Machray v. Simpson Date:, 2011 BCPC 309

Citation: Machray v. Simpson Date: 20111115 2011 BCPC 0309 File No: C7099 Registry: Chilliwack IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: JOHN LEWIS MACHRAY CLAIMANT AND: DEAN SIMPSON DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE K. D. SKILNICK Appearing in person: J. L. Machray Counsel for the Defendant: Q. T. Duong Place of Hearing: Chilliwack, B.C. Date of Hearing: October 28, 2011 Date of Judgment: November 15, 2011 Introduction [ 1 ] The Claimant John Lewis Machray brings this action against the Defendant Dean Simpson, who is a Notary Public, practicing in Chilliwack, BC.

Although the Notice of Claim does not clearly state so, the Claimant is suing the Defendant for professional negligence. The Notice of Claim alleges that the Defendant gave information to the plaintiff’s counsel in a Supreme Court lawsuit challenging a codicil drafted by the Defendant. It also alleges that the Defendant altered the information he provided and refused to discuss that information with the Claimant.

The Claim alleges that, as a beneficiary of that estate, the Claimant suffered damage in that he was required to incur legal fees in excess of $25,000 in the Supreme Court action that he now seeks to recover from the Defendant. [ 2 ] The Claimant had no contractual relationship with the Defendant and the Defendant was not a party to the Supreme Court litigation.

If the Defendant is liable to the Claimant in connection with this matter, the only way this would appear possible would be if the Defendant had been negligent and if it was foreseeable that the Claimant may have suffered a loss as the result of that negligence. [ 3 ] The Defendant denies that hew owed any duty of any sort to the Claimant. His Reply further states that if the Claimant is entitled to any costs in connection with the Supreme Court litigation, he ought to have sought an order from that court and should have added the Defendant as a party to that litigation.

He also denies any negligence on his part and states that any damage the Claimant may have suffered is too remote to be attributable to the Defendant. He adds that the Claimant failed to take any steps to mitigate his damages. [ 4 ] At the trial of this matter each of the parties testified and was cross-examined. The Claimant also subpoenaed the Defendant’s brother Scott Simpson to give evidence as well as his own brother-in-law, Donald Binder. Following is a

summary of the evidence heard, the applicable law, the application of that law to the evidence presented and the reasons for the judgement given.

Summary of Evidence [ 5 ] The Claimant John Lewis Machray is the son of the late Robert Machray . Sometime in or around 1974, Robert Machray was divorced from the Claimant’s mother and remarried a woman who became his wife, Violet Machray . The two of them were married for around 34 years before each passed away in 2008. Violet Machray passed away first, and Robert Machray died on August 1, 2008. [ 6 ] On April 30, 1997, Robert and Violet Machray executed their last wills and testaments. The wills were prepared by a notary public (not the Defendant) and each of their wills contained similar provisions.

Each of the wills named the other spouse as executor or executrix of the respective estates. Clause 3 of each of these wills appointed alternate executors or executrices and provided for the distribution of the estate. The wills named the Claimant and Violet’s daughters Mary Ellen Iacoviello and Susan Lynn Wrench to act as alternates. [ 7 ] On April 14, 2005, Robert and Violet Machray came to see the Defendant and instructed him that they wished to change the alternate executors/executrices named in their respective wills.

Mary Ellen Iacoviello was to remain in this capacity, but the Claimant and Susan Lynn Wrench were to be removed as alternates and Robert Machray’s son Robert Douglas Machray (known as Douglas) was to be added. [ 8 ] The Defendant had a system in his office in which he conveyed instructions to his assistant on a form prepared for that purpose. The assistant was to then prepare a codicil to the wills based on the instructions the Defendant gave on the form. The Defendant wrote the following instructions on the form in this case to his assistant: “Revoke clause 3. New clause 3-spouse executor first in both wills.

