [15] With respect, these submissions are not supportable.

The events underlying this litigation are not such every day occurrences as a motor vehicle accident or a slip and fall accident where lay persons may, without expert assistance, draw inferences as to the standard of care and causation from proven facts. A lay person would not be familiar with the standard of care applicable to insurance adjusters, or the repairers they hired, to effect temporary or permanent repairs to a roof, part of which is blown away. Nor would a lay person be able

to infer whether mould or mildew developed as a result of the water damage, whether any such mould or mildew that did develop wastoxic, or, if toxic, whether the mould or mildew caused or contributed to the symptoms about which the plaintiffs' family complained. [54] Here it is submitted that the standard of care expected of a professional, such as Mr. Lambert, is also not a matter of commonknowledge such that any lay person could ascertain whether the standard was met.

At the same time, it might be argued that a Judge ofthis court would be in as good of a position as anyone to assess the standard of care required of a solicitor engaged in a practice such aswas Mr. Lambert. However, as Madam Justice Southin wrote in Zink v. Adrian, 2005 BCCA 93, this is not necessarily a soundproposition. At paras 43 and 44, Justice Southin puts it as follows: 41 There is an aspect of this case which troubles me.

My colleague says, in paragraph 22, "The judge correctly applied the test as towhat a reasonably competent solicitor would do having regard to the instructions and expectations of the client." 42 In the case at bar, the respondent did not call any expert evidence. The judge was his own expert.

Before us, the appellant madenothing of this. 43 But it does seem to me that in cases of alleged negligence by a solicitor, judges can only rarely make such a finding in the absence ofexpert evidence as to the standard of a competent solicitor conducting the business in question. 44 The judge can only properly do so, in my opinion, if the matter is one of "non-technical matters or those of which an ordinary personmay be expected to have knowledge." See Anderson v. Chasney, (MB CA), [1949] 2 W.W.R. 337 at 341 (Man. C.A.).

There is an underlying reason - the expert witness can be cross-examined with a view to showing he knows not whereof hespeaks. But the parties have no means of discrediting a judge's implicit assertion that he knows the proper way to conduct a certain kindof legal business.

One must not overlook that the reason some judges are judges is that whilst they were practising the profession theywere of a standard far above that of the ordinary reasonably competent member of the profession. [55] While the majority in Zink held the trial judge made no error in finding the conduct of the solicitor did not fall below thestandard of care expected of someone in his profession, the appellant did not, as Justice Southin notes, argue the point. I find thereasoning of Madam Justice Southin compelling.

The standard of care expected of a solicitor carrying on a practice like that of Mr.Lambert is neither a matter that lay persons can simply divine, nor is it a matter on which courts can opine on in fairness. Proof of thestandard of care in a case such as this should be led through a neutral, third party expert. [56] In his written submissions, Mr. Entlich takes issue with the expectation that he produce either an expert witness to testify as tothe standard of care, or a medical-legal report concerning his personal injury claim. [57] On the standard of care issue, Mr.

Entlich raises the argument, often heard in claims alleging medical malpractice for example,that experts prepared to challenge the professional standards of one of their own are difficult to find. In this case, this submission isentirely speculative, at the very least. [58] I find that without some expert evidence regarding the standard of care expected of personal injury lawyers such as Mr.Lambert, this court is in no position to determine whether the claim for breach of standard of care is made out. Mr.

Lambert’s evidence,which I accept, is that his own view, formed on the basis of his knowledge and experience, was that Mr. Entlich’s case would not beaided by a medical-legal report. Mr. Lambert explained the basis for his views to Mr. Entlich at the material time and in his testimonybefore this court. Whether this court might agree or disagree with the advice, the explanation made sense. Without evidence fromsomeone having knowledge of the skill set expected of a solicitor engaged in similar work, I am unable to conclude that Mr.

Lambert’sopinion fell below the standard of care expected of him in the circumstances and that therefore, the failure to obtain a medical-legalreport constituted professional negligence. The evidence simply does not support such an assertion. [59] I find I agree with counsel for Mr. Lambert that expert evidence regarding the standard of care is necessary in this case. Without it, Mr. Entlich’s claim for damages for professional negligence must fail on this ground alone. Still, as I have previously noted,Mr.

