Vance v. Bartlett Date:, 2012 BCPC 266

Citation: Vance v. Bartlett Date: 20120716 2012 BCPC 0266 File No: C50524 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: SHANE E. VANCE ANN C. VANCE CLAIMANTS AND: SANFORD BARTLETT BARTLETT & COMPANY LAW CORPORATION DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J.D. COWLING

Appearing on their own behalf: Shane E. Vance and Ann C. Vance Counsel for the Defendants: E. Ritchie Place of Hearing: Nanaimo, B.C. Date of Judgment: July 16, 2012 [1] THE COURT: This is an application pursuant to Rule 8(6) of the Small Claims Rules, to set aside a notice of withdrawal filedin this proceeding on January 17th, 2008. The notice of withdrawal was part of the settlement of a disputed claim between Mr. and Mrs.Vance and the defendant solicitor and his corporate entity. [2] Pursuant to the settlement, Mr. and Mrs.

Vance accepted a payment of $6,500 and provided releases of all claims in addition tothe notice of withdrawal. [3] The original claim alleged professional negligence with respect to the defence of a foreclosure action upon the residence of Mr.and Mrs. Vance. The claim was filed on June 20th, 2007, and a reply filed on June 28th, 2007. The negligence is said to have takenplace on or about December 7th, 2006. [4] In addition to the application to set aside the notice of withdrawal pursuant to Rule 8(6), Mr. and Mrs. Vance seek an order totransfer the file to the Supreme Court of British Columbia.

Background [5] Mrs. Vance is a 69 year old freelance writer and Mr. Vance is 60 and a commercial driver. In April of 2006 they had placed amortgage on their home in Qualicum Beach, British Columbia. They had paid the first three months of the mortgage payments inadvance and supplied nine post-dated cheques for the balance of the first year payments. It is alleged that the mortgage brokererroneously deposited some of the post-dated cheques before they were due, causing the bank to return the cheques.

It is further allegedthat the mortgage company/broker then initiated foreclosure proceedings without a proper foundation. [6] The Vances retained Mr. Bartlett to defend the foreclosure action and to rectify the mistaken process. They alleged that at anearly stage of the proceeding, the lawyers for the mortgage company recognized the error that had been made. Mr. and Mrs. Vancebelieved that the foreclosure could have been resolved had Mr. Bartlett attended a court hearing on December 7th, 2006, in furtheranceof an offer by the mortgage company to reinstate the mortgage. [7] Mr. and Mrs. Vance allege that Mr.

Bartlett never communicated to them the offer for reinstatement or notified them of theDecember 7th, 2006, date, when an order nisi was apparently granted. This letter from the mortgage company solicitors datedNovember 1st, 2006, and offering reinstatement, is attached as Exhibit 'O' to the affidavit of Ms. Vance. [8] Mr. and Mrs. Vance did not become aware that the foreclosure proceedings had gone to the order nisi stage until February of2007. They are unable to re-finance and say their property was sold at a loss and that they incurred consequential damages.

They werealso unable to obtain alternative legal counsel due to their perceived financial difficulties. [9] They made a complaint to the Law Society about the matter and also commenced this proceeding. [10] At a Small Claims settlement conference held on November 26th, 2007, the solicitor for the defendants provided the claimantswith a list of 196 documents. On December 4th, 2007, Mrs. Vance requested copies of 52 of the documents. Document Number 106was one of the requested documents and is the letter of November 1st, 2006, or a copy thereof, offering reinstatement.

The 52 requesteddocuments, including the letter of November 1st, 2006, were sent to the claimants and were received by December 18th, 2007. [11] A settlement was arranged for $6,500 by way of emails and confirmed with the subsequent releases and notices of withdrawalsome weeks later. The claimants say that at the time of the settlement they had the letter of November 1st, 2006, in their possession, butdid not appreciate its significance until well after the settlement. Legal Issues [12] The decisions in Northwest Waste Systems Inc. v. Szeto, 2003 BCPC 431, Dhillon J., and Wilson & ANJ Corp. v.

