Pirie v. Edwards Date:, 2013 BCPC 161

Citation: Pirie v. Edwards Date: 20130620 2013 BCPC 0161 File No: 24421 Registry: RICHMOND IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ALLAN PIRIE CLAIMANT AND: COHEN BUCHAN EDWARDS DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE E. D. SCHMIDT Appearing in person: A. Pirie Counsel for the Defendant: L. Lam Place of Hearing: Richmond , B.C. Date of Hearing: March 22, 2013 Date of Judgment: June 20, 2013

[ 1 ] This matter came before me March 22, 2013 for a Settlement Conference pursuant to Rule 7 of the Small Claims Rules . The Process [ 2 ] The Notice of Claim was filed April 2, 2012 and a Reply was filed June 4, 2012. The matter was then set for Settlement Conference. [ 3 ] The Settlement Conference was the first Provincial Court process following the filing of the aforesaid pleadings. [ 4 ] The scheme of the Small Claims Rules is based on

Section 2 of the Small Claims Act . That

section reads as follows: “2.

(1) The purpose of this Act and the rules is to allow people who bring claims to the Provincial Court to have them resolved and to have enforcement proceedings concluded in a just, speedy, inexpensive and simple manner.

(2) Subject to this Act and the rules, in conducting a hearing the Provincial Court may make any order or give any direction it thinks necessary to achieve the purpose of this Act and the rules.” [ 5 ] The Small Claims Rules therefore do not anticipate pre-trial motions as might be provided for in the Supreme Court Rules .

Section 16 specifically provides for some necessary motions such as substitutional service. The reason for this difference is so that

Section 2 of the Act can be a reality in the pursuit of a Small Claims action. [ 6 ] The words “simple, speedy and just” in

Section 2 of the Act are given life in the provision for Settlement Conferences in Rule 7(14) where a judge has broad discretion to mediate, decide issues not requiring evidence, set trial dates, make orders requiring parties to produce documents and dismiss Claims or Replies if there is no reasonable claim or reply, no triable issue or is frivolous or and abuse of the court’s process.

The familiar cost drivers of motions and discoveries are therefore not available in Provincial Court civil actions. [ 7 ] At the Settlement Conference, the Defendant has requested that the Court dismiss the Notice of Claim as being an abuse of the courts process. As the Settlement Conference is not a proceeding of record, the court utilized subsection 7(14)(

j) requiring evidence in the form of an affidavit. The Claimant was to make a response after receiving the Defendant’s materials. The timing for those materials was agreed to by the parties and has been adhered to by both. [ 8 ] The Court required that the Defendant support that application with the affidavit as well as written submissions which were filed April 22, 2013. The Claimant has filed a response and written argument May 17, 2013. [ 9 ] In its written argument, the Defendant has set out the facts which led to the filing of the Small Claims action.

That written argument refers to the affidavit of Joseph Cuenca, a lawyer and partner in the Defendant law firm. [ 10 ] In his response, the Claimant agrees with the statement of facts as submitted by the Defendant, with the clarification that the Claimant was unrepresented by counsel in the period of time the Supreme Court action was filed up to the time the Small Claims action was filed. The Facts [ 11 ] For the purpose of these reasons, the Court will repeat the facts as found in the Defendant’s statement of facts, agreed to by the Claimant. These read as follows “1.

The Claimant, Allan Pirie, retained the Defendant law firm in or about December 24, 2004 to represent him in a dispute over entitlement to long term disability benefits. A retainer letter was sent to the Claimant but he never provided the Defendant with a signed copy (hereinafter referred to as the “Retainer Letter”). A copy of the Retainer Letter dated December 24, 2004 is attached to the Affidavit as Exhibit “A” . 2.

The Retainer Letter contained specific hourly rates for lawyers, junior lawyers, legal assistants and secretaries, being: a. $250.00 per hour for lawyers, b. $140.00 - $180.00 per hour for junior lawyers, c. $75.00 per hour for legal assistants, and d. $50.00 per hour for secretaries.

3. The Defendant law firm had conduct of the Claimant’s matter from January 2005 to the conclusion of the matter by settlement in or about September 2009. 4. In or about September 15, 2009 the Defendant provided the Claimant with its final bill for all legal fees and disbursements at the conclusion of the matter. The Defendant deducted the amount owing on the final bill from the settlement funds that were paid into the Defendant’s trust account and provided the Claimant with a cheque for the balance. A copy of the Defendant’s bill dated September 15, 2009 is attached to the Affidavit as Exhibit “B” . 5.

