BRENDA ELAINE STEPHENS Plaintiff - v. -, 2023 SKKB 5

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 5 Date: 2023 01 06 Docket: QBG-SA-01049-2019 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: BRENDA ELAINE STEPHENS Plaintiff - and - PRO BONO LAW SASKATCHEWAN INC. Defendant Appearances: Brenda Stephens on her own behalf Lindsay J. Oliver for the defendant ___________________________________________________________________________ JUDGMENT ELSON J.

January 6, 2023 ___________________________________________________________________________ Introduction [ 1 ] This judgment follows from an earlier judgment of this Court in the same action, Stephens v MLT Aikins LLP , 2021 SKQB 323 , 75 CPC (8th) 117 [ 2021 Judgment] . In the 2021 Judgment , rendered through a

summary judgment application, the Court dismissed the plaintiff’s action against all but one of the named defendants. It did so primarily on the basis that the action was statute-barred against the subject defendants. That analysis did not apply to the now remaining defendant, Pro Bono Law Saskatchewan Inc. [PBLS]. [ 2 ] PBLS had brought its own application at the same time as the other defendants. The application sought orders striking the claim against it on the grounds that: (1) it disclosed no reasonable cause of action; (2) it is scandalous, frivolous or vexatious; or (3) it amounted to an abuse of the process of the Court. As a further alternative, PBLS also sought

summary judgment based on the assertion that the plaintiff could not prove her claim against it. In the 2021 Judgment , I did not rule on the PBLS application because it was clear that the plaintiff was not in a position to deal with it and the arguments that specifically pertained to the other defendants. As a result, I directed that the PBLS application be re-argued, with the expectation that the plaintiff would be fully prepared to address the issues raised in the application.

The hearing for that argument was held earlier in 2022. [ 3 ] In the meantime, on January 18, 2022, the plaintiff, still self-represented, filed a notice of appeal in respect of the 2021 Judgment . When she did not perfect her appeal by early June, one of the respondents sought an order that she do in a timely way. This resulted in an order from the Court of Appeal, in chambers, directing the plaintiff to perfect her appeal within 60 days of the order being served. The deadline for this was August 29, 2022.

The plaintiff did not meet the deadline, prompting an application to dismiss the appeal for want of prosecution, I understand the Court heard that application on December 21, 2022. Following that hearing, the plaintiff’s appeal was dismissed. [ 4 ] The decision of the Court of Appeal gives added context to the outcome of the plaintiff’s case against PBLS, particularly for the

summary judgment request. For the reasons that follow, I am satisfied that the

summary judgment must be granted in favour of PBLS such that the plaintiff’s action must now be fully dismissed. Background [ 5 ] For the purposes of this decision, it is not necessary to repeat all the facts related to the 2021 Judgment . A

summary of the basic facts appears in its first four paragraphs. They read as follows: [1] In 1996, Brenda Elaine Stephens and her husband, now deceased, purchased a parcel of land in Lucky Lake, Saskatchewan for the modest sum of $750. They subsequently borrowed funds to purchase a modular home which they placed on the parcel. Thereafter, they lived in the home with their three children for approximately three and a half years. [2] Two lenders, who had advanced funds to the couple, received mortgages against the land as well as other security. Sadly, the

couple separated in the spring of 2000. Around that same time, they also defaulted on at least one of the loans. Eventually, by 2002, Ms. Stephens and her husband had completely lost possession of the parcel of land and the modular home. Curiously, and unbeknownst to Ms. Stephens, title to the parcel remained in the names of the couple, as joint tenants. This state of affairs existed even though one of the lenders had sold the modular home to another individual in 2002. [3] It was not until August 2016, that Ms. Stephens learned that her name and that of her husband’s remained on the title.

In the interim, her husband had filed an assignment in bankruptcy in late 2001 and tragically took his own life on November 28, 2005. [4] After learning about the title, Ms. Stephens concluded that her family had been unlawfully denied possession of the parcel and the modular home. This conclusion informs the central allegation in the statement of claim she issued in this action on July 22, 2019. Having said this, Ms. Stephens’ grievances have ballooned well beyond the loss of modestly priced items of real and personal property. The action includes a claim for the wrongful death of Ms.

Stephens’ husband, fraud, forgery, conspiracy, defamation, and professional negligence of her counsel. As the style of cause reflects, there are multiple defendants associated with these claims. The damages Ms.

