Khoe v. Guo, 2023 BCSC 381

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Khoe v. Guo, 2023 BCSC 381 Date: 20230123 Docket: S 2010844 Registry: Vancouver Between: Hwe Kiang Khoe Plaintiff And Hong Guo, Bin Xu, Edge Water, Claire N. Chang, Joanne Lee Defendants Before: The Honourable Justice Blake Oral Reasons for Judgment In Chambers Counsel for the Plaintiff appearing by videoconference: K. Frempong Counsel for the Defendant Joanne Lee: D.J. Winterton No other appearances Place and Date of Hearing: Vancouver, B.C. January 16, 2023 Place and Date of Judgment: Vancouver, B.C.

January 23, 2023 [ 1 ] THE COURT: As these are oral reasons, I make the usual reservation that if a transcript of them is ordered, I may edit them where necessary and quote from the caselaw in more detail, but that the overall substance and result will not change. [ 2 ] This is an application brought by the defendant Joanne Lee (“Ms. Lee”) that this action be dismissed against her pursuant to Rule 9-6 as she says it is barred by the provisions of the Limitation Act , S.B.C. 2012, c. 13 [ Limitation Act ].

In the alternative, she asks that certain paragraphs of the amended notice of civil claim be struck pursuant to Rule 9-5, and the plaintiff's action against Ms. Lee be dismissed. If either of these orders are granted, she asks that the style of cause be amended to remove her as a party. Finally, she seeks special costs, or in the alternative, increased or ordinary costs. BRIEF BACKGROUND [ 3 ] The plaintiff filed her notice of civil claim on October 26, 2020, naming Ms. Lee, Hong Guo, Bin Xu, Edge Water and Claire Chang as defendants. Ms. Lee, Ms. Guo, and Ms.

Chang are all lawyers in British Columbia. [ 4 ] The plaintiff then filed an amended notice of civil claim on December 19, 2022, after being served with Ms. Lee's notice of application. Counsel for Ms. Lee says the amended notice of civil claim still fails to set out a cause of action against Ms. Lee, and confirmed there was no need to adjourn this notice of application to allow him time to consider the amendments. Counsel agreed it was appropriate to hear and determine this application on the basis of the amended notice of civil claim, and all references are to that amended pleading (the “ANCC”). [ 5 ] Ms.

Khoe swore an affidavit in this matter, which did not have attached a certification of a translator, nor confirmation that someone had read it to her. Counsel acknowledged this was an omission, and confirmed on the record her son had translated it aloud before she swore it. [ 6 ] By way of brief background, the plaintiff was educated in Indonesia to a Grade 9 or 10 level, speaks very little English and does not read English.

Her husband died in September 2014 and upon his death, she became the legal owner of a condominium in Richmond (the “Richmond Condo”), and a house in Burnaby (the “Burnaby House”). [ 7 ] When the plaintiff's husband was sick, she became friends with her dentist, Dr. Xu. She alleges that Dr. Xu took advantage of her, would borrow money from her and not pay her back, and influenced her to borrow money from third parties, use her properties as collateral, and then lend those borrowed funds to him. She says that Dr.

Xu took her to sign several documents in English, but she does not know what she signed, and she says she did not receive copies of the documents she signed. When she received funds, she alleges

that Dr. Xu would go with her to the bank and obtain bank drafts out of her account. She was approximately 76 years old at the time the transactions at issue took place. [ 8 ] Ms. Khoe says that as a result of nine mortgages that were registered against the Burnaby House, she was forced to sell it (ANCC para. 13). Six of these mortgages were registered by Ms. Lee. The documents confirm that Ms. Khoe sold the Burnaby House for $1,220,000 on June 26, 2015, and after the mortgages were paid off and her legal fees, taxes and disbursements were paid, she received net sale proceeds of only $78,111.84.

The closing date for the sale was June 26, 2015, and the documentary evidence establishes Ms. Khoe executed an order to pay on June 25, 2015. These facts are established by Ms. Khoe's son, Sun Lee Hui. [ 9 ] Mr. Hui confirms his mother did not have copies of any of the documents she is alleged to have signed, nor of any other relevant documents. When Scotiabank brought foreclosure proceedings against the Richmond Condo, his mother told him, and once he realized the gravity of the situation, he found her a lawyer in early July 2018 to assist her with the foreclosure proceedings. He explains: 10.