In or about September 21, 2009 the Defendant sent a letter to the Claimant asking whether he wished to have all file contents in the Defendant’s possession returned to him. A copy of the Defendant’s letter is attached to the Affidavit as Exhibit “B-1” . The Claimant subsequently picked up the file contents as deposed in paragraph 5 of the Affidavit. 6. On March 12, 2010 the Claimant commenced an action in the Supreme Court of British Columbia at the Vancouver Registry under action no. S-101772 for leave to be granted to extend the time for filing an Appointment for taxation of the Defendant’s bill.

This was done on a without notice basis. Copies of the Claimant’s filed materials are attached as Exhibit “C” to the Affidavit, which include: a. Requisition filed on March 12, 2010, b. Notice of Motion for a Without Notice Order filed March 12, 2010, c. Notice of Hearing for a Without Notice Order filed March 12, 2010, and d. Affidavit of the Claimant sworn and filed March 12, 2010. 7. The Claimant’s motion for leave was heard on March 12, 2010 by Master Baker and an oral order was pronounced granting the Claimant a further month to file an Appointment to review legal accounts.

Copies of the British Columbia Court Services Online print out and

summary sheet showing the oral order pronounced by Master Baker are attached as Exhibit “D” to the Affidavit. 8. On March 30, 2010 the Claimant started a new action in the Supreme Court of British Columbia at the Vancouver Registry under action no. S-102252. He filed and served an Appointment for review of the Defendant’s legal accounts set for a hearing on June 4, 2010. Attached to the Affidavit as Exhibit “E” is a copy of the Appointment filed on March 30, 2010. 9.

In or about July 8, 2010 the Defendant wrote a letter to the Claimant asking him to deliver the file contents to the Defendant’s office for copying in light of his complaint about the legal bills. Attached to this Affidavit as Exhibit “B-1” is a copy of the letter from the Defendant to the Claimant dated July 8, 2010. The Claimant never produced the documents. 10. On June 4, 2010 the Claimant and Mr. Michael Frost, representing the Defendant law firm, attended the appointment wherein Registrar Scarth made an oral order for production of documents and adjourned the hearing to July 26 and 27, 2010.

Copies of the British Columbia Court Services Online print out and Mr. Frost’s notes from the hearing are attached as Exhibit “F” to the Affidavit. Note that the clerk’s notes on the print out showing the date in which the hearing is adjourned to is incorrect. The hearing was in fact adjourned to July 26 and 27, 2010 as correctly recorded in Mr. Frost’s notes. 11. In or about July 8, 2010, the Defendant sent a letter to the Claimant asking him to deliver the file contents that were returned to him to the Defendant’s office for copying so that 12.

On July 14, 2010 the Defendant filed a Notice of Application and affidavit material in the Claimant’s first action under action no. S-101772 to set aside Master Baker’s Without Notice Order for the extension of time to file an Appointment. The hearing was set for July 23, 2010. The Claimant Filed an Application Response on July 19, 2010 opposing the Defendant’s application. Copies of the aforementioned filed materials are attached as Exhibit “G” to the Affidavit, which include: a. Notice of Application of the Defendant filed July 14, 2010,

b. Affidavit of Jean Oland sworn on July 13, 2010 and filed July 14, 2010, c. Application Response of the Claimant filed on July 19, 2010. 13. On July 23, 2010, the Claimant and Mr. Frost, representing the Defendant, appeared before Mr. Justice Harris and an order was pronounced setting aside Master Baker’s Without Notice Order for extension of file an Appointment, and the Claimant was permitted to apply for an Order that there were “special circumstances” pursuant to

section 70 of the Legal Profession Act for an extension of time, and with proper notice to the Defendant. Attached as Exhibit “H” to the Affidavit is a copy of Mr. Justice Harris’ Order pronounced July 23, 2010. 14. On July 28, 2010 the Defendant sent a letter to the Claimant enclosing a copy of the Order of Mr. Justice Harris and advised the Claimant that if he intended to rely upon the flooding of his home for an extension of time to file an Appointment, that he should forward to the Defendant copies of all documents relating to the incident.

Attached as Exhibit “I” to the Affidavit is a copy of the aforementioned letter dated July 28, 2010. 15. On August 23, 2010 the Claimant filed a Notice of Application under his second action in the Supreme Court with action no. S-102252 for an order for extension of time to file the Appointment due to “special circumstances” as set out in

section 70 of the Legal Profession Act. The hearing was set for September 13, 2010. The Defendant filed an Application Response and supporting affidavits on September 3, 2010 opposing the Claimant’s application. Both parties were to rely on previously filed affidavits by the Claimant and Ms. Oland in the first action (action no. S-101772). The Defendant added an additional affidavit. Copies of the aforementioned filed materials, excluding the previously filed affidavits, are attached as Exhibit “J” to the Affidavit, which include: a. The Claimant’s Notice of Application filed August 23, 2010, b.