Entlich’s claim must also fail as he has not shown on balance that but for this alleged negligent failure to obtain a medical-legalreport, his settlement would have been any better. [60] As previously noted, Mr. Entlich also objects to any requirement that he produce a medical-legal report in this case.

Mr.Entlich argues that such reports are costly: he advocates that claimants in this court should not be required to produce such reports lest itdiscourage persons from bringing forth their lawsuits. [61] The mandate of the Provincial Small Claims Court is to provide a forum for the resolution of civil disputes for persons of allbackgrounds. To that end, this court does loosen various evidentiary rules but Judges of this court cannot alter the common law to assistone litigant over another.

The elements of a claim for negligence require proof of damages; a claimant must show that but for thenegligence he or she suffered a loss: Resurface Corp. v. Hanke, 2007 1 SCR at paras 21 to 23. If the development of such proofoutweighs the value of the loss, that is a matter for the litigant. Parenthetically, though this matters little, it should be noted that Mr.Entlich offers no proof of the cost of a medical-legal report sufficient to prove his case in this trial. [62] For these reasons alone, I would dismiss Mr. Entlich’s claim for damages arising of the alleged negligence of Mr. Lambert.

There is simply no proof of such a claim. [63] On behalf of Mr. Lambert, Mr. Gares addressed other aspects of Mr. Entlich’s claim in negligence and though I would dismissthe claim on the grounds set out, I will address those briefly. I agree with the submission that even if this court were to accept Mr.Entlich suffered some loss as a result of Mr. Lambert’s failure to obtain a medical-legal report, he was obligated to mitigate those lossesand he failed to meet that obligation. In Southcott Estates Inc., v.

Toronto Catholic District School Board, 2012 SCC 51, at paras 23 and24, the court put the duty to mitigate as follows: 23 This Court in Asamera Oil Corp. v. Seal Oil & General Corp., (SCC), [1979] 1 S.C.R. 633, cited (at pp. 660-61)with approval the statement of Viscount Haldane L.C. in British Westinghouse Electric and Manufacturing Co. v. Underground Electric

[page686] Railways Company of London, Ltd., [1912] A.C. 673, at p. 689: The fundamental basis is thus compensation for pecuniary loss naturally flowing from the breach; but this first principle is qualified by asecond, which imposes on a plaintiff the duty of taking all reasonable steps to mitigate the loss consequent on the breach, and debars himfrom claiming any part of the damage which is due to his neglect to take such steps. 24 In British Columbia v.

Canadian Forest Products Ltd., 2004 SCC 38, [2004] 2 S.C.R. 74, at para. 176, this Court explained that "[l]osses that could reasonably have been avoided are, in effect, caused by the plaintiff's inaction, rather than the defendant's wrong." As ageneral rule, a plaintiff will not be able to recover for those losses which he could have avoided by taking reasonable steps.

Where it isalleged that the plaintiff has failed to mitigate, the burden of proof is on the defendant, who needs to prove both that the plaintiff hasfailed to make reasonable efforts to mitigate and that mitigation was possible (Red Deer College v. Michaels, (SCC),[1976] 2 S.C.R. 324; Asamera; Evans v. Teamsters Local Union No. 31, 2008 SCC 20, [2008] 1 S.C.R. 661, at para. 30). [64] As Mr.

Entlich’s testimony evidences, he knew, as he was engaged in settlement discussions with ICBC after firing Mr.Lambert, that his concern about the lack of a medical-legal report could be alleviated almost entirely by an adjournment of his trial date. Whether such a report could have been prepared and whether it would have made a difference is entirely a matter of speculation. Butassuming it was possible, Mr. Entlich knowingly and voluntarily decided to proceed without one. He knew, as he admitted, that he couldhave retained counsel but chose not to. [65] I say Mr.