Alternate Executors in both wills -Robert Douglas Machray (son of husband) -Mary Ellen Iacoviello (daughter of wife) ( oldest child of each)” [ 9 ] The Defendant’s assistant prepared a codicil to each will containing two paragraphs. The codicil to Robert Douglas Machray’s will read as follows: 1. I HEREBY amend my said Will by deleting paragraph 3 and replacing it with the now named new paragraph 3 as follows: “3. TRUSTEES AND EXECUTORS I APPOINT my son ROBERT DOUGLAS MACHRAY and my stepdaughter MARY ELLEN IACOVIELLO to be the Executors and Trustees of this will.

I hereinafter refer to the Executors and Trustees of this will for the time being and from time to time of this will, whether original or substituted as “my trustees”.” 2. In all other respects I confirm my said Will. [ 10 ] The codicils were signed before the Defendant and his assistant. Presumably they were reviewed by the Defendant before they were executed. Regrettably, what was not noticed at the time was that, by deleting paragraph 3 of the original will, the codicil deleted the entire distribution clauses of each will. In his evidence the Defendant did not see this as a major problem.

It was apparent to him that what was meant was that only that portion of paragraph three appointing executors or executrices was being deleted and the remainder of paragraph 3 was to remain in the original will. In cross-examination he did admit that “in hindsight, the codicil could have been done much clearer.” [ 11 ] The codicil resulted in a disagreement in how the will was to be interpreted, following the deaths of Robert and Violet Machray . On May 26, 2009 Mary Ellen Iacoviello commenced an action in the Supreme Court of British Columbia in her capacity as the surviving executrix of each estate.

The Claimant was named as a defendant in the Supreme Court action, both on his own behalf and as executor of his brother’s estate. His sister Sharon Gail Bender and Violet’s daughter Susan Lynn Wrench were also named as defendants in the Supreme Court action. That action asked the court for a declaration interpreting the will in the manner that Ms. Iacoviello believed it was intended to have been written.

The Claimant and his fellow defendants in that action filed a Statement of Defence which alleged that the will and codicil, read together, did not provide for the distribution or administration of property. [ 12 ] The Defendant provided a set of “amended notes” in which he made additions to his original notes after the fact.

To the original notation reading “revoke clause 3”, he added “(executor portion)” and he also added the notation “all other aspects stay the same.” He testified that he altered his original notes on the advice of the Society of Notaries. [ 13 ] On October 30, 2009, all of the parties to the Supreme Court action signed a settlement agreement, which contained a plan for distribution of the disputed estates. The Settlement Agreement also provided that the parties would not “make any claim or take proceedings against any other person or corporation who might claim contribution or indemnity from” the other parties.

The Defendant was not a party to the Supreme Court action and he is therefore not in a position to claim any protection from this section. In any event, it is unclear how the Defendant could claim indemnity from the other parties to the Supreme Court litigation. [ 14 ] The Claimant testified that he paid over $21,000 in legal fees in order to defend himself in the Supreme Court action. He claims that he had to incur these costs as the result of the Defendant’s negligence and seeks to recover these from the Defendant. For some reason the Claimant chose not to enter his legal bills in evidence.

Counsel for the Defendant takes the position that the Claimant has not

proven that the legal bills he incurred arose as the result of any negligence on the part of the Defendant. [ 15 ] The Claimant also called his brother-in-law Donald Binder as a witness regarding a meeting that Mr. Binder had with the Defendant. According to Mr. Binder, the Defendant was unable to produce his file in that meeting, and perhaps the Claimant’s intent in calling this evidence was to suggest that this is suspicious and implies some sort of wrong-doing on the part of the Defendant, but there was nothing in the evidence of Mr.

Binder that was probative to the issues in this action. [ 16 ] The Claimant also subpoenaed the Defendant’s brother Scott Simpson, also a notary in the Defendant’s office. Scott Simpson did not have any evidence to give to advance the Claim and it is likely that he was subpoenaed simply for nuisance purposes. Both Scott Simpson and the Defendant testified that on a number of occasions the Claimant would come to their offices without an appointment and act in a disruptive manner.