The Defendant’s Application Response filed September 3, 2010, and c. Mr. Michael Frost’s affidavit sworn on September 2, 2010 and filed September 3, 2010. 16. On September 13, 2010 the Claimant and Mr. Joseph Cuenca, representing the Defendant, attended the Vancouver Courthouse for the hearing of the Claimant’s application. When the parties checked in with the clerk they were advised that their application will not be heard until the afternoon and were asked to return at 2:00 PM. The clerk never took down Mr. Cuenca’s name. When Mr.

Cuenca returned in the afternoon to check in, he was advised that the matter was heard preliminarily, without Mr. Cuenca present, and was adjourned generally because the Claimant advised he could not attend at 2:00 PM due to work reasons. Attached to the Affidavit as Exhibit “K” is a copy of the British Columbia Court Services Online

summary report showing at page 2 and under the title, “Hearing and Results” that the application on September 13, 2010 was adjourned generally. Furthermore, paragraph 13 of the Affidavit explains what happened at the September 13, 2010 hearing. 17. The Claimant did not take any further steps to pursue his action in the Supreme Court and never re-set the application for a hearing. 18. On April 2, 2012 the Claimant caused a Notice of Claim to be filed by his lawyer seeking the exact same relief against the Defendant as the two Supreme Court actions he had started over two years ago.

He made a claim for damages for breach of retainer agreement and in the alternative, for an unreasonable legal bill.

A copy of the Notice of Claim is attached as Exhibit “L” to the Affidavit.” The Issue [ 12 ] The Defendant says that the commencement of an action in Provincial Court while the action for identical relief based on the same facts is pending in Supreme Court is an abuse of process and should be dismissed pursuant to Rule 7(14)(i)(iii). [ 13 ] The Claimant says he will withdraw the claim in Supreme Court if the Provincial Court accepts jurisdiction. [ 14 ] The issue before the Court is whether it is an abuse of process to commence an action in one court while the identical issue and facts are before another court .

Discussion [15] The Claimant relies on the case of Alexander Holburn Beaudin & Lang LLP v. Braun 2006 BCSC 1725 to argue that thetwo actions can co-exist. In that case, a Justice was deciding whether a time limitation could be extended for filing an appointment fortaxation of a legal account.

The court allowed the extension opining, although not deciding, that if it did not do so, the person seeking theappointment, and having been denied the same due to the time limitation, thus ending the Supreme Court involvement, could seek aremedy in Small Claims Court for breach of contract. [16] The case does not stand for the proposition that a Small Claims action can co-exist with a Supreme Court action for identicalrelief on identical facts.

The Justice did, however, use the possibility of the result of not extending the time for filing in the case beforehim, thereby excluding the hearing of the matter in the Supreme Court, to be a potential further filing in another forum which hasjurisdiction to hear the matter. The Justice allowed the case to proceed where it had begun in spite of a missed time limitation,presumably to avoid a multiplicity of proceedings. [17] No case has been argued which is on point.

The Defendant refers to two cases where the Court found an abuse of processresulting in dismissal of an action where a plaintiff commences a second action to avoid the adverse consequences of a Rule of Court. Paterson v. Jaikumar (1979) (BC SC), 10 BCLR 48 Great Pacific Contracting Ltd. V. Harwyn Properties (1981) (BC SC), 29 BCLR 145 [18] The Claimant received a legal account for work done on a disability claim in September 2009. The account was taken by theDefendant by way of trust transfer from settlement funds in the litigation.

The Claimant requested the contents of his file and was giventhe same by the Defendant. [19] The Claimant then commenced an action in the Supreme Court in March 2010 for leave to extend the time for filing fortaxation of the account. The Claimant was utilizing the Supreme Court expedited process for dealing with fee disputes pursuant to theLegal Professions Act. [20] Leave was granted by a Master of the Supreme Court giving him a month to file for the Appointment. The case then began towork its way through the process.

There were hearings before another Master and before a Justice with respect to preliminary matters. Inparticular, the original order granting leave to extend time had been made by Master Baker without notice to the other party. That Orderwas set aside by Justice Harris and a hearing was ordered to re-hear the motion on the basis of “special circumstances” which would leadto the extension of time. [21] The Plaintiff was required to allege and show special circumstances which would justify the extension of time.

In addition,upon application, the Plaintiff was ordered by Master Scarth to produce the contents of the file which the Defendant had given to thePlaintiff without keeping a copy, to allow the Defendant to prepare. [22] A hearing date was set for September 13, 2010, but on the date of hearing, the Plaintiff obtained an adjournment without theknowledge of the Defendant, although the Defendant was in attendance. [23] The Plaintiff did not comply with the order of Master Scarth to produce documents, nor did he seek another hearing date toadvance the taxation further.

He adjourned the matter generally according to the Hearing and Results record in the Supreme Court. Hehas not applied for a new date. [24] Instead, 19 months later, on April 2, 2012, he filed a Notice of Claim in Provincial Court seeking the same relief as he isseeking in the Supreme Court, only this time not under the rules designed for the examination of lawyers’ accounts, but as a generallitigation alleging breach of contract.

The facts, issues and claim for relief remain the same in both courts. [25] The Defendant says that it is an abuse of process to commence a new proceeding in a different court while the first action ispending, when, as they allege, a litigant finds the rules of the first court not to his liking. [26] It appears that the Claimant did not want to abide by the order of Master Scarth to produce documents, and did not want toprove the “special circumstances“ to extend the time limits in Supreme Court that he was alleging according to the affidavit materialfiled. [27] He gives no reason for failing to pursue his action in Supreme Court and for filing in the Provincial Court almost two yearsafter adjourning his Supreme Court action.

Decision [28] The Court is mindful that litigation is a difficult and trying process to be engaged in as a party. There is emotional stress,outcome uncertainty, preparation difficulty, time commitment, and financial burden. Courts have been diligent in not allowing amultiplicity of proceedings.

The courts should be particularly vigilant where litigation is simple and inexpensive to commence. [29] The Small Claims Rules allow, at the very beginning of the process, a judge to dismiss a claim, counterclaim, reply or thirdparty notice where it is without reasonable grounds, discloses no triable issue, is frivolous or an abuse of the court’s process.

[30] In the matter of legal accounts, s. 70 of the Legal Professions Act permits a

summary process for parties who question a legalaccount to have it reviewed without engaging the full process of the Supreme Court Rules. There are special rules which apply, with theintent of creating a simple procedure for a third party assessment by a Master or Justice of the Supreme Court. It is relatively quick andinexpensive. [31] That does not mean a party will not have to prepare their case sufficiently so that a Master or Justice can make sense of theposition they are taking. Some of the stress, time commitment and financial burden are lessened by the

summary process. [32] The Small Claims proceedings are also simplified, but again carry the stress, preparation, time commitment and outcomeuncertainty present in traditional litigation. [33] In the present case, the Claimant commenced two Supreme Court taxations. Why that is the case is a mystery, but they areapparently both outstanding. The Defendant attended three hearings occasioned by that filing in Supreme Court. [34] After a year and a half of inaction, the Claimant commenced the same complaint against the same party in Provincial Court.

Again the Defendant was obliged to prepare and attend court prepared to answer to the same complaint of the Claimant. It is not ananswer to say that the Defendant is a law firm and it is their business to go to court.

In this case, they are a party and subject to all thestress, inconvenience and expense of any party subjected to a lawsuit. [35] The court finds that the Notice of Claim #24421 Richmond Registry, is an abuse of process and is therefore dismissed. [36] Once litigation over an issue is commenced in a court, the party being sued should have some confidence that the matter willproceed to conclusion in that court, especially when the party being sued engages in that process.

There should be no fear that anotherfront of litigation will be opened against them. [37] Cases may be transferred between the courts by judges of each court pursuant to the relevant rules. Provision is also made forboth courts’ involvement where the issue in Provincial Court is a discreet issue that is part of a larger lawsuit in the Supreme Court.

None of these rules in either court provide for litigation for the same issue between the two parties to be litigated in both courts at thesame time. [38] Even if the Claimant, after receiving these Reasons, elects to withdraw the actions in the Supreme Court and proceed inProvincial Court, he may still be prevented from doing so by the abuse of process rule. [39] He may also be prevented in doing so by the line of cases which hold that where a

summary process exists in the Supreme Courtfor deciding issues between parties pursuant to a legislative scheme, eg. Personal Property Security Act, a claimant cannot avoid theremedies available to the defendant in the Supreme Court under that scheme by suing in Provincial Court. (First City Trust v. 282674B.C. Ltd.(1993) (BC SC), 82 B.C.L.R. (2d) 123. S.C. Holmes). [40] While expenses were no doubt incurred, the Court does not assess any fees or expenses.

While the Defendant had every right toraise the time limitation under the Legal Professions Act to prevent the matter being heard on its merits in the Supreme Court, they didso at the risk that the unrepresented Plaintiff may take them down another road that would incur further expense. ________________________ E. D. SCHMIDT, P.C.J.