Chen v. Melville and Scott Date:, 2014 BCPC 380

Citation: Chen v. Melville and Scott Date: 20141209 2014 BCPC 0380 File No: C76141 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims Court BETWEEN: XING CHEN CLAIMANT AND: J. BRUCE MELVILLE and PETERSON STARK SCOTT DEFENDANTS RULING ON APPLICATION OF THE HONOURABLE JUDGE J.A. OULTON Appearing in person: X. Chen

Counsel for the Defendants: B. Stock Place of Hearing: Surrey, B.C. Date of Hearing: November 14, 2014 Date of Judgment: December 9, 2014 [1] THE COURT: This is my decision on the defendants' application to dismiss Mr. Chen's claim before a settlement conferencehas been held in this matter. [2] The defendants, who are a lawyer and the law firm he is with, seek an order dismissing the claim against them on the basis thatit is without reasonable grounds and discloses no triable issue. In support of their application, the defendants filed two affidavits of thelawyer Mr.

Melville, one affidavit from his legal assistant Ms. Fontaine, written submissions, and a book of authorities. I have read allthese in coming to my decision. I have also read the pleadings and considered the submissions of both parties, and the evidence filed byMr. Chen at this application which was heard on November 14th, 2014. [3] The defendants bring the application before a settlement conference and rely on s. 2 and 16(6)(

o) of the Small Claims Rules.

Section 2 reads:

(1) The purpose of this Act and the Rules is to allow people who bring claims to the Provincial Court to have them resolved… in ajust, speedy, inexpensive and simple manner.

(2) The Provincial Court may make any order… it thinks necessary to achieve the purpose of this Act and the Rules. Section 16(6)(

o) reads: A judge may make any of the following orders after a hearing… (

o) Any other order that a judge has the power to make and notice ofwhich is served on the other party. [4] The court does have the power to make an order of dismissal, and I look to Rule 7(14)(

i) for guidance about when such anorder can be made. The rule provides that a judge at a settlement conference may dismiss a claim if a case is (

i) without reasonablegrounds, (ii) discloses no triable issue, or (iii) is frivolous or an abuse of the court's process. In my view the same test should be appliedwhen the court is proceeding under rule 16(6)(o). [5] Dismissal of a claim at this stage of proceedings is a remedy that should be used with caution and only in clear cases. Someexamples of when the remedy is appropriate is when the issue can be decided on a point of law or where a claimant in an action fornegligence is unable to provide any supporting evidence of such negligence. [6] Mr. Chen was self-represented on this application.

English is his second language, but he is a businessman and clearlyintelligent. He chose not to be represented by counsel and confirmed this in an e-mail to the defendants ten days before the applicationwas heard, and he confirmed his intention to represent himself again at the outset of this application. BACKGROUND [7] The background to this matter is that the claimant, Mr. Chen, owned land in Chilliwack, expropriated by the City of Chilliwackon December 27th, 2012. The land was valued by the City at $600,000 as of that date. Mr. Chen received $194,188.87, once themortgage to TD Bank was discharged.

He retained Mr. Melville in April of 2013 to represent him in an expropriation action against theCity of Chilliwack. In his expropriation action against the City, filed April 17, 2013, he estimated the value of the property expropriatedwas $500,000 more than the City had determined, and his claim was for that amount plus $26,166.36 of “disturbance damages” andproperty tax adjustment, for a total claim against the City of $526,166.36. Mr. Chen was travelling and away from Canada from Aprilthrough to December 2013. [8] The lawyer representing the City had a conflict in her

schedule for the trial date scheduled in January of 2014, and onNovember 26th, 2013, asked Mr. Chen's lawyer if he would consent to adjourn the trial and shorten it to two days from the three daysthat had been set in January 2014. Mr. Melville consented in principle to both requests before asking his client, provided she preparedthe paperwork. ANALYSIS [9] I would characterize Mr. Chen's action as one framed in negligence. An action in negligence, to be successful, must establish aduty of care, a breach of the standard of care flowing from that duty, and losses flowing from that breach.

It is conceded, and I find thatMr. Melville, as Mr. Chen's lawyer, owed Mr. Chen a duty of care. [10] With respect to the standard of care Mr. Melville owed Mr. Chen, it is as stated at paragraph 58 by Justice Le Dain for aunanimous Supreme Court of Canada in Central Trust Company v. Rafuse, (SCC), [1986] 2 S.C.R. 147: A solicitor is required to bring reasonable care, skill and knowledge to the performance of the professional service which he hasundertaken.

[11] From my review of the documentary evidence filed, I do not agree that the documentation supports Mr. Melville'sunderstanding that he had the consent of Mr. Chen to agree to adjourn the trial. The trial was scheduled to begin for three days, startingJanuary 21st, 2014. The written documentation supports that Mr. Melville had already agreed in principle to consent to the adjournmentof the trial scheduled in January 2014, on November 26th, 2013, before he had even spoken to his client about it.

However, the realquestion is whether agreeing to another lawyer's request for an adjournment of the trial in the absence of the client's consent is a breachof the standard of care. [12] Law is a self-governing profession. On January 1st, 2013, the Code of Professional Conduct for Lawyers in British Columbiacame into effect. Rule 7.2 is entitled Responsibility to Lawyers and Others, and has a subtitle, Courtesy and Good Faith. 7.2-1, reads: A lawyer must be courteous and civil and act in good faith with all persons with whom the lawyer has dealings in the course of his or herpractice.

Point 4 of the commentary to this rule reads, in part: A lawyer should agree to reasonable requests concerning… adjournments… that do not prejudice the rights of the client. [13] I do not find that consenting to an adjournment without the consent of the client to be a breach of the standard care, given Mr.Melville's obligation under Rule 7 of the Code of Professional Conduct, and his explanation to Mr. Chen by e-mail dated December 3rd,2013, that Mr.

Chen had not told him of any facts as a basis to assert prejudice, which would be the principled reason to oppose areasonable request for an adjournment. [14] Leaving aside the commentary to Rule 7, and Mr. Melville's professional obligation to lawyers and others, Mr. Melville hadbeen hired for his professional advice to Mr. Chen and to act in the best interests of Mr. Chen. Part of that duty would involve informingMr. Chen about the risks of taking positions unlikely to be successful in court, such as opposing a request for an adjournment that Mr.Melville assessed as reasonable and likely to succeed.

Opposing such a request and necessitating a court application would involve courttime, court costs, costs to the client, and the result, in Mr. Melville's opinion, would be the same as if the request had beenaccommodated, but with extra time and money, including Mr. Chen's money, being spent. [15] It appears, from the submissions in the affidavits I have reviewed, as though Mr. Chen may have misunderstood the implicationof an adjournment for his position. It appears he thought the matter had to be fully resolved within a year, which was not the case.

Mr.Chen's claim against the City of Chilliwack had to be filed within a year of the expropriation, and it had been. It appeared also as thoughMr. Chen thought the adjournment would somehow cost him money, but Mr. Melville also reassured him on this front, telling him that ifhis action were successful he would be awarded interest on any additional compensation. [16] Mr. Melville advised Mr. Chen regarding both these areas of concern by way of the same e-mail I have previously referred to,dated December 3rd, 2013 (Exhibit I, page 29 to Affidavit #1 of J. Bruce Melville, sworn October 10, 2014). In my view, Mr.

Melville'saction in agreeing to the adjournment, in all the circumstances, was not a breach of the standard of care he owed to Mr. Chen. If I amwrong in that conclusion, it appears as though Mr. Chen believed the adjournment was relieving the pressure to settle the matter as thetrial date in January 2014 approached, and in that sense, has caused him a loss. [17] Causation in negligence actions is established by the application of the "but for" test. The claimant has the onus of proving thatbut for the negligent act or omission of the defendant, the alleged loss would not have incurred.

This insures that a defendant will not beheld liable for a claimant's alleged losses where the losses may very well be due to factors unconnected to the defendant: ResurfaceCorp. v. Hanke, 2007 SCC 7 , [2007] S.C.J. No. 7 at para. 23. [18] Damages are an essential element of a proof of claim in negligence. Damages for a lost opportunity must be based on areasonable possibility that something was, in fact, lost: Nicols v. Warner, Scarborough, Herman & Harvey, [2009] B.C.J. 1191 at para.27, 2009 BCCA 277. I find this threshold was not met in this application by Mr. Chen.

I heard no evidence, other than conjecture, thatthe expropriation action would have settled before January 21st, 2014 had the trial not been rescheduled. [19] As a result of this series of events, Mr. Chen fired Mr. Melville on December 13th, 2013 and represented himself. The matterdid not settle. I heard no evidence of any attempts to settle before the trial.

The trial was held in Supreme Court October 1st to 3rd,2014, and as of the date of the application, November 14th, 2014, the judgment was reserved. [20] In conclusion, in the result I have found no breach of the standard of care, and if I am incorrect and there was a breach of thestandard of care, I have found no proof of any damages or loss flowing from it. [21] The defendants' application to dismiss Mr. Chen's claim is granted for lack of reasonable grounds and disclosing no triableissue, with costs to the defendants as determined by the registrar. (RULING CONCLUDED)