Jafar Ehsan Petitioner And: Richard P. Begin Respondent v. Docket: S026812, 2003 BCSC 450

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Ehsan v. Begin and LX Lasertech Ltd. v. Begin, 2003 BCSC 450 Date: 20030326 Docket: L023822 Registry: Vancouver Between: Jafar Ehsan Petitioner And: Richard P. Begin Respondent and Docket: S026812 Registry: Vancouver Between: LX Lasertech Ltd. Petitioner And: Richard P. Begin Respondent Before: The Honourable Mr. Justice Williamson Reasons for Judgment Counsel for Jafar Ehsan George Gregory Counsel for LX Lasertech Ltd. Brent Lokash Appearing on his own behalf Richard P.

Begin Dates and Place of Hearing: December 18 & 20, 2002 Vancouver, B.C. [ 1 ] In December 2002, after two days of hearing, I handed down Reasons for Judgment allowing an application to have the respondent, Richard P. Begin, removed as counsel as he was in a conflict of interest. In the final paragraph of that decision, I stated: The petitioners seek special costs. They made submissions on that issue, but as time ran out Mr. Begin was not given the opportunity to reply. He will have liberty to file written submissions on costs within 30 days.

[ 2 ] The respondent filed written submissions January 23, 2003. He filed supplementary submissions on January 24, 2003. On February 4, counsel for Jafar Ehsan filed reply, and on February 6, counsel for LX Lasertech Ltd. filed reply. [ 3 ] Mr. Begin then filed a rebuttal submission. [ 4 ] The respondent filed a lengthy submission - 47 pages single spaced. Most of it, unfortunately, is an elucidation of his disappointment in the decision which was rendered December 24, 2002. However, he does raise the following.

First, he says it was inappropriate for each of the petitioners to file a single action - in other words, they should have cooperated and commenced only one proceeding. Second, he says the matters should have been dealt with by Notice of Motion in the principal actions rather than by way of petitions. Finally, he argues that it is the petitioners that should bear the cost.

In the alternative, he submitted each party should bear its own cost or that if costs are awarded against him, there should only be one set of costs at scale 3. [ 5 ] I am satisfied that there was nothing improper with each petitioner bringing his or its own proceeding. In the end, they were heard together, and little was added by having two separate petitions. The material discloses that at the time Lasertech retained Mr. Lokash to commence this petition, Lokash was advised that the respondent had previously objected to Lasertech and Ehsan being represented by the same counsel.

But Lokash was of the view that the interests of Lasertech and Ehsan may diverge. For both of these reasons, commencing a different proceeding was appropriate. [ 6 ] Second, the respondent says that the issue of whether he was in a conflict of interest and should not act could have been brought by way of Notice of Motion in the underlying actions. [ 7 ] The law may not be absolutely clear on this point. In Kaiser Resources Ltd. v.

Western Canada Beverage Corp. (1992), 71 B.C.L.R. (2d) 236 (B.C.S.C.) the court held that an application for a declaration by way of an interlocutory motion is not authorized by the Rules of Court. In Bell v. Nash , [1993] B.C.J. No. 1873 , Prowse J.A., writing for the Court, stated at para. 22: While it may be true that many applications of this nature are and should be brought within the original action, I know of no rule prohibiting the application being brought by petition. [ 8 ] The practical effect of this dispute is minimal.

The costs involved in a Notice of Motion would be somewhat less than those involved in a petition. The issue is moot in this case, however, because the petitioners have conceded that they are not entitled to greater costs on the hearing of these petitions than they would be entitled to if they had proceeded by way of Notice of Motion. [ 9 ] Finally, the respondent suggests that it is the petitioners or their counsel personally who should pay costs. I am not persuaded. I see no reason why the normal rule should not apply. Costs should follow the event. [ 10 ] But at what level? The petitioners seek special costs.

I see no reason to award special costs to Ehsan. Although the debate between counsel for Mr. Ehsan and the respondent was spirited, I am satisfied there was an issue to be determined and the respondent should not have been denied his day in court. In those circumstances, scale 3 is the appropriate level of costs. [ 11 ] With respect to Lasertech, the matter is more complicated. When Mr.

Lokash was retained for Lasertech he sent a letter to the respondent requesting that the respondent cease acting for individual against the interests of the petitioner - which was, of course, the issue in the proceeding commenced by petition. On December 10, 2002, the respondent replied by letter to Mr. Lokash. In that letter, he wrote, in part, the following: ...if you plead your cases in your draft, I will retain counsel for an action against Mr.

Ehsan personally and against you for malicious prosecution. [ 12 ] Further, in the same letter he wrote: Accordingly, if you were to proceed after knowledge of the foregoing, it could only be to use your knowledge of the law on unfounded facts, to deprive Mr. Shojania of legal counsel. I submit for your consideration, the question of whether this is sharp practice in its worst form. [ 13 ] The petitioner suggests that these two passages are unacceptable and justify an award of special costs.

In other words, to accuse a lawyer of sharp practice and to threaten that he will be sued personally for malicious prosecution is reprehensible as that word is used in the cases: See Garcia v. Crestbrook Forest Industries Ltd. (1994), 1994 CanLII 2570 (BC CA) , 119 D.L.R. (4th) 740 (B.C.C.A.) at para. 17 : 17. Having regard to the terminology adopted by Madam Justice McLaughlin in Young v. Young , to the terminology adopted by Mr. Justice Cumming in Fullerton v. Matsqui , and to the application of the standard of "reprehensible conduct" by Chief Justice Esson in Leung v.

Leung in awarding special costs in circumstances where he had explicitly found that the conduct in question was neither

scandalous nor outrageous, but could only be categorized as one of the "milder forms of misconduct" which could simply be said to be "deserving of reproof or rebuke", it is my opinion that the single standard for the awarding of special costs is that the conduct in question properly be categorized as "reprehensible". As Chief Justice Esson said in Leung v. Leung , the word reprehensible is a word of wide meaning. It encompasses scandalous or outrageous conduct but it also encompasses milder forms of misconduct deserving of reproof or rebuke.

Accordingly, the standard represented by the word reprehensible, taken in that sense, must represent a general and all encompassing expression of the applicable standard for the award of special costs. ... 23. However, the fact that an action or an appeal "has little merit" is not in itself a reason for awarding special costs.... [ 14 ] This submission has given me pause. However, upon a perusal of the respondent's letter, I am satisfied that he did not accuse Mr. Lokash of sharp practice. Rather, he raised the issue of whether certain actions might be considered sharp practice.

This susurrus does not bring the respondent within the meaning of "reprehensible" articulated above. [ 15 ] I am more troubled by the suggestion of a suit for malicious prosecution. This could be seen as an attempt to intimidate counsel and dissuade him from acting on behalf of his client. However, no such suit was commenced. Mr. Lokash, although troubled enough by this suggestion to notify his insurers, continued to act for Lasertech and indeed succeeded upon the hearing. It is usually not wrong to suggest that if a course of action is not followed legal proceedings will be commenced.

As with the sharp practice suggestion, I am not persuaded Begin's warning was "reprehensible" conduct as that expression is used in the authorities. [ 16 ] Having said this, I do not wish to be seen as countenancing such a communication between counsel. This unseemly bluster is not the civilized exchange the public and the courts expect of lawyers. [ 17 ] In consideration of all of the above, the petitioners will have their costs at scale 3 calculated as if this action had been brought by way of Notice of Motion. “L.P. Williamson, J.” The Honourable Mr. Justice L.P. Williamson