Entlich’s losses, had any been proven, could have been alleviated almost entirely as I find the impending trial date didexpose Mr. Entlich and Laferrière to one risk that Mr. Entlich could not mitigate. That, as Mr. Lambert pointed out to them in 2013, wasthe risk that ICBC would make an offer into court and thereby expose them to the possibility of double costs if they lost at trial, or atleast failed to beat the offer. Even if Mr. Entlich had obtained an adjournment, he might still have been exposed to that risk.

Thedifficulty with this is that it is impossible – at least on the evidence in this case – to determine whether such a loss would have occurredand, if so, what that loss would have been. [66] For all these reasons, I find that Mr. Entlich’s claim for damages in negligence has not been made out. Damages for Emotional Suffering [67] In the alternative to his claim in damages for professional negligence, Mr. Entlich seeks damages for emotional distress on thegrounds of either breach of contract or breach of fiduciary duty. These claims are not dissimilar to one another, nor are they factuallydistinct from Mr.

Entlich’s larger claim for damages arising out of Mr. Lambert’s alleged professional negligence. All of these claimsarise out of Mr. Entlich’s view that he and Ms. Laferrière were not served well by the offices of Mr. Lambert. Mr. Entlich submits thatin his view the “case boils down to a matter of trust or a violation thereof.” Once he chose to retain Mr. Lambert, Mr. Entlich expectedthat his counsel would look after his file, and see him and his wife through to a satisfactory resolution. The relationship endedunsatisfactorily for Mr.

Entlich, and he submits he has suffered emotional trauma as a result. [68] There are, I find, two difficulties with these alternative claims. First, I find the evidence is insufficient to support a claim forbreach of contract or fiduciary duty by Mr. Lambert. Secondly, Mr. Entlich has failed to make a case for damages for emotional distressin any event. Breach of Contract [69] Throughout the trial, Mr. Entlich emphasized that he and Ms. Laferrière fired Mr. Lambert “for cause”. In other words, thatMr. Lambert breached the terms of their contract and caused Mr.

Entlich at least to suffer emotional distress as a result. [70] It is clear on the evidence, and I find, that the parties went their separate ways only after Mr. Entlich failed to convince Mr.Lambert to reduce his contingency fee so as to enable Mr. Entlich and his wife to obtain what they felt was a fair settlement from ICBC. Prior to that, the parties had disagreed on many aspects of Mr. Lambert’s handling of the file; yet these disagreements always resolvedand the parties continued toward the resolution of the personal injury claims. [71] Mr. Entlich and Ms.

Laferrière both testified to being disappointed that Mr. Lambert did not attend with them at their discovery. Still, both agreed to Ms. Martin’s representation. Notwithstanding my findings above regarding the standard of care, it cannot possiblybe argued that Mr. Lambert’s decision to have Ms. Martin act as counsel during his client’s discoveries constituted either

an act ofprofessional negligence, a breach of contract, or a breach of his fiduciary obligations to his clients. [72] Mr. Entlich and Ms. Laferrière were equally upset that Mr. Lambert did not obtain a medical-legal report. Mr. Entlich urges thecourt to find Mr. Lambert was contractually obligated to do so. Still, both urged Mr. Lambert to represent them in settlementnegotiations in the absence of any such report. Moreover, I agree with the submission of counsel that Mr. Lambert was in no waycontractually bound to obtain a report. Mr.

Lambert was hired to exercise his professional judgment; an obligation to obtain a report atany particular time in the litigation process is inconsistent with the discretion necessary to exercise that judgment. Nothing in thecontingency agreement or Mr. Lambert’s correspondence supports the assertion that Mr. Lambert was in any way bound to obtain areport that might, in his view at least, harm rather than help his clients. [73] Other objections to Mr. Lambert’s conduct of the file have been addressed earlier in the discussion of Mr.

Entlich’s claim fordamages for professional negligence, including the lack of timely correspondence and notice of the trial date. None rise to the level of abreach of contractual obligation. I have not addressed an argument made by Mr. Entlich that Mr. Lambert failed to consider an in-trustclaim on his behalf for compensation for his undertaking household work while Ms. Laferrière was incapacitated. I accept thesubmissions on behalf of Mr. Lambert, relying on para 110 of Paterson v. Hindle, 2017 BCSC 1104, that such damages could only beawarded to Ms. Laferrièrie. It is not open to Mr.

