Lees v. Becker Date:, 2013 BCPC 338

Citation: Lees v. Becker Date: 20130820 2013 BCPC 0338 File No: C11500 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ALLEN M. LEES CLAIMANT AND: E. JOHN BECKER E. JOHN BECKER PERSONAL LAW CORPORATION DEFENDANT ORAL RULING ON APPLICATION OF THE HONOURABLE JUDGE T. S. WOODS Appearing on their own behalf: A. Lees Counsel for the Defendants: G. Munroe, Articled Student

Place of Hearing: Port Coquitlam , B.C. Date of Hearing: August 20, 2013 Date of Judgment: August 20, 2013 [ 1 ] THE COURT: This is an application brought in the context of a dispute between a lawyer and a firm with which he was formerly associated. The matter commenced by Notice of Claim filed by the lawyer, Mr. Lees, on November 9th of 2010. The claim was answered by a reply and counterclaim on November 15th, 2011.

The parties appeared before Judge Alexander at a settlement conference on December 20th of 2012. [ 2 ] The platform upon which the action and counterclaim rested was that revealed in the Notice of Claim, the reply and the counterclaim. The parties were content to participate in a settlement conference before Judge Alexander with that as the platform, the defining court filings that signify the issues in contention between the parties. [ 3 ] Judge Alexander presided over that settlement conference.

That settlement conference did not yield up a settlement and it concluded as settlement conferences typically do, with orders of disclosure requiring, for example, that the parties supply to each other copies of all relevant documents in their possession or control by a specified date, that date was 30 days after the conclusion of a settlement conference, which takes us to the 20th or 21st of January of 2013. [ 4 ] The parties at the settlement conference indicated their witness requirements and Judge Alexander, on the basis of everything she had heard, considered that a half-day trial was sufficient and a Notice of Trial was issued specifying September30th of 2013 as the trial date.

And that Notice of Trial was issued in December of 2012. [ 5 ] I review this history because it simply shows that all of the parties in these proceedings have understood that the issues in contention were those specified in the Notice of Claim and the reply and counterclaim filed a great long time ago. The parties went before Judge Alexander seeking to resolve the matter in a settlement conference with that outline of what was in contention. [ 6 ] The parties have known since late December of 2012 that they were facing a trial in September of 2013.

The parties made disclosure to each other of what they considered they were obliged to disclose by the end of the third week in January of 2013 and it is not until August 19th that the issue is raised and the defendants' application are raised. This application was served upon Mr. Lees, the claimant, yesterday. [ 7 ] Mr. Lees is entitled as a right to seven days' notice in an application of this kind. He has waived his entitlement to that so he could speak to it this morning. [ 8 ] The first form of relief sought in the application is the adjournment of the trial. I decline to make that order.

The parties have been aware of that trial date since, as I have said, sometime in late December of 2012. Mr. Munroe did the best he could with what he has, but he has, as Mr. Lees says, placed very skeletal materials before the court to justify or support his application. He now raises deficiencies he says in disclosure, an inadequacy in his own pleadings, et cetera, et cetera, all matters that could have been raised a great deal earlier. [ 9 ] Adjournment applications notoriously are subject to dismissal when they are not brought in a timely fashion. Mr.

Munroe, on behalf of the defendant applicants, cites problems that ought to have been at top of mind for the defendants many, many months ago. [ 10 ] This matter is set for a half-day trial. Mr. Munroe may be right that the issues are more complex than can be addressed in a half-day trial. They will get started, at least, on the trial date of September 30th.

And if it is necessary to have a continuation date, then the continuation date can be filed at the conclusion of proceedings on September 30th. [ 11 ] The second application sought by the defendants is an order that would allow the defendants to amend their reply and counterclaim. I deny that application, as well. Those pleadings have served as the defining charter, so to speak, for the matters in contention in this lawsuit since the time they were filed back in 2010 and 2011 respectively. Those pleadings were sufficient to serve as the platform for formalized settlement discussions.

The application brought at the eleventh hour to redefine the issues is not an application that the court is disposed to grant, given the willingness of all parties to proceed on the footing afforded to them by the pleadings that they drew themselves so long ago. [ 12 ] The third application to permit Rule 10.1 offers to settle to be served at any time prior to the commencement of the trial is not opposed by Mr. Lees, the respondent and claimant. Indeed, he consents to that.

So there will be an order made pursuant to Rule 16(6) (c.2) that both the claimant and the defendant are permitted to serve Rule 10.1 offers to settle at any time prior to the commencement of the trial on September 30th, 2013. [ 13 ] Lastly, the defendant applicants seek an order compelling disclosure of further documents relevant to the claimant's own claim and his defence to the counterclaim, failing which the applicants ask for a court order that the claimant's claim be dismissed.

If there is deficiency in the disclosure of the claimant, that deficiency would have been plain and obvious from and after the end of the third week of January of 2013. Both parties, to the extent that they have been less than complete and comprehensive in their document disclosure, face the risk that they may be limited to the documents that they have disclosed when they ultimately come before the court for trial.

That is the risk that a litigant faces who has not complied with document disclosure orders made before. [ 14 ] Judge Alexander was clear in what she required the parties to disclose to each other and the parties have purported to comply with her requirements. It would be inappropriate for the court to grant an order of the sort sought by the defendants here in

circumstances where they have had the full measure of the adequacy of disclosure for so many month.

So that order sought by the defendants and applicants is also denied, or that application is also denied. [ 15 ] I will make an order, however, that neither party may make use at trial of any documents that were not among those disclosed to each other pursuant to the order of disclosure made by Judge Alexander on December 20th of 2012 unless the trial judge grants leave to do so. [ 16 ] So presumptively, and this is not part of the order, Madam Registrar, I am just explaining, presumptively, parties are limited to that which they disclosed pursuant to mutual obligations to be comprehensive in their disclosure. [ 17 ] If anyone wants to pull a document out and try and put it before the court as part of the evidence at trial that was not disclosed before that, of course, has the undesirable effect of creating surprise.

The whole point of disclosure orders is that people will come to trial with their eyes open and know what exactly they are up against. A trial judge may be persuaded to allow someone to use a document that was not described before, but that is for the trial judge to decide. (ORAL RULING CONCLUDED)