They would attend on the Claimant in an effort to minimize the disruption, and while the Claimant and Defendant gave different evidence about what took place on these occasions, it was clear that the Claimant acted in a manner that was inconsiderate to the Defendant’s staff as well as to those clients of the Defendant who had made appointments and whose appointments were delayed while the Defendant had to deal with the Claimant’s unforeseen interruptions.

Position of the Parties [ 17 ] The Notice of Claim alleges that by providing altered information to the Supreme Court, the Defendant adversely affected the outcome of the Supreme Court litigation. It alleges that as the result of this the Defendant’s rights as a beneficiary of the estate have been adversely affected, resulting in the Claimant having to incur legal fees needlessly. [ 18 ] The Defendant states that this is really a claim alleging negligence and I agree that this is an accurate characterization of the claim. The Defendant argues that he did not owe the Claimant any duty of care.

He also argues that the Claimant has failed to prove any professional negligence because he has not called any expert evidence to prove that his conduct failed to meet the standard of care required of a Notary Public under these circumstances. Even if the Defendant’s conduct can properly be characterized as negligent, he argues that the Claimant has not proven that he suffered any loss as the result of that negligence. By refusing to enter his legal bills into evidence, the Defendant argues that the Claimant has not proven that the legal costs he incurred are the direct result of the Defendant’s negligence.

Finally, the Defendant argues that section 19(4) of the Small Claims Act prohibits this court from ordering the Defendant to pay the Claimant’s legal fees. Analysis [ 19 ] In order for the Claimant to prove that the Defendant is liable for negligence he must prove three things: (

a) that the Defendant owed him a duty of care; (

b) that the Defendant breached that duty of care; and (

c) that the Claimant suffered damages which flow from that breach. [ 20 ] In order for a defendant to owe a duty of care, the law requires that defendant to take reasonable care to avoid acts or omissions which can be reasonably foreseen as likely to injure his or her neighbours. To determine who, in law, is a neighbour, the court must first consider if there is a sufficiently close relationship between the parties so that, in the reasonable contemplation of the defendant, carelessness on his or her part might reasonably cause damage to that person.

The Supreme Court of Canada has indicated that policy issues should be taken into consideration in determining whether there are any factors which justify denying liability. [ 21 ] The standard of care is the measure against which the defendant’s conduct is assessed. In considering whether the standard of care was breached, a court must consider whether the conduct complained of fell below the standard of conduct of a reasonable person in the same position as the defendant. For example, a lawyer or notary is obliged to act like a reasonably prudent lawyer or notary.

The test is not whether the performance was to the best of any particular defendant’s ability, but whether the defendant’s conduct was up to the standard of a person of average competence in exercising their particular profession. [ 22 ] In a case where a professional person is alleged to have failed to meet the standard of care required in that profession, it is usual for the claimant to call evidence to show what the standard of care required by that profession is.

There may however be occasions where, even in the absence of such proof, it is obvious that the defendant’s conduct has fallen short of what is reasonable under the circumstances. [ 23 ] A claimant must prove negligence on the balance of probabilities to succeed in an action for negligence. There can be no liability for negligence unless some damage has been suffered by the claimant as a result. The claimant must prove, on the balance of probabilities, that the damages claimed for were the result of the breach of the duty of care that was owed by the defendant.

The most commonly employed technique for determining causation is called the “but for test”. The Claimant must show that he wouldn’t have suffered the damage complained of, but for the defendant’s negligence. [ 24 ] In this case, the Claimant failed to call any evidence to show what the standard of care of a notary in the Defendant’s position was. Normally that will be fatal to the claim. In this case however, I am satisfied that the Defendant has failed to meet the standard of care expected of a reasonably prudent notary public.

He had the Claimant’s father and step-mother sign a codicil to a will which deleted the entire distribution clause of their will, without replacing it with anything. While this oversight can be corrected by a court order, such corrective action is expensive and cumbersome. People seek the services of professionals in order to simplify the distribution of their estates, not to complicate it. The error is apparent on a simple reading of the will and codicil and no expert evidence is required to prove the obvious.

It is disappointing that the Defendant attempts in his evidence to gloss over this or to suggest that it should be obvious to everyone what he meant, i.e. that by deleting clause 3, he only meant to delete that portion of it that pertained to the appointment of executors or executrices. I do not accept the suggestion that the Society of Notaries would see this as a trivial matter, and if I am wrong about this, perhaps that is the best endorsement for people to have their wills drafted by lawyers rather than notaries.

[25] I am also satisfied that the Claimant is among those persons to whom the Defendant owed a duty of care in providing hisprofessional services. It is reasonable for the draftsman of a will to anticipate that any errors would be potentially harmful to beneficiariesand potential beneficiaries under that will.

The Claimant is among those persons that the law considers as the Defendant’s “neighbours”in this situation, and the Defendant ought to have foreseen that carelessness in the drafting of a codicil may injure a beneficiary such asthe Claimant. [26] I find however that the Claimant has failed to prove that legal fees he incurred were the result of the Defendant’s negligence. It isunclear why he chose not to enter the legal bills he was claiming for into evidence. By doing so, he failed to prove the nexus betweenthese bills and the Defendant’s negligence. A court can not infer this, the Claimant must prove it.

Do the legal services claimed fordirectly relate to the Defendant’s negligence? Was the Claimant able to mitigate his loss? Could the action have been settled at an earlierstage for a lesser amount? A defendant does not have to take a claimant’s word on this matter. He or she is entitled to contest thisassertion by reviewing the legal bills presented to the court by the claimant. [27] There is also the issue of whether or not this court has the power to order one party to pay another party’s legal fees. Section19(4) of the Small Claims Act reads as follows:

(4) The Provincial Court must not order that one party in a proceeding under this Act or the rules pay counsel or solicitor's fees to anotherparty to the proceeding. [28] It has been held in this court that the intent of this

section is not restricted only to costs in the action before the court. Themandate of the Small Claims Court is to resolve matters in an inexpensive fashion. Awarding solicitor-client costs is not consistent withthat mandate. The Small Claims Court does not have the authority to award those costs either directly or indirectly. This court has heldaccordingly in a number of decisions including Canadian Imperial Bank of Commerce v. Washburn [1993] BCJ No. 2706; Lago v.Zimmerman [1998] BCJ No. 3269; Faulkner v. Sellars (1998) 9 C.C.L.I. (3d) 247; Gord Hill Log Homes Ltd. v.

Cancedar Log Homes(B.C.) Ltd. 2006 BCPC 480; McGillion v. Barnett 2007 BCPC 10. [29] The only exceptions to this principle may be in the case of a lawyer who sues for payment of legal fees that are owing to him orher, or where a claimant is suing on a contract in which the defendant expressly agreed to pay such costs. In International KnitwearArchitects Inc. v.

Kabob Investments Ltd. (1997) (BC CA), 40 B.C.L.R. (3d) 70, Madam Justice Southin of theBritish Columbia Court of Appeal wrote at paragraph 7: “In my opinion, s. 19(4) of the Small Claims Act does not debar a litigant in that court from recovering an amount due under a contractualterm relating to costs and expenses. Such a claim is in substance a claim in debt.” [30] Neither of these exceptions applies here and accordingly this court can not give the Defendant his judgement for the legal feesthat he incurred in the Supreme Court of British Columbia. Order [31] For the forgoing reasons, this Claim is dismissed.

Because some fault has been found with both parties, each party shall bear theirown costs of this action. Dated at the City of Abbotsford, in the Province of British Columbia this 15th day of November, 2011. ________________________________ The Honourable Judge K. D. Skilnick