One of the first questions that counsel asked us was to provide him with copies of documents. I told him that we did not have any copies and he said he will order them from the court registry. Counsel for my mother proceeded to obtain documents relating to the Richmond Condo. 11. My mother, who is unsophisticated and knows nothing about legal claims, did not know and would not know that she had a possible claim against the defendants. After reviewing all the documents relating to the Burnaby House, I can categorically say that I would have no idea that my mother had a possible claim against the defendant lawyers.

It was my mother's legal counsel, who, after reviewing the documents advised that we had a possible claim against the defendant lawyers. 12. While representing my mother during the Richmond Condo proceedings, my mother's counsel came across documents relating to the sale of my mother's Burnaby House. 13. On or about September 24, 2020, my mother's counsel received Notice to Admit documents in a separate proceeding and became aware of the mortgages that are at the foundation of this suit. [ 10 ] Ms. Khoe did not say when she first realized she had a potential claim as against Ms. Lee.

Rather, she corroborates that when she realized Scotiabank foreclosure proceedings commenced, she told her son, who got a lawyer to help her. She says “I had no idea that I had a possible claim against the defendants. It was my lawyer who advised me”. ANALYSIS [ 11 ] There are two issues to be determined on this application:

a) is Ms. Khoe's claim barred by the provisions of the Limitation Act , as a reasonable person in her position should have been aware she had a claim against Ms. Lee on June 26, 2015, the date she sold the Burnaby House and discharged the nine mortgages registered on title to that property; and

b) in the alternative, should Ms. Khoe's ANCC be struck pursuant to Rule 9-5(1) on the basis it fails to disclose a cause of action as against Ms. Lee? Issue #1: Is the Plaintiff’s Claim Barred by the Limitation Act? [ 12 ] The limitation period that applies to the plaintiff's claim is the basic two-year period set out in s. 6 of the Limitation Act . Section 6(1) stipulates that, subject to the Limitation Act , “a court proceeding in respect of a claim must not be commenced more than 2 years after the day on which the claim is discovered.” [ 13 ] Counsel for Ms. Lee says that Ms.

Khoe discovered her claim on June 26, 2015, when the Burnaby House sold, and argues that Ms. Khoe's claim against Ms. Lee is barred by s. 6 of the Limitation Act and so should be dismissed pursuant to Rule 9 -6 of the Supreme Court Civil Rules , B.C. Reg. 168/2009 [ Rules ] on the basis that the plaintiff's claim was brought out of time. [ 14 ]

Summary judgment may be granted on a limitation defence pursuant to Rule 9-6. Where a claim is statute-barred the claim can be dismissed, unless there are genuine issues for trial concerning the postponement of the limitation period applicable. If there are disputed facts that would give rise to a consideration of a postponement of the limitation period,

summary judgment may not be appropriate: Brown v. Canada (Attorney General) , 2014 BCSC 357 at para. 16 [ Brown ], aff’d 2015 BCCA 102 ; Sandhu v. Sun Life Assurance Company of Canada, 2016 BCSC 1077 at para. 13 [ Sandhu ] . [ 15 ] Rule 9-6(4) of the Rules permits a defendant to a legal proceeding to seek dismissal of all or part of a claim. To grant

summary judgment pursuant to Rule 9-6(4) the court must determine if there is a genuine issue for trial. In so doing, if there are disputed facts, it must not weigh the evidence, nor choose between conflicting versions of events. Inferences from the facts are to be viewed in the light most favourable to the plaintiff: Brown at para. 17 and Sandhu at para. 12 . [ 16 ] The judge's function on a

summary judgment application is limited to determining “whether a bona fide triable issue arises on the material before the court in the context of the applicable law”: Skybridge Investments Ltd. v. Metro Motors Ltd ., 2006 BCCA 500 at para. 12 .