Stephens seeks exceed $2.3 million. [ 6 ] To add more specific context, the defendants in this action, other than PBLS, were the two lenders (Canadian Imperial Bank of Commerce [CIBC] and Wells Fargo Financial Corporation Canada), the law firm for the lenders (MLT Aikins LLP), the alleged trustee in bankruptcy for the plaintiff’s late husband (Deloitte Restructuring Inc.), the village where the home and parcel of land [Property] was located (Village of Lucky Lake [Village]), the mayor and council member for the village (David Jessiman), the individual who is purported to have purchased the Property in 2002 (Andy Ruckaber) and the individual interested in its acquisition in 2016, who informed the plaintiff about the information on title (Rick Couch). [ 7 ] In the 2021 Judgment , the Court dismissed the plaintiff’s claim against the other defendants on the grounds that the pleaded causes of action were statute barred by the applicable limitation periods.

Specifically, the Court found that the claim for the lost possession of the Property, as against the lenders, the law firm, the Village of Lucky Lake, Mr. Jessiman, the trustee in bankruptcy and Mr. Ruckaber, became statute barred as of June 30, 2008, pursuant to the six-year limitation in s. 3(1) (

e) of The Limitation of Actions Act , RSS 1978, c L-15 (rep) [ Former Act ]. As against Mr. Couch, this same claim became statute barred no later than December 31, 2013, pursuant to the ultimate limitation in s. 7(2) of The Limitations Act , SS 2004, c L-16.1 . [ 8 ] The defamation claim against one defendant, despite its obvious pleading deficiencies, became statute barred no later than May 1, 2007.

Depending on which version of the legislation applied, the limitation may have expired as early as December 31, 2005. [ 9 ] The claim for the wrongful death of the plaintiff’s husband became statute barred no later than November 28, 2007.

That said, if the applicable limitation was under s. 6(2) of the former applicable statute, The Fatal Accidents Act , RSS 1978, c F-11 , the claim would be statute barred as early as May 1, 2007. [ 10 ] In addition to the limitation findings, the 2021 Judgment also found that the plaintiff had not received leave of the Court with respect to her claim against the trustee in bankruptcy.

As leave is required, pursuant to s. 41(8) of the Bankruptcy and Insolvency Act , RSC 1985, c B-3 , the Court was satisfied that the claim against the trustee would almost certainly have been dismissed on this basis as well. [ 11 ] The plaintiff’s claim against PBLS arises from the plaintiff’s interactions with its representatives about taking legal action for the loss of the Property. The pleaded facts related to this part of the statement of claim assert that the plaintiff first sought assistance from PBLS over her complaint in January 2018 and that a lawyer was assigned to her case in March.

Eventually, the assigned lawyer drafted a statement of claim on the plaintiff’s behalf. Despite this, the plaintiff pleads that PBLS “Spoliated necessary Parties and Facts in bad faith to determine the real issues in dispute,” and that this further concealed the plaintiff’s cause of action.

The plaintiff goes on to plead that PBLS withdrew from her case and terminated their services to her, thereby causing her further harm and injury, amounting to “an abuse of the Justice system.” [ 12 ] In its statement of defence, PBLS admits that one of its staff lawyers assisted and advised the plaintiff but denies any wrongful conduct.

PBLS pleads that it terminated its services when the plaintiff acted alone and contrary to the advice the staff lawyer had provided. [ 13 ] The evidence related to the plaintiff’s interactions with PBLS differs from the material facts in her statement of claim but is not substantially inconsistent with the evidence presented on behalf of PBLS. The findings I draw from the evidence are described in the next several paragraphs. [ 14 ] The plaintiff’s first interaction with PBLS occurred on August 25, 2016, with a telephone call.

At that time, there was a general discussion about the Property, but no formal arrangements for follow-up were planned. [ 15 ] The plaintiff’s next interaction with PBLS did not occur until September 30, 2017, following which she was assigned a volunteer lawyer. PBLS and the plaintiff agreed that the volunteer lawyer would assist in asking the Ombudsman for Banking Services and Investments [OBSI] to review her case.

When that process did not resolve the issue by March 2018, the assigned lawyer provided no further assistance. [ 16 ] After the approach to the OBSI, PBLS and the plaintiff agreed that a staff lawyer would assist her in a limited capacity. The arrangement contemplated that the staff lawyer would help the plaintiff draft a statement of claim against CIBC and would attend the mandatory mediation session with her.

He would not, however, serve as the plaintiff’s counsel of record on the claim. [ 17 ] In keeping with the agreement, the staff lawyer helped the plaintiff draft and serve a statement of claim against CIBC (QBG-SA-00672-2018 in the Judicial Centre of Saskatoon). The claim was issued by the plaintiff, as a self-represented litigant, on May 4, 2018.

[ 18 ] According to the affidavit evidence of the PBLS Executive Director, the staff lawyer knew the plaintiff wanted to include the Village of Lucky Lake as a defendant in the claim he helped her prepare. The staff lawyer disagreed. He held the view that there was no evidence to justify an action against the Village. An exhibited email exchange between the staff lawyer and the plaintiff corroborates this. The email includes the staff lawyer’s reasons for his view, along with the additional opinion that the facts, as he understood them, did not disclose a reasonable cause of action.

The exchange ended with the staff lawyer advising strongly against issuing a claim against the Village, bolstered with his asserted that PBLS had an ethical obligation not to assist in advancing frivolous or vexatious claims. [ 19 ] On or about August 7, 2018, the staff lawyer became aware that, contrary to his advice, the plaintiff had drafted and issued a separate statement of claim naming the Village. As a result, PBLS withdrew its services on the basis that the plaintiff had lost confidence in the services it had provided to her. It sent the plaintiff a letter to this effect, dated August 27, 2018.

The letter did, however, make it clear that the plaintiff could still obtain legal advice through the PBLS clinic program. [ 20 ] Following the August 27, 2018 letter, the plaintiff continued to utilize PBLS services through the clinic program. However, on or about December 6, 2018, PBLS advised the plaintiff that it would no longer provide her with legal assistance through the clinic program or any other program with respect to her legal matters with CIBC and the Village.

The reason for PBLS terminating their services was because the plaintiff had been provided with legal advice in relation to her matters but that she had acted contrary to the advice provided. Further, the plaintiff had made ethical allegations against staff lawyers of PBLS. [ 21 ] Despite PBLS’s termination letter, the plaintiff continued sending email correspondence to PBLS, accusing them of attempting to cover up very serious crimes on the part of CIBC and the Village . Law –

Summary Judgment – Rule 7-2 [ 22 ] At paragraphs 76 to 79 of the 2021 Judgment , I described the test for granting

summary judgment pursuant to Rule 7-2 of The Queen’s Bench Rules . That test, as reflected in the authorities cited in this passage, equally applies to the plaintiff’s claim against PBLS. In short, and as identified in paragraph 77, the central question for me is whether the issues raised are sufficiently focused and the material is sufficiently detailed to allow the court to perform four tasks: (1) make the necessary findings of fact; (2) apply the law to those findings; (3) conclude that

summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result; and (4) determine whether there appears to be no genuine issue requiring a trial. [ 23 ] I also stressed the importance of parties responding to a

summary judgment application to put their “best foot forward” in advancing evidence for the Court to consider in deciding the application. In this regard, I specifically referenced the judgment of the Supreme Court of Canada in Canada (Attorney General) v Lameman , 2008 SCC 14 at paras 10-11 , [2008] 1 SCR 372 . The importance of that discussion applies equally to this application. [ 24 ] I am satisfied that the circumstances before me provide more than enough focus and detail for the Court to accomplish all four of these responsibilities. Law – Liability of Counsel in Civil Litigation [ 25 ] The wording of the plaintiff’s claim against PBLS makes it difficult to discern the actual cause(

s) of action she asserts against it. This seems, not unjustifiably, to have led to the defence assertion that the claim fails to disclose a reasonable cause of action. In part, the plaintiff asserts that PBLS is part of an expanding conspiracy to deny the plaintiff and her family compensation for the loss of the Property and subsequent losses that followed.

That said, when she last appeared before the Court to argue this matter, the plaintiff expressly complained that PBLS failed to advise and assist her in making claims against parties other than the CIBC, including a party that had never been named in this action. [ 26 ] From this, and despite the questionable pleading, I conclude that the plaintiff’s complaint against PBLS is threefold. First, she alleges that PBLS and its assigned staff lawyer acted in bad faith to prevent her from pursuing recovery for her alleged losses.

This is akin to a claim that PBLS breached its fiduciary responsibilities to the plaintiff, otherwise described as a “lawyer’s duty of loyalty”. Second, and possibly in the alternative, she asserts that PBLS breached its duty of care owed to her when it agreed to assist her. Although not expressly pleaded, this complaint is essentially a claim in negligence. Third, she asserts that PBLS improperly withdrew its assistance from her. This is more of an ethical issue which may, or may not, engage a cause of action.

I will deal with each of these complaints, beginning with the complaint of negligence. [ 27 ] Before addressing the law related to these complaints, I must acknowledge that, in doing so, I will dedicate more ink and paper than is probably necessary, particularly given the conclusions in the 2021 Judgment . Even so, I think it is important for the Court to explain the applicable legal principles to the plaintiff. In this regard, I truly believe she has sadly misinformed herself about various matters of law. To the extent I can honestly and fairly dispel this misinformation, I am resolved to try.

Negligence [ 28 ] All claims in negligence, whether based on professional or ordinary negligence, consist of three essential elements to be proved on the balance of probabilities. To succeed in such a claim, a plaintiff must prove: (1) a duty of care; (2) a breach of the duty of care, meaning a failure to conduct oneself according to the standard of care necessary to meet the duty; and (3) damage or loss caused by the deficient or substandard care. [ 29 ] In matters of civil litigation, counsel’s duty of care will commonly be informed by the circumstances under which they are retained.

Such arrangements or “retainers” (a term also used to describe the preliminary fee given to secure counsel’s services) will set out counsel’s responsibilities and authority while the retainer is in place. In some instances, such as the present case, retainers may be limited in scope. Where this is so, and barring revelation of circumstances that may expose a client to jeopardy or prejudice, counsel cannot be faulted or held liable for confining their work to the bounds of that limit.

[30] Once a retainer calls for counsel to provide professional services, the duty of care associated with the provisionof those services can be succinctly described. In short, counsel is expected to bring reasonable care, skill and knowledge to theperformance of their professional duties. That said, counsel does not undertake to act as the client’s insurer. In this regard, errors ofjudgment will not attract liability. Rather, counsel simply undertakes that they will not make mistakes that demonstrate a deficientstandard of care.

See Central Trust Co. v Rafuse, (SCC), [1986] 2 SCR 147 [Central Trust], and Piller v Schmidt, 2019SKQB 16, 42 CPC (8th) 164 [Piller]. [31] The standard of care necessary to meet this duty is that of the ordinary prudent and reasonably competentsolicitor or counsel. As with any professional standard of care, it is not a standard of perfection.

In Piller, at para 32, Tholl J. (as he thenwas) described the standard’s general requirements, with a passing reference to the comments from Central Trust: [32] Beginning with the standard of care, it is well established the standard of care for a lawyer in relation to their client is that of areasonably competent lawyer, also referred to as an ordinarily competent lawyer or an ordinarily prudent lawyer, in the samecircumstances (Central Trust Co. v Rafuse, (SCC), [1986] 2 SCR 147 at para 66 (WL)). This standard has beendetermined to include the following requirements: (

a) To be skilful and careful. (

b) To advise his client on all matters relevant to his retainer, so far as may be reasonably necessary. (

c) To protect the interests of his client. (

d) To carry out the client’s instructions by all proper means. (

e) To consult with his client on all questions of doubt which do not fall within the express or implied discretion left to him. (

f) To keep his client informed to such an extent as may be reasonably necessary, according to the same criteria. [Citations omitted] [32] When deciding whether counsel has met the requisite standard of care, the general rule is that it would beinappropriate for a court to make a finding without the assistance of expert evidence.

As Dufour J. pointedly observed in Johnson vDesmarais, 2017 SKQB 316 at para 21: [21] … it is anathema to the judge’s role as a finder of fact to self-declare oneself to be an expert, eschewing the safeguards thataccompany a proper inquiry into qualifications: direct examination and cross-examination. Judges, whether or not they feel personallyqualified to divine the standard of care to be applied, ought to tread cautiously before entering too far into the fray.

This general rule will not apply, however, where a court is dealing with matters for which an ordinary person is expected to havesufficient knowledge or where counsel’s conduct is so obviously deficient that it is beyond informed debate. See Krawchuk v Scherbak,2011 ONCA 352, 332 DLR (4th) 310, and Kopp v Halford, 2013 SKQB 128, [2013] 11 WWR 713. [33] The need for expert assistance in claims against counsel representing parties in civil litigation matters hasattracted attention from this Court.

In Palmer-Johnson v Tochor, 2003 SKQB 197, [2004] 6 WWR 130 [Palmer-Johnson], theself-represented plaintiff sued her former counsel after she was convicted in Provincial Court of offences under The Medical ProfessionsAct, 1981, SS 1980-81, c M-10.1. She alleged that her former counsel negligently represented her in the defence of these charges. Thetrial against her former counsel came before a judge and jury, where Zarzeczny J. presided. As part of the plaintiff’s case, she calledvarious witnesses and testified on her own behalf.

She told the Court that she had advised former counsel of witnesses who could testifyfor her but that none of these witnesses had been called or interviewed before the Provincial Court trial. The plaintiff did not call anywitnesses qualified to give expert opinion testimony on the standard of care in the conduct of her case before the Provincial Court or onthe extent to which the alleged substandard conduct resulted in her convictions. [34] At the conclusion of the plaintiff’s case in the civil trial, the defendants applied for a non-suit.

In addressing theapplication, Zarzeczny J. observed, at paragraph 16, that, while standard of care is a question of law, its articulation in a professionalnegligence case may well be “meaningless” or “inadequate” “without some expert opinion to explain what the standard requires and howit applies to the work of trial lawyers.” After reviewing the Supreme Court of Canada’s judgment in ter Neuzen v Korn, (SCC), [1995] 3 SCR 674, Zarzeczny J. concluded that the plaintiff had failed to present any evidence on the fundamental issues the jurywas called upon to decide.

Accordingly, he granted the non-suit motion, discharged the jury and dismissed the plaintiff’s action. Thebasis for this conclusion is described in paragraphs 30 to 32, where Zarzeczny J. wrote the following: [30] In the case at bar, the evidence presented by the plaintiff in respect of the particulars of the defendant lawyers’ negligence raisesissues of legal judgment and tactics respecting the conduct of the plaintiff’s case both in preparation for and at the trial.

The issues raisedinvolve substantial legal expertise and judgment including knowledge of the legal rules of admissibility respecting the evidence ofwitnesses, the identification of an appropriate defence strategy, the judgments and decisions that are appropriate to the pursuit of thatstrategy as well as the other matters previously outlined. [31] These matters are beyond the competence of a jury to decide based upon ordinary common sense and experience.

In the absenceof the presentation of opinion evidence on these matters by an expert qualified by the Court to give the required evidence there is noevidence upon which the jury could decide the two fundamental issues which are raised by this case which must be referred to the juryfor decision by them namely; whether the standard of care which they are instructed to apply in the circumstances of the case wasbreached by the defendant lawyers and secondly whether that breach caused the plaintiff, more probably than not, to lose an acquittalupon one or more of the charges upon which she was convicted at the original trial. [32] Simply put the calling of a legal expert to provide these required opinions in this case was not a matter of convenience or choice

for this plaintiff – it is a necessity. The consequence of not doing so cannot be overcome by any other efforts whether they be otherevidence, argument or judicial instruction to the jury. [35] The decision in Palmer-Johnson has been favourably considered in several subsequent authorities, includingPiller and the judgment of this Court in Barbagianis v Nychuk, 2018 SKQB 266. [36] The comments of Zarzeczny J. in Palmer-Johnson provide somewhat of a segue to the third essential element ofnegligence, namely, causation.

Where trial counsel fails to observe the requisite standard of care, a court can award damages only wherethe plaintiff proves that the substandard care “caused” loss or damage to the plaintiff. Causation is generally established according to the“but for” test. This test simply requires proof that but for the breach of the duty of care, the subject loss or damage would not haveoccurred. [37] An illustration of the causation analysis can be found in the Saskatchewan Court of Appeal judgment inHenderson v Hagblom, 2003 SKCA 40, [2003] 7 WWR 590 [Henderson].

In Henderson, a lawyer defended H and his company[H and Co.] against an action by their customers over the construction of a furnace chimney in their home [first action]. The customersalleged that H and Co. negligently constructed the furnace chimney such that it resulted in a fire which destroyed the home. In the trial ofthe first action, the customers’ counsel called, and qualified, a witness to give expert opinion on fire causation – one that supported thecustomers’ case. Meanwhile, H and Co.’s lawyer did not call any expert evidence to dispute the opposing opinion.

The judge found forthe customers, concluding that H and Co. had negligently constructed the furnace chimney and this negligence caused the fire. [38] When the lawyer sued for payment of his account [second action], H and Co. counterclaimed with the assertionthat the lawyer negligently defended the first action. The second action also proceeded to trial. The focus of that trial centred on thelawyer not consulting or calling a fire causation expert.

To support the contention that this amounted to substandard practice, H and Co.presented expert testimony from both experienced trial counsel and an expert on fire causation. The experienced trial counsel sharplycriticized the lawyer’s decision not to consult an expert, while the fire causation expert vigorously disagreed with the customers’ expertfrom the first action. Interestingly, H and Co. also called the customers’ expert from the first action.

He testified that, considering thenew expert opinion and additional facts not previously known to him, there was no reassurance he would come to the same conclusionhe expressed in the previous trial. [39] Although the trial judge dismissed H and Co.’s claim in the second action, the Court of Appeal took a verydifferent view of the evidence and reversed the trial findings. It agreed with the expert trial counsel that failure to consult an expert fellbelow the requisite standard of care.

Importantly, the Court also concluded that had defence expert evidence been called in the firstaction, H and Co.’s defence would have been considerably stronger. Speaking for the Court, Jackson J.A. fixed H and Co.’s chance ofsuccess at the trial of the first action at 75%. H and Co.’s damages, as caused by the lawyer’s negligence, were proportioned accordingly. Fiduciary Relationship and Duty of Loyalty [40] It is long been held that the lawyer-client relationship is fiduciary in nature and is “intertwined” with the duty ofloyalty on the part of the lawyer.

In their professional capacities, lawyers are persons in whom clients place trust and confidence. Assuch, and for the duration of their retainer, they are expected to concern themselves with their clients’ best interests – to the exclusion ofthemselves and others. See R v Neil, 2002 SCC 70 at para 16, [2002] 3 SCR 631. [41] Typically, a breach of a lawyer’s duty of loyalty will result in a complaint to the applicable law society or evendiscipline proceedings. Occasionally, it will result in legal action by the client. See Szarfer v Chodos (1986), (ONSC), 27 DLR (4th) 388 (Ont H Ct).

The classic example of a breach arises where lawyers use confidential information obtained from theclient and exploit it for their own purpose or benefit. Invariably, but not always, the lawyers will have shown bad faith while committingthe breach. Withdrawal of Services [42] The ethical and procedural rules, pertaining to withdrawal of counsel in civil cases, apply only to circumstanceswhere counsel have previously agreed to represent clients on the record. They do not apply to situations where counsel’s services stopshort of full representation.

See Rules 3.7-1 to 3.7-3 of the Code of Professional Conduct (Regina: Law Society of Saskatchewan, 2019)[Code], and Rules 2-41 to 2-44 of The Queen’s Bench Rules. [43] Having said this, I think it noteworthy that even where counsel formally represents a client in a civil proceeding,Rules 3.7-1 and 3.7-2 of the Code permits counsel’s withdrawal where there is “good cause” and the client has received reasonablenotice. Rule 3.7-2 addresses circumstances amounting to good cause. As expressly described in the rule, it applies where there has been a“serious loss of confidence between the lawyer and the client”.

The commentary in the annotated version of the Code sets out examplesamounting to a loss of confidence.

It reads as follows: A lawyer may have a justifiable cause for withdrawal in circumstances indicating a loss of confidence, for example, if a lawyer isdeceived by his client, the client refuses to accept and act upon the lawyer’s advice on a significant point, a client is persistentlyunreasonable or uncooperative in a material respect, or the lawyer is facing difficulty in obtaining adequate instructions from the client.However, the lawyer should not use the threat of withdrawal as a device to force a hasty decision by the client on a difficult question.

Analysis [44] At the outset of my analysis, there is little doubt that PBLS owed a duty of care to the plaintiff, albeit one inkeeping with the limited nature of the arrangement negotiated with the plaintiff. As mentioned, that arrangement allowed the plaintiff toreceive advice from the assigned staff lawyer, a draft statement of claim and assistance at the mandatory mediation session – all with theunderstanding that the staff lawyer would not formally represent her in any claim.

As such, if the claim he prepared were to proceed to apre-trial conference and trial, the arrangement did not contemplate any certain expectation that the staff lawyer would represent theplaintiff in those proceedings.