Regoci &Global Securities, 2009 BCPC 170, Romilly J., confirm the jurisdiction of this Court to set aside the notice of withdrawal. Thosedecisions suggest that the discretion to do so should be exercised in a manner similar to that delineated with regard to relieving againstthe consequences of a notice of discontinuance in the Supreme Court of British Columbia. [13] The Wilson decision makes reference to the decision of the Pacific Centre Ltd. v.

Micro Base Development et al, (BC CA), 49 B.C.L.R. (2d) 218, and cited the following passage from the headnote for that decision: However, in the absence of the establishment of any reason for the filing [of] the notice of discontinuance, such as inadvertence, mistakeor misapprehension, or of "other grounds" which would be of a compelling nature, the discretion should not be exercised to set aside anotice of discontinuance. [14] It is to be noted that if I do set aside the notice of withdrawal and grant the application to transfer the file to Supreme Court, allsubstantive defences and limitations remain available to the defendants.

This would include the ability to seek a stay of proceedings orother remedy based on the settlement documentation and the releases provided pursuant to the settlement. In this regard, the claimants

would have to deal with considerations discussed in cases such as Hawitt v. Campbell and Cameron, (BC CA), [1983]5 W.W.R. 760 (B.C.C.A.) and Desbiens v. Farquhar, [1986] B.C.J. No. 2511. [15] In her material, Mrs. Vance has alluded to a number of factors that caused she and Mr. Vance to enter into the settlement, someof which are as follows: (

a) inability to afford legal advice; (

b) difficulties in obtaining legal representation in a matter alleging professional legal malpractice; (

c) distrust and discouragement resulting from the outcome of the foreclosure proceedings; (

d) lack of emotional and financial confidence as a result of the circumstances giving rise to the foreclosure and its apparentmishandling; (

e) lack of knowledge and awareness as to the significance of specific events and items of correspondence in the extensivedocumentation they received; (

f) a general sense of feeling overwhelmed, vulnerable and helpless at that time. [16] The filed material and submissions indicate that Mrs. Vance, with the background support of Mr. Vance, has, after makingsome emotional and financial recovery from the events herein, made a sustained effort to investigate and analyse what went wrong atthat time. The Law Society complaint hearing may have provided some focus in that regard. Mrs.

Vance says that through her researchand review of the file material she received through the Small Claims action and from the defendant's office, she developed a clear andbetter realization as to the circumstances giving rise to the forced sale of their property. She indicates that she also now has better accessto legal advice, although the Vances are self-represented for this application. [17] Mrs. Vance presents as being very committed and sincere as to wishing to have her day in court with respect to this matter, andMr. Vance as sincere in his support of Mrs. Vance and this wish as well.

The motivation for their claim does not present as frivolous orvexatious. [18] In deciding this matter, one of the difficulties for the court is a concern that in permitting the notice of withdrawal to be setaside, I deprive the defendants of the benefit of their settlement and that also I may be exposing Mr. and Mrs. Vance to the pursuit ofwhat might be very difficult and ultimately unsuccessful litigation with an exposure to consequences and costs in Supreme Court that arefar more extensive than anything that occurs in Small Claims Court. [19] In the Desbiens v.

Farquhar decision referred to earlier, where an effort to set aside a settlement was unsuccessful, theHonourable Judge Murphy referred to the following passage from the decision of MacFarlane J., as he then was, in Bank of Montreal v.Arvee Cedar Mills Ltd. et al, (1978) (BC SC), 93 D.L.R. (3d) 58 (B.C.S.C.) at page 68: I have concluded that the Court ought not to lend its authority to compel the performance of an agreement which was the result of such amisapprehension by the defendant's solicitor of his instructions.

To do so would be to impose upon Thompson a substantial financialburden, which he had not agreed to assume, and to jeopardize his main asset. He contends that his refusal to consent to judgment againstArvee is based upon a strong conviction that it would be wrong to do so. He says that it is a matter of principle and of conscience for himto take that course.

As I understand his assertions they were that he has been condemned in his own community, by persons adverselyaffected by the closing of the Arvee mill, for not having taken a strong enough stand against the Bank, and that he ought to be allowed todemonstrate his determination to oppose the plaintiff's claims and to show a basis for his counterclaim. He also asserts that judgment infavour of the Bank in the Arvee action would affect the rights of a third party.

The evidence and submissions I have before me relating tothe questions and persons involved in the dispute between the Bank and Arvee are not sufficient to permit me to make any finding onthat basis, but I am persuaded that the parties ought to have an opportunity of being heard upon the merits in those two actions, ratherthan being foreclosed on the basis of a settlement to which the defendants had not agreed. [20] Those comments were made in a different factual context from that before me, but some of the same philosophy exists in thiscase. [21] I believe that I should only consider the respective merits of the claim and the defence in general terms, particularly as twosignificant elements of the case, foreclosure proceedings and declarations setting aside settlements, are the exclusive realm of theSupreme Court of British Columbia. [22] I consider that Mr. and Mrs.

Vance have established elements of mistake and misapprehension as well as "other grounds" whichwere not present in the Wilson decision, for example. [23] I consider that they have a legitimate personal interest in pursuing their wish to have a meaningful way of determining themerits of their claim and that there is a possible public interest in an open hearing as to issues of negligence concerning professionalswhose practice affects the general public. [24] I reiterate that the most that this judgment provides is that Mr. and Mrs.

Vance should have the chance to proceed to a hearingbefore a court more qualified than this, to assess their claim on its merits and that Mr. and Mrs. Vance should not take this decision asany endorsement of their claim or any diminishment of potential difficulties they face in establishing a successful claim herein.

[ 25 ] I have not focused on the substantive position of the defendants in these reasons, but they have been referred to in the material filed herein and in the very able submissions of Ms.

Ritchie on their behalf. [ 26 ] On the balance of the material before me, I find that there are sufficient grounds in the particular context of this case to exercise my discretion to grant permission to the claimants to proceed pursuant to Rule 8(6), and I so do. [ 27 ] I also grant the order requesting the transfer of the claim to the Supreme Court of British Columbia. [ 28 ] I note again that all the original defences remain, of course, open to the defendants, plus the further possible remedies that arise from the settlement and releases and the passage of time since those events. [ 29 ] I have considered making an order for security for costs as an adjunct to the granting of this permission, deposit of the $6,500 settlement proceeds for example, but ultimately I have decided not to presume or interfere with what might be applied for or ordered in this regard in the Supreme Court of British Columbia. [ 30 ] So, Mr. and Mrs.

Vance, you have permission to go ahead and Ms. Ritchie, do you want the court to draw that order, or do you want to draw the order? [ 31 ] MS. RITCHIE (via teleconference): Well I -- if -- if appropriate, I'd prefer the court. It's just that I've been scribbling notes, but I don't have your entire reasons of course, and I am actually leaving on holidays as of Wednesday for three weeks, so I could do it, but it would be later probably. [ 32 ] THE COURT: That is fine. I will have the court draw the order, and do you want to approve the form of the order or -- [ 33 ] MS.

RITCHIE: Well, I presume Your Honour will see it, right? [ 34 ] THE COURT: Yes. [ 35 ] MS. RITCHIE: Yes, that will be fine, Your Honour. [ 36 ] THE COURT: All right; I will just dispense with approval to form of the order by either the Vances or by Ms. Ritchie. [ 37 ] Thank you, Ms. Ritchie. [ 38 ] MS. RITCHIE: Thank you, Your Honour. [ 39 ] THE COURT: Thank you, Mr. and Mrs. Vance. [ 40 ] ANN VANCE: Thank you, Your Honour. (REASONS CONCLUDED)