Swaleh v Lloyd, 2023 ABKB 262

Court of King’s Bench of Alberta Citation: Swaleh v Lloyd, 2023 ABKB 262 Date: 20230428 Docket: 1703 04257 Registry: Edmonton Between: Shahab Swaleh Plaintiff/Appellant/Respondent - and - Thomas C. