Trout v. MacEwen Date:, 2011 BCPC 266

Citation: Trout v. MacEwen Date: 20110622 2011 BCPC 0266 File No: C59517 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ANDREW TROUT CLAIMANT AND: WILLIAM A. MacEWEN AND DAVIS AVIS MacEWAN LLP DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MacCARTHY Appearing on their own behalf: Andrew Trout Counsel for the Defendant: K. Simmons (appearing by teleconference) Place of Hearing: Nanaimo , B.C.

Date of Judgment: June 22, 2011 [ 1 ] THE COURT: This matter came on before me for hearing on April 27, 2011, and today I am going to be rendering my oral reasons for judgment with respect to this matter. Introduction [ 2 ] The claimant has sued the defendant William A.

MacEwen, who is a lawyer, and his defendant law firm for alleged negligence by the defendants in the filing of a builder's lien against lands owned by Paul Richard Sanderson and Jean Sanderson located at 1860 Grafton Avenue, Errington, British Columbia, and on which lands (the "Cottage Lands") the claimant was hired in the fall of 2008 to construct a cottage (the "Cottage Project"). [ 3 ] The claimant has closed his case. [ 4 ] The defendants have applied for dismissal of the claimant's case on the grounds that there is no evidence to support the claimant's claim.

In doing so, the defendants have reserved the right to call evidence in the event that their application is dismissed. [ 5 ] The claimant represented himself at the trial and also testified on his own behalf as the only witness called by the claimant.

Therefore, no expert witnesses were called by the claimant and there is no expert report filed in support of the claimant's claim. [ 6 ] At the trial, and before closing his case, the claimant was offered the opportunity to adduce admissible expert evidence, and it was explained to him by me of the importance in doing so. [ 7 ] The defendants' counsel provided the court with a detailed written submission which outlined both the legal arguments being advanced on behalf of the defendants and the leading case authorities with respect to the legal issues raised in this application.

These case authorities to which I was referred and the principles for which they stand accord with my own review of the law. It was a very

helpful submission. [ 8 ] As would be expected, the self-represented claimant did not provide a written submission nor did he make reference to any legal authorities. He did present useful arguments with respect to this application which I have also considered carefully in making my decision. Background [ 9 ] The claimant is a contractor and builder. Paul Richard Sanderson was a long-time acquaintance and client of the claimant. The claimant and Mr. Sanderson had a lengthy business relationship with each other. The claimant had worked on other projects for Mr. and Mrs.

Sanderson. [ 10 ] In March of 2008, preceding any work on the Cottage Project, Mr. and Mrs. Sanderson had engaged the claimant to do refurbishment work on their farmhouse in Errington, B.C. (the "Farmhouse Project"). Also, in August of 2008, Mr. Sanderson had arranged for his company, Sanderson Hotels & Resorts Inc. ("Sanderson Inc."), to extend a loan pursuant to a written agreement to the claimant and his wife in the amount of $75,000 with nominal interest (the "Sanderson Inc. Loan"). The terms of repayment of the Sanderson Inc.

Loan were based, in part, upon 20 to 25 percent of the progress payments received by the claimant from the amounts due him under the Cottage Project and with a final due date on the remaining balance on August 22, 2009. [ 11 ] The claimant stated that he had past experiences with Mr. Sanderson's volatile nature. Such an occasion arose in or around December 8 to 10 of 2008. The claimant rendered an account in the amount of $16,000 for work completed on the Cottage Project. An argument arose between the claimant and Mr.

Sanderson when he presented a cheque in this invoiced amount to the claimant and the claimant did not have a cheque to deliver back to Sanderson Inc. for payment on the Sanderson Inc. Loan. [ 12 ] During the course of the argument, Mr. Sanderson terminated the claimant's engagement on the Cottage Project and warned the claimant that he would not make necessary arrangements with his bank to cover the amounts of the cheque. [ 13 ] The claimant presented the cheque at the payor's bank.

It was not honoured. [ 14 ] In or around December 19 of 2008, the claimant rendered a further invoice in the amount of $37,275 in connection with the Cottage Project for unpaid building materials. The claimant also sought legal advice from the defendants in the early part of January 2009 and instructed them to file a builder's lien against the Cottage Lands. [ 15 ] Based on those instructions, the defendants filed a lien in the Victoria Land Title Office on the 13th day of January 2009 under Number CA10018055 on behalf of the claimant (the "Builder's Lien").

It claimed an amount of $73,756 for "supplied building materials, labour and management for construction of cottage." [ 16 ] Mr. and Mrs. Sanderson vigorously disputed the Builder's Lien and caused their lawyers to serve on the claimant a 21-day notice to commence an action. The claimant responded by instructing the defendants to prepare, file, and serve a British Columbia Supreme Court writ of summons and statement of claim to enforce the Builder's Lien (the "Lien Action"). [ 17 ] Mr. and Mrs.

Sanderson's lawyers filed a statement of defence inter alia challenging the validity of the Builder's Lien and the amount claimed there under and also indicated to the claimant the intention of Mr. and Mrs. Sanderson to vigorously defend the Lien Action. [ 18 ] The claimant intended to handle the Lien Action on his own behalf and also intended to consult with the defendants when he considered it necessary to do so. [ 19 ] There is no evidence that the defendants were retained generally to act on the Lien Action.

In fact, there is evidence that the defendant MacEwen declined to act further for the claimant in the Lien Action. [ 20 ] On April 24, 2009, Mr. and Mrs. Sanderson also commenced a British Columbia Supreme Court action against the claimant in connection with the Farmhouse Project (the "Farmhouse Action").

In the Farmhouse Action, the plaintiffs alleged overcharges by the claimant and sought an accounting and repayment of amounts overpaid by them and further alleged deficiencies in the work performed by the claimant and sought damages to remedy the alleged deficiencies. [ 21 ] On April 24, 2009, Sanderson Inc. also commenced a British Columbia Supreme Court action against the claimant and his wife, Alice Trout, alleging a default in repayment by them under the Sanderson Inc.

Loan and seeking inter alia a judgment in the principal amount alleged to be owing of $53,500 plus interest (the "Loan Action"). [ 22 ] Although there is correspondence from Mr. and Mrs. Sanderson's lawyers to the defendants regarding the Farmhouse Action and the Loan Action, there is insufficient evidence before me to conclude that the defendants agreed to assume conduct of those matters on behalf of Mr. and Mrs. Trout. [ 23 ] The claimant hired another lawyer, Mr.

Bartlett, to file statements of defence in the Farmhouse Action and the Loan Action and to conduct settlement negotiations with the lawyers representing Mr. and Mrs. Sanderson and Sanderson Inc. [ 24 ] Settlement was reached on July 23, 2009, and is evidenced by a document entitled Transcription of Terms of Settlement .

Under the settlement arrangement, all three actions were settled and the claimant and Alice Trout paid what appears to be an all-inclusive settlement of $40,000 to Sanderson Inc. of which $5,000 was acknowledged to "represent a settlement of the legal cost component of the Lien Action." [ 25 ] The claimant and his wife were also responsible for discharging two separate builder's liens filed by material men against the Cottage Lands arising out of the Cottage Project as follows: the amount of $11,338 was paid to Windsor Building Supplies Ltd., and the

amount of $9,867.50 was paid to Hi-Tec Industries Ltd. Consent dismissal orders were apparently filed in each of the three actions, and the parties apparently signed a mutual release. [ 26 ] The claimant alleges that the defendants were negligent in claiming an excessive amount under the Builder's Lien and in the Lien Action which thereby caused the Sandersons to initiate the Farmhouse Action and the Loan Action. The claimant claims the following against the defendants on the notice of claim: (

a) costs of the lien submitted by Davis Avis MacEwen LLP - $210, (

b) cost of out-of-court settlement - $26,049.35, (

c) legal costs to Bartlett & Company - $12,089.37, which amount totals $38,348.72 plus filing and service fees. [ 27 ] The claimant abandons the amount of $25,000 to bring his claim within the monetary jurisdiction of this court. [ 28 ] The claimant speculates that if some lesser amount had been claimed under the Builder's Lien, he would have been able to resolve the Builder's Lien and the Lien Action directly with Mr.

Sanderson on terms favourable to the claimant and would not have faced matters raised in the Farmhouse Action and the Loan Action. [ 29 ] There is insufficient evidence before me to support this speculation.

It is more in the nature of what could or should have been done or what strategy should have been followed in these circumstances, but only with the full advantage of hindsight. [ 30 ] As noted above, no expert evidence was put before me by the claimant to support the contention that the defendants were negligent in the preparation and the filing of the Builder's Lien. [ 31 ] Similarly, there is no expert evidence before me as to what a reasonably competent solicitor would have done in this particular set of circumstances. [ 32 ] I accept from the claimant's evidence that he found all of these legal actions to have caused him great stress.

He no doubt felt very overwhelmed. All of this contributed to his inability to remember several important details surrounding the matters subject of this action. Issues [ 33 ] The issues for me to decide in this application are: (

a) whether I, as the trier of fact, can reasonably find for the complainant on the evidence before me; (

b) to do so, I must decide whether there is evidence before me to support each element of the cause of action that the complainant must prove in order to succeed in their claim against the defendants. Analysis of the issues on the application [ 34 ] The defendants rely upon Edgar v. British Columbia , 2004 BCSC 543 , which, at paragraph 6 , confirms the following with respect to the question for consideration by the court on such a motion, namely: . . . whether there is any evidence on which the trier of fact can reasonably find for the plaintiff.

It is for the trier of fact to determine whether there is some evidence to support each element of the cause of action that the plaintiff must prove in order to succeed. [ 35 ] As argued by the defendants, the above articulation of the test is founded on two cases: firstly, from the Court of Appeal in Roberge v.

Huberman , 1999 BCCA 196 at paragraph 18 , where the court said: In civil cases, trial courts have generally accepted, at least in British Columbia, that a plaintiff can be non-suited for a failure to call evidence on an essential ingredient of the case such that any judgment for the plaintiff would be wrong in law. The defendant is permitted to argue that the plaintiff's case is deficient without electing whether to call evidence. [ 36 ] The second and more recent case is Seiler v.

Mutual Fire Insurance Co. of British Columbia , 2003 BCSC 1423 , where the court stated, at paragraph 15: Regardless of whether the plaintiffs' claim is in tort or contract, a key element they must prove is that the defendants failed to meet the tort law standards of care required of professionals in their respective disciplines, or standards they implicitly warranted in any contract that they would meet in carrying out the work they did. [ 37 ] The claimant's action against the defendants is pleaded in negligence. Therefore, the following elements must be established: (

a) the existence of a duty of care of the alleged wrongdoer to the alleged injured party; (

b) the relevant standard of care of the alleged wrongdoer owed to the alleged injured party; (

c) the breach of that relevant standard of care owed by the alleged wrongdoer to the alleged injured party; and (

d) the foreseeable loss or damage caused to the alleged party by the breach of the duty and the standard of care owed to the alleged injured party. [ 38 ] In order to succeed in his claim, the claimant therefore has the burden of proving the following:

(

a) the existence of a duty of care owed by the defendants to the claimant; (

b) the relevant standard of care to be followed by the defendants in discharging that duty; (

c) that the defendants breached that relevant standard of care; and (

d) that the breach caused foreseeable loss or damage to the claimant. [39] The defendants do not dispute that there is a duty of care owed by the defendants to the claimant. However, they do say that inthis case the claimant has failed (

a) to adduce any evidence to establish the standard of care to be met by the defendants; (

b) to adduceany evidence that the actions of the defendants caused him damage. Evidence required to establish the standard of care [40] As correctly detailed in the defendants' written argument, the following passage often appears in cases relating to claims forsolicitor's negligence: The classic definition with respect to negligence of lawyers is found in Groom v. Crocker, [1939] 1 K.B. 194, [1938], 108 L.J.K.B. 296. Lawyers are bound to exercise a reasonable degree of care, skill and knowledge in all legal business they undertake. Their liability arisesout of contract.

The standard of care and skill which can be demanded from a lawyer is that of a reasonably competent and diligentsolicitor. It is not enough to prove that the lawyer has made an error of judgment or shown ignorance of some particular part of the law; itmust be shown that the error or ignorance was such that an ordinarily competent lawyer would not have made or shown it. [41] The defendants have referred me to the Alberta Court of Appeal decision in De Yong v.

Weeks, 1984 ABCA 262 , 55A.R. 305 at paragraph 34, which cites this above-noted passage with approval. [42] Therefore, based on the authorities, the standard of care owed by a solicitor to his client is described as that of a "reasonablycompetent solicitor." [43] It remains for the court to answer the specific question: What must the reasonably competent solicitor do in a given set ofcircumstances?

In order to answer this question, the legal authorities are clear that in most circumstances there must be expert evidencebefore that court. [44] In support of this proposition, the defendants rely upon the British Columbia Court of Appeal decision in Zink v.

Adrian, 2005BCCA 93, where Madam Justice Southin stated, at paragraphs 43 and 44: [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 theabsence of expert 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 ordinaryperson may be expected to have knowledge" . . .

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

One must not overlook that the reason some judges are judges is that whilst theywere practising the profession they were of a standard far above that of the ordinary reasonably competent member of the profession. [45] This passage was cited with approval in the British Columbia Supreme Court decision of Sports Pool Distributors Inc. v.Dangerfield, 2008 BCSC 9 at paragraph 62. [46] The defendants further argue that another way of approaching the consideration for expert evidence was stated in Edgar v.British Columbia, supra, at paragraph 7 (relying on Seiler v.

Mutual Fire Insurance Co. of British Columbia, supra, at paragraphs 16, 17,and 38): ... where a lay person cannot draw inferences as to the standard of care and causation as a matter of common knowledge, the plaintiff isrequired to lead expert evidence on such issues in order to overcome a no evidence motion. [47] As was stated by our Court of Appeal in Roberge v. Huberman at paragraph 56: There may be cases in which the issue as to standard of duty turns so much on the question of "appropriate documentation" that onlylawyers practising in the particular field can throw light on the question.

Evidence of that kind is undoubtedly useful in some cases, mostcommonly where the issues involve abstruse questions of conveyancing practice. [48] I agree that this is one of those cases. The allegations of negligence against the defendant MacEwen arise out of his conduct infacilitating the preparation and registration of a builder's lien. Like many other areas of law, including conveyancing, builder's liens arean area of significant technicalities and precision where specified documents are required and particular steps must be taken withincertain time limits.

The Builders Lien Act is a complex piece of legislation containing complex concepts. The amount that can beclaimed and proven under a builder's lien will often be subject to the

interpretation and construction of the agreement between the partieswhich has given rise to the lien, and all of this is often the subject matter of both disputes and litigation between the parties. [49] This is a case that requires that there be some expert evidence before the court, adduced by the claimant in order to establish therequisite standard of care that must be met by the defendants. [50] There is no such evidence before me outlining what steps are required in the preparation and registration of a builder's lien by areasonably prudent solicitor in the particular circumstances of this case.

I therefore conclude that the absence of that evidence istherefore fatal to the claimant's claim.

[ 51 ] Establishing a standard of care is a required element to prove negligence. In the absence of that evidence, this required element cannot be proven and this application for dismissal is therefore granted in favour of the defendants.

Causation of damages [ 52 ] Having failed to establish the standard of care, I agree with the defendants that the claimant cannot therefore ask the court to assess whether or not that standard has been breached, but assuming for the moment that the claimant had, in fact, established the standard of care, and assuming also that there was sufficient evidence to support the contention that the defendants had breached that standard, I also agree with the position of the defendants that the claimant has failed to adduce evidence that such a breach caused the claimant any damage. [ 53 ] I agree with the defendants' submission that this question of causation is one of fact.

They note correctly that the test for causation has recently been articulated in Resurface Corp. v. Hanke , 2007 SCC 7 , where the court notes that the starting point is the "but for" test found in paragraphs 21 to 23 as follows: 21 First, the basic test for determining causation remains the "but for" test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that "but for" the negligent act or omission of each defendant, the injury would not have occurred.

Having done this, contributory [and then reference (pages 343)] negligence may be apportioned, as permitted by statute. 22 This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati , at para. 14, per Major J., "[t]he general, but not conclusive, test for causation is the 'but for' test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant". Similarly, as I noted in Blackwater v.

Plint , at para. 78, "[t]he rules of causation consider generally whether 'but for' the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities." 23 The "but for" test recognizes that compensation for negligent conduct should only be made "where a substantial connection between the injury and the defendant's conduct" is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they "may very well be due to factors unconnected to the defendant and not the fault of anyone": Snell v.

Farrell , at p. 327, per Sopinka J. [ 54 ] I agree that in the claimant's case before me there is no evidence connecting the allegation of "improperly filing the lien" to the damages that the claimant alleges he has suffered. To succeed on this element, I agree with the defendants that the claimant must prove his speculation that the Sandersons would not have sued the claimant in the Cottage Action and that Sanderson Inc. would not have sued the claimant and his wife in the Loan Action but for the alleged negligence of the defendant MacEwen. [ 55 ] There is no evidence of that before this court.

There are allegations made of the "inflated lien" in the Loan Action statement of claim which alleged cloud the title to the Cottage Lands. Significantly, the Cottage Lands were not owned by Sanderson Inc., which is the named plaintiff in the Loan Action and to which action the Sandersons were not named as a party. [ 56 ] There are also allegations in the Loan Action statement of claim that Mr.

Trout was terminated from his work on the Cottage Project "due to significant irregularities in his management of and his billings" for this project. [ 57 ] Those allegations were specifically denied in the statement of defence filed by Mr. and Mrs. Trout. The fact remains that the Loan Action was based on a $53,000 loan upon which Mr. and Mrs. Trout allegedly defaulted. [ 58 ] The statements made in the statement of claim pertaining to the Sanderson Inc. Loan are merely allegations.

They have not been proven and they are not facts that I can accept in this action. [ 59 ] I agree with the position of the defendants that in a builder's lien action, the primary issue is the amount of the lien. It is not unusual for allegations to be made that the amount of the lien claimed is inflated. The entire purpose of lien action is to cause the claimant to prove the claim of lien. [ 60 ] The defendants argue that the Sanderson Inc. Loan between Sanderson Inc. and Mr. and Mrs.

Trout and the Loan Action are "factor[s] unconnected to the defendant" as contemplated by the above-quoted passage referred to in Resurface Corp. v. Hanke . I agree.

The same is true of the substance matter of the Farmhouse Project and the Farmhouse Action. [ 61 ] Based on my findings above, although the claimant has not framed his claim in contract, I further note that there is also an absence of expert evidence before me to support a claim by the claimant that the defendants breached any contract between them by not providing legal services pursuant to an implied term that those services must be to a standard of a reasonably competent and diligent solicitor.

The claimant has also not proven that he has suffered damages as a result of any alleged breach of that contract. [ 62 ] Accordingly, based on the evidence that is before me at the close of the claimant's case, the claimant cannot success in breach of contract. Conclusion [ 63 ] I therefore find that the claimant in this action has failed to prove all of the essential elements of negligence. In the absence of the required evidence before me on these crucial points, I must therefore dismiss the claimant's action against the defendants.

The defendants will be entitled to recover any court filing fees and any service fees. There will be an order accordingly. [ 64 ] This concludes my reasons for judgment in this matter. (REASONS CONCLUDED)