Summary judgment is not appropriate where there are “real issues” as to the postponement of a limitation period: Sandhu at para. 13 . The “material before the court” includes both the pleadings and the affidavit evidence: Henderson v. Broadhurst , 2022 BCSC 2235 at para. 17 . Assuming the uncontested facts are true, a judge must only dismiss an action where they are satisfied that “it is beyond a doubt” that the action will not succeed: Henderson at para. 18 . [ 17 ]

Section 6 of the Limitation Act provides for a two-year limitation period “after the day on which the claim is discovered”.

Section 8 provides for the general discovery rules: General discovery rules 8 Except for those special situations referred to in sections 9 to 11, a claim is discovered by a person on the first day on which theperson knew or reasonably ought to have known all of the following: (

a) that injury, loss or damage had occurred; (

b) that the injury, loss or damage was caused by or contributed to by

an act or omission; (

c) that the act or omission was that of the person against whom the claim is or may be made; (

d) that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedythe injury, loss or damage. [18] No argument was advanced that the special situations set out in ss. 9–11 of the Limitation Act should apply. Ms. Khoe's counseldoes not advance the argument that she was disabled in any way, such that ss. 11 and 19 of the Limitation Act would apply. [19] Both counsel rely on Grant Thornton LLP v. New Brunswick, 2021 SCC 31 [Grant Thornton], in which the Supreme Court ofCanada reviewed both the common law of discoverability, and the statutory limitation period found in the Limitation of Actions Act,S.N.B. 2009, c. L-8.5.

Section 5 of that legislation also provides for a two-year limitation period from the day the claim is discovered,and it provides: 5

(2) A claim is discovered on the day on which the claimant first knew or ought reasonably to have known (

a) that the injury, loss or damage had occurred, (

b) that the injury, loss or damage was caused by or contributed to by

an act or omission, and (

c) that the act or omission was that of the defendant. [20] Section 5(2) does not include a provision similar to that of s. 8(

d) of our Limitation Act, specifically, that a potential claimant isdeemed to have discovered the claim when, having regard to the nature of the injury, loss or damage, they realize a court proceedingwould be an appropriate means to seek to remedy the injury, loss or damage. [21] In Grant Thornton, the Court found a limitation period is triggered when a plaintiff discovered, or ought to have discoveredthrough the exercise of reasonable diligence, the material facts on which the claim is based: at para. 40.

The Court explained theappropriate approach to determining when a plaintiff ought to have discovered they had a claim, in the following terms: [42] In my respectful view, neither approach accurately describes the degree of knowledge required under s. 5(2) to discover a claimand trigger the limitation period in s. 5(1)(a). I propose the following approach instead: a claim is discovered when a plaintiff hasknowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant’s

part can bedrawn. This approach, in my view, remains faithful to the common law rule of discoverability set out in Rafuse and accords with s. 5 ofthe LAA. [43] By way of explanation, the material facts that must be actually or constructively known are generally set out in the limitationstatute. Here, they are listed in s. 5(2)(

a) to (c). Pursuant to s. 5(2), a claim is discovered when the plaintiff has actual or constructiveknowledge that: (

a) the injury, loss or damage occurred; (

b) the injury loss or damage was caused by or contributed to by

an act oromission; and (

c) the act or omission was that of the defendant. This list is cumulative, not disjunctive. For instance, knowledge of a loss,without more, is insufficient to trigger the limitation period. [44] In assessing the plaintiff’s state of knowledge, both direct and circumstantial evidence can be used. Moreover, a plaintiff willhave constructive knowledge when the evidence shows that the plaintiff ought to have discovered the material facts by exercisingreasonable diligence. Suspicion may trigger that exercise (Crombie Property Holdings Ltd. v.

McColl-Frontenac Inc., 2017 ONCA 16,406 D.L.R.(4th) 252, at para. 42). [22] The degree of knowledge required to discover the existence of a potential claim is more than mere suspicion or speculation, but itis not so high as to require certainty of liability: Grant Thornton at para. 46. In a claim alleging negligence, the plaintiff does not requireknowledge “that the defendant owed it a duty of care or that the defendant's act or omission breached the applicable standard of care”:Grant Thornton at para. 48.

To require such knowledge could have the unintended consequence of indefinitely postponing the applicablelimitation period. Rather, “[w]hat is required is actual or constructive knowledge of the material facts from which a plausible inferencecan be made that the defendant acted negligently”: Grant Thornton at para. 48. [23] In the decision of Novak v.

Bond, [1999] 1 S.C.R. 808, , the Supreme Court of Canada considered s. 6(4) of theprevious Limitation Act, R.S.B.C. 1996, c. 266, and in particular s. 6(4)(b), which allowed the running of a limitation period for certainactions to be postponed until a reasonable person would consider that the plaintiff “ought, in the person's own interests and taking theperson's circumstances into account, to be able to bring an action.” While the wording of s. 6(4)(

b) differs from s. 8 of the currentLimitation Act, our current act also provides that a claim is discovered on the first day on which a person “knew or reasonably ought tohave known” the four discrete requirements set out in s. 8(a)–(d). The Court addressed the issue of when a plaintiff should be found tohave reasonably known they had a potential claim. To determine that, the court is to adopt the perspective of a reasonable person,knowing the facts within the plaintiff's knowledge, who has taken the appropriate advice a reasonable person would seek.

A limitationperiod begins to run when “this reasonable person would conclude that someone in the plaintiff's position could, acting reasonably inlight of his or her own circumstances and interests, bring an action”: Novak at para. 40 (emphasis in original).

[24] Counsel for Ms. Lee argues the limitation period crystallized at the time Ms. Khoe sold the Burnaby House in June 2015. Hestresses Ms. Khoe admits that she sold the Burnaby House in June 2015 as a result of the nine mortgages that were registered against it,and received only $78,111.84 from the sale proceeds (ANCC at para. 13). He notes Ms. Khoe acknowledged that as a result of themortgages on title to the Burnaby House, she was forced to sell it (Ms. Khoe’s 1st affidavit at para. 19). He says that a reasonable personin Ms.

Khoe's circumstances would have known she had suffered damages from the registration of the mortgages on the Burnaby Houseat the time of the sale, and could have brought an action against Ms. Lee arising from her registering six of the mortgages on title to theBurnaby House. He argues the limitation period must run from June 26, 2015, the date Ms. Khoe closed on the sale of the BurnabyHouse, and there can be no genuine issue for trial as to whether a later discoverability date is appropriate. [25] Counsel for Ms. Khoe acknowledges that she knew she had experienced loss as of June 25, 2015.

However, he argues that herpotential claim could only have been discovered from the date she had knowledge of her potential claim against Ms. Lee, pursuant tos. 8(

d) of the Limitation Act, which he says can only run from September 2020, the date Ms. Khoe's counsel first became aware of themortgages registered on title to the Burnaby House. [26] He says Ms. Khoe was elderly, unsophisticated, vulnerable, spoke very little English, could not read English, and did not havecopies of the mortgages registered against the Burnaby House. Ms. Khoe did not know what the documents she signed were for, she didnot understand the nature of the transactions and her financial exposure, and was estranged from one of her sons at the time of thetransactions.

He argues that with respect to the nature of the loss Ms. Khoe experienced, it was not reasonable to conclude that Ms. Khoeknew, or reasonably ought to have known, of her potential claim against Ms. Lee until September 2020. That is when her lawyer receiveda notice to admit in a separate proceeding and so became aware of the mortgages that are at the foundation of this action. He arguesMs. Khoe would not have known she would have a potential claim against Ms. Lee for her actions in registering the six mortgages untilher lawyer was able to review the mortgage documents and advise her.

He says a reasonable person in Ms. Khoe's circumstances wouldnot have discovered her potential claim until her legal counsel received and could review the documents relating to the six mortgages. [27] Upon a consideration of the pleadings and the evidence filed in support of this application, I accept the evidence establishes thatMs. Khoe was elderly and vulnerable, and lacked the requisite knowledge necessary to understand the mortgage documents she hadsigned.

While she must have realized that she was not receiving all of the proceeds from the sale of the Burnaby House, I find thereremains a genuine issue for trial as to whether her potential claim was discoverable as at the date the sale of the Burnaby House closed,on June 26, 2015, or at some later date. There is a genuine issue as to whether Ms. Khoe only discovered her potential claim againstMs. Lee after counsel was retained on her behalf in July 2018, or even at some later date.

If the ultimate determination of the trial judgeis she reasonably discovered her potential claim in July 2018, her notice of civil claim would have been brought in time as limitationperiods were extended in British Columbia for one full year during the COVID-19 pandemic from March 26, 2020, to March 25, 2021. [28] I find that the question of the reasonable discoverability of Ms. Khoe's potential claim as against Ms. Lee is not a straightforwardexercise. Determining when Ms. Khoe knew or reasonably ought to have known that she suffered loss or damage as a result of Ms.

Lee'sactions, which could be remedied through a lawsuit, is a genuine issue for trial, requiring a full investigation of the material facts andweighing of the evidence. Ms. Lee has not satisfied her evidentiary burden of establishing there is no genuine issue requiring trial, andher application for

summary judgment pursuant to Rule 9-6 is dismissed. Issue #2: Should the Amended Notice of Civil Claim Be Struck? [29] Ms. Lee seeks portions of the ANCC relating to her to be struck pursuant to Rule 9-5(1)(a), without leave to amend, and that theclaim against her be dismissed. [30] Rule 9-5 is a challenge on the pleadings. Where it is plain and obvious a claim discloses no reasonable cause of action, and isthus bound to fail, it should be struck pursuant to Rule 9-5(1)(a).

The material facts as set out in the notice of civil claim are taken to betrue, and evidence is not to be considered on such an application: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 17[Imperial Tobacco]. [31] When insufficient material facts have been pleaded to support each element of a cause of action, then a cause of action is boundto fail.

The facts as pleaded are the basis upon which the possibility of success of the claim must be evaluated: Imperial Tobacco atpara. 22. [32] It is insufficient to say that we do not know exactly what the defendants have or have not done, but we may find out afterexaminations for discovery. A plaintiff is not entitled to speculate and use legal proceedings “in the hope that it will find something onwhich to hang its hat”: Border Enterprises Ltd. v. Beazer East, Inc., 2003 BCSC 49 at para. 31, citing Napier EnvironmentalTechnologies Inc. v. Vitomir, 2001 BCSC 1704 at para. 24.

It is not appropriate to consider the possibility that, as the case progresses,new evidence may be revealed: Imperial Tobacco at para. 23. Rather, the exercise is whether, taking the material facts pleaded as true,the notice of civil claim discloses a cause of action. [33] When deciding whether pleadings disclose a cause of action, the judge should read them generously, err on the side of permittingnovel but arguable claims to proceed, and accommodate inadequacies in form to the extent reasonable by allowing for proposedamendments to cure deficient drafting.

Nevertheless, for a claim to be allowed, the prospect of success must be reasonable, notspeculative, taking into account the salient law and the litigation context: Imperial Tobacco at paras. 21–25. [34] An effectively pleaded cause of action must include sufficient material facts to support each element of the cause of action:Imperial Tobacco at para. 22. The material facts giving rise to the claim, or that relate to the matters raised in the claim, must beconcisely set out.

This obligation was explained by Chief Justice McLachlin, as she then was, in Imperial Tobacco in the context of amotion to strike in para. 22: [22] A motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unlessthey are manifestly incapable of being proven: Operation Dismantle Inc. v. The Queen, (SCC), [1985] 1 S.C.R. 441, atp. 455. No evidence is admissible on such a motion: r. 19(27) of the Supreme Court Rules (now r. 9-5(2) of the Supreme Court Civil

Rules ). It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim. A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. The claimant may not be in a position to prove the facts pleaded at the time of the motion. It may only hope to be able to prove them. But plead them it must. The facts pleaded are the firm basis upon which the possibility of success of the claim must be evaluated.

If they are not pleaded, the exercise cannot be properly conducted. [Emphasis added.] [ 35 ] However, assertions that are based on assumption and speculation need not be taken as true, and it is appropriate to look behind mere allegations, and it may be appropriate to subject the allegations to a skeptical analysis: Green v. Proline Management Limited , 2017 BCSC 1656 at para. 35 . [ 36 ] In the ANCC, Ms. Khoe alleges that Ms. Lee registered six private mortgages on the Burnaby House between March 27 and April 15, 2015 (ANCC at para. 45). [ 37 ] Ms.

Khoe then sets out the material facts supporting her alleged cause of action as against Ms. Lee in in the ANCC as follows: 46. Ms. Khoe did not retain Joanne Lee to register any of the six mortgages. Joanne Lee registered the impugned mortgages without first obtaining Ms. Khoe’s informed consent. 47. Ms. Khoe did not sufficiently understand the nature of the transactions and her financial exposure. Joanne Lee registered the impugned mortgages without first ensuring that Ms. Khoe understood the nature of the transactions and her financial exposure. 48. Ms.

Khoe was unduly influenced to sign documents mortgaging her property. Ms. Khoe did not have independent legal advice. Joanne Lee registered the impugned mortgages without ensuring that Ms. Khoe obtained independent legal advice. 49. The elderly 76-year-old Ms. Khoe, who could not read, did not understand the terms of the mortgages. Joanne Lee registered the impugned mortgages without verifying the terms of the mortgages with Ms. Khoe and without ensuring that Ms. Khoe understood the terms of the mortgages. 50. Ms.

Khoe did not receive the funds that the mortgages were intended to secure, therefore there was no consideration for the registration of the impugned mortgages. Joanne Lee registered the impugned mortgages without ensuring that Ms. Khoe received the mortgage funds and that there was adequate consideration. 51. Pursuant to Joanne Lee’s position as a Barrister and Solicitor subject to specific codes of ethics and behavior, Joanne Lee owed a duty of care to Ms. Khoe not to register mortgages on Ms. Khoe’s property without Ms. Khoe’s authorization. 52. Joanne Lee breached the duties she owed to Ms.

Khoe and in breaching those duties Joanne Lee breached the standard of care required of a solicitor practicing in British Columbia. 53. Joanne Lee negligently acted, particulars of which include: a. Failing to make reasonable inquiries about the circumstances of the transactions, including the subject matter and the objectives; b. Failing to make reasonable inquiries about the purpose of the transactions; c. Failing to make reasonable inquiries in the face of objectively suspicious circumstances; d. Failing to ensure that the elderly Ms.

Khoe who could not read, understood the nature of the transactions and her financial exposure; e. Registering mortgages without Ms. Khoe’s authorization; f. [Removed] g. Failing to ensure that Ms. Khoe had independent legal advice; h. Failing to ensure that Ms. Khoe received the mortgage funds; i. Failing to ensure that Ms. Khoe was not unduly influenced; j. [Removed] k. Failing to act in a manner consistent with a reasonably prudent solicitor. 54. As a result of the breach of the duty and standard of care owed by Joanne Lee to Ms. Khoe, Ms. Khoe has suffered and continues to suffer loss and damage.

The actions of Joanne Lee in negligently registering the mortgages have caused Ms. Khoe to suffer losses in excess of $699,690.00. [ 38 ] Ms. Khoe admits she did not retain Ms. Lee to register any of the six mortgages in question, but she fails to plead any material facts to establish why Ms. Lee, who did not act for her, owed her any of the alleged duties set out above —to ensure she obtained Ms. Khoe's informed consent, to ensure Ms.

Khoe understood the nature of the transactions and her financial exposure, to ensure she received independent legal advice, to ensure she understood the terms of the mortgages, or to ensure she received the mortgage funds and that there was adequate consideration. No material facts are pleaded to establish why Ms. Lee, whom Ms. Khoe admits she did not retain, owed a duty of care to Ms. Khoe. [ 39 ] A cause of action in negligence requires the plaintiff to plead that the defendant owes a duty of care to them, that their actions

breached the relevant standard of care, and that the defendant's breach of that duty caused damage to the plaintiff: see for example Micka v. Oliver & District Community Economic Development Society, 2008 BCSC 1623 at paras. 17–20 ; Harris v. Ray Kissack Memorial Housing Society , 2003 BCSC 1476 at para. 14 . [ 40 ] A bald pleading that Ms. Lee owed Ms. Khoe a duty of care is not sufficient in these circumstances. It does not set out the material facts necessary to give rise to that duty of care. Further, the ANCC fails to set out the material facts to establish it would have been reasonable for Ms.

Khoe to rely upon Ms. Lee, when she had not retained Ms. Lee as her lawyer, or to establish the legal basis on which Ms. Lee owed Ms. Khoe any duty of care. [ 41 ] The existence of a duty of care is not an allegation of fact, but rather a conclusion of law which must depend on material facts: Young v. Borzoni , 2007 BCCA 16 at para. 52 . [ 42 ] Counsel for Ms. Khoe admits that in the ANCC he has omitted to clearly set out in the legal basis the cause of action as against each lawyer, and for the purpose of this application as against Ms. Lee, but argues that should not result in the ANCC being struck.

He argued at the hearing that Ms. Khoe's alleged claim against Ms. Lee is based on a cause of action for a prima facie duty of care. He also argued it may be based on a novel duty of care, but did not articulate that potential duty clearly. He acknowledges a lawyer generally owes no duty of care to non-clients, but argues that in these circumstances, Ms. Lee owed such a duty to Ms. Khoe. [ 43 ] Counsel for Ms. Khoe argued that the ANCC discloses material facts to support the determination of a cause of action as against Ms. Lee. I disagree. The ANCC has insufficient material facts pleaded to establish that Ms.

Lee owed Ms. Khoe a prima facie duty of care, nor any other novel duty of care, as was alleged verbally by counsel for Ms. Khoe. The same is true if Ms. Khoe is alleging Ms. Lee breached a fiduciary duty to her, which was less than clear on the face of the pleading. In fact, the ANCC fails to set out with clarity what cause of action is being advanced by Ms. Khoe. There is an insufficient legal basis to make it clear that Ms. Khoe alleges that her cause of action against Ms. Lee is based on the argument that she owed her a prima facie duty of care, or any other novel duty owed to her by Ms.

Lee. [ 44 ] However, counsel for Ms. Khoe was able to verbally articulate a potential basis upon which his client says she has a cause of action against Ms. Lee, and identify what that cause of action was. While that is not clear in the ANCC, in these circumstances, I am not satisfied that it is appropriate to strike the ANCC where, if amended, it could disclose a reasonable cause of action. That is not to say that I accept that the proposed material facts and cause of action, as verbally advanced, will disclose a reasonable cause of action, merely that it may be possible, if pleaded adequately, that it does.

Although I was not referred to these cases by counsel, our Court of Appeal has made it clear that a claim should not be struck where, if amended, it could disclose a reasonable cause of action: Olumide v. British Columbia (Human Rights Tribunal) , 2019 BCCA 386 at para. 10 ; Carhoun & Sons Enterprises Ltd. v. Canada (Attorney General), 2015 BCCA 163 at para. 133 . [ 45 ] Accordingly, the plaintiff is given leave to further amend the ANCC within 35 days of these reasons for judgment. If the plaintiff does further amend the ANCC as ordered, Ms.

Lee is at liberty to bring another application to strike that further ANCC pursuant to Rule 9-5. I am not seized of that application, and it may be set before any judge of this Court. If the plaintiff does not file a further ANCC in accordance with these reasons for judgment, then Ms. Lee's application is granted, and the plaintiff's claim as against her is struck for failing to plead appropriate material facts and a legal basis to support her bald allegation that Ms. Lee owed her a duty of care. That would result in

Part 1, paras. 6, 45–54, and

Part 2, para. 10 of the ANCC being struck and the style of cause being amended to remove the defendant Ms. Lee as a party. [ 46 ] Given this determination, I will not consider Ms. Lee's argument that the plaintiff's claim is frivolous and vexatious and ought to be struck pursuant to Rule 9-5(1)(

b) or that it is an abuse of process and ought to be struck pursuant to Rule 9-5(1)(

d) at this time. Those claims should be considered if a further amended notice of civil claim is filed, and Ms. Lee brings another application. CONCLUSION [ 47 ] Given the divided success of the parties on this application, I order that costs are to be assessed as costs in the cause, and that concludes my reasons, counsel. Thank you. [ 48 ] CNSL D. WINTERTON: Thank you, Justice. [ 49 ] CNSL K. FREMPONG: Thank you. Thank you, Madam Justice. “Blake J.”