Entlich to claim these damages in his case in any event. Breach of Fiduciary Duty

[74] Having considered the various objections raised by Mr. Entlich regarding Mr. Lambert’s conduct of his file, I am unable to findany instance of a breach of contract. Nor am I able to conclude on the evidence before me that Mr. Lambert failed to meet the standardof a fiduciary in this case by not acting in his best interests. [75] In my view, the submission that Mr. Lambert failed to act in Mr. Entlich’s best interests is little more than a restatement of theclaim that Mr. Lambert failed to conduct himself in accordance with the standard of care expected of persons in the legal profession.

Forthe reasons given, I find that claim has not been made out. Mr. Lambert made various decisions in his conduct of the file: many of thosedecisions were the subject of disagreement among Mr. Lambert and his clients. At no point has it been shown that the decisions were inerror; only that Mr. Entlich and Ms. Laferrière wanted things done differently. They disagreed with the advice they were given. Theywere, ultimately, unable to persuade their lawyer to change his views. Mr. Entlich has shown Mr.

Lambert made decisions on the filethat did not accord with his own views of how the litigation ought to have proceeded. He has not shown those decisions were contrary tohis own interests. He has not made out a claim for breach of fiduciary duty. [76] In any event, even if there was evidence to support either a breach of contract or fiduciary duty, I find Mr. Entlich has failed toprove he is entitled to damages. Damages for Breach of Contract and/or Breach of Fiduciary Duty [77] Mr. Entlich submits that the experience of retaining, working with and then firing Mr.

Lambert, added to his existing emotionalturmoil, and contributed to the dissolution of his marriage. He submits that damages in the range of $10,000 would be appropriate, basedon similar case authorities. Those authorities, including Klaus v. Carlo Taylhardat dba Vidaphoto Photography, 2007 BCPC 21, at paras6 to 9, enable courts to award damages for emotional distress arising out of a breach of contract. As Klaus provides, as a general rule,damages for emotional upset or shock are not available for a breach of contract.

However, where a breach of a contract that falls into the“peace of mind” category (such as contracts for wedding photos or burial packages) is established, damages can be awarded if the “fruitof the contract” is not provided. Other cases allow for damages for breach of contract where the breach has given rise to inconvenienceor discomfort “sensorily experienced”. [78] The contract or retainer between Mr. Lambert and Mr. Entlich is not a “peace of mind” contract, even though, as Mr. Entlichsubmitted, such a contract can give a person solace knowing their file is in good hands. Moreover although I accept that Mr.

Entlich isupset, even angry about the way his file was handled by Mr. Lambert, the evidence falls far short of a case for damages for emotionalstress. As for Mr. Entlich’s claim the matter contributed to his marital breakdown, I find I do not believe Mr. Entlich’s evidence on thispoint. Mr. Entlich sought damages in 2013 for the breakdown of his marriage as a result of the collision. To now claim it might haverepaired itself but for Mr. Lambert’s conduct on the file is in my view fanciful at best. [79] Mr.

Entlich has not made out a claim for damages arising out of an alleged breach of contract and/or fiduciary duty on the partof Mr. Lambert on the evidence. [80] Though this last aspect of Mr. Entlich’s case need not be addressed in detail given my findings above, I would for many of thesame reasons dismiss Mr. Entlich’s claim for punitive damages. In Vorvis v.

ICBC (SCC), [1989] 1 S.C.R. 1085, thecourt held at para 27 that “punitive damages may only be awarded in respect of conduct which is of such nature as to be deserving ofpunishment because of its harsh, vindictive, reprehensible and malicious nature.” There is no evidence that Mr. Lambert’s action orinaction on this file in any way approached the kind of conduct described in Vorvis. [81] For all of the above reasons, I would dismiss Mr. Entlich’s claim in its entirety against each of the defendants. Pursuant to Rule20(2) of the Small Claims Rules, Mr. Lambert is entitled to his reasonable costs and expenses.

If the parties are unable to agree on thosethey have leave to set the matter down before the Registrar. _______________________________ The Honourable Judge L. Mrozinski Provincial Court of British Columbia