[ 45 ] It follows from this that PBLS owed the plaintiff a duty of care to assign a staff lawyer who would bring reasonable care, skill and knowledge to the performance of the professional duties associated with the limited scope arrangement.

This meant an expectation that, for the plaintiff’s lost Property claim, the staff lawyer would: (1) provide competent advice on the potential for liability; (2) draft a proper pleading that disclosed a reasonable cause of action; and (3) provide competent advice and assistance for the mandatory mediation session. [ 46 ] Of course, these responsibilities are also subject to ethical duties as set out in the Code of Professional Conduct .

This includes the duty to discharge all responsibilities to clients and others “honourably and with integrity” (Rule 2.1-1) and the duty to avoid conflicts of interest (Rule 3.4-1). In the context of the present case, this latter duty is subject to the qualified exception for short-term

summary legal services under Rules 3.4-2B to 3.4-2D. [ 47 ] Despite the existence of a duty of care, I am satisfied that, having regard to all the evidence and circumstances associated with the plaintiff’s claim against PBLS, there is no merit to the claim. There are multiple reasons for this conclusion. [ 48 ] I will begin this discussion by referencing the most obvious reason, namely, the findings in the 2021 Judgment . In my view, those findings, which are now final, effectively preclude any prospect of the plaintiff succeeding in this claim.

Despite its less than clear description in the statement of claim, there is little doubt that the central feature of the plaintiff’s complaint is her assertion that PBLS’s actions prevented her from succeeding in her claim against the other defendants. This assertion clearly conflicts with the Court’s findings in the 2021 Judgment . There, the Court found that the claims against all the other defendants were statute barred no later than December 31, 2013, almost three years before the plaintiff first consulted PBLS.

Accordingly, even if the plaintiff’s allegations of fault against PBLS have merit, any such fault could not have caused the claims against the other defendants to fail. In my view, those claims were destined to fail well before she first called PBLS.

As such, the circumstances of this case are clearly distinguishable from those in Henderson , where the Court of Appeal found that the lawyer’s faulty conduct had a causative impact on the client’s defence. [ 49 ] Aside from the absence of any causative impact in this case, I am satisfied the plaintiff presented no evidence to support either the conclusion or the inference that the PBLS staff lawyer failed to conduct himself according to the requisite standard of care.

In particular, the plaintiff has presented no evidence, expert or otherwise, to suggest that the staff lawyer’s recommendation not to take legal action against the Village was unreasonable. Indeed, based on the evidence referenced here and in the 2021 Judgment , there is much to commend his recommendation. [ 50 ] I am also satisfied that there is no evidence before the Court to suggest any malice or bad faith in the actions of either PBLS or its staff lawyer. For the plaintiff to suggest that steps were taken, or not taken, to cover up the conduct of other defendants is nothing more than pure speculation.

As already mentioned, parties to

summary judgment proceedings, particularly those responding to such proceedings, must put their best evidentiary foot forward. I am satisfied that the plaintiff has not done so. [ 51 ] Finally, I find no merit to the plaintiff’s complaint that PBLS wrongfully withdrew their services from her. I say this for two reasons. Firstly, it is clear that the service PBLS agreed to provide, and which the plaintiff agreed to accept, did not extend to formal representation in any legal action she might pursue. As such, there was no professional duty to remain on the case and continue to provide service.

Secondly, even if PBLS had agreed to represent the plaintiff as her counsel of record, I am satisfied that she gave it good cause to withdraw services. In this respect, the plaintiff’s decision to commence an action, contrary to the advice PBLS provided, demonstrated the kind of lost confidence that would justify withdrawal of counsel of record. Conclusion [ 52 ] In the result, there shall be an order directing that

summary judgment be entered in favour of Pro Bono Law Saskatchewan Inc., and that the plaintiff’s action be dismissed against it. PBLS shall have its costs fixed in the amount of $3,000.00, which roughly corresponds with the amount claimable under Column 2 of the Tariff of Costs. Given the Court’s decision on the

summary judgment application, it is not necessary to address the application to strike the passages in the statement of claim that relate to the claim against PBLS. [ 53 ] Rule 10-4 of The Queen’s Bench Rules is waived. In place of the requirement under that Rule, I ask that a draft order be presented to me before it is issued. “R.W. Elson” J. R.W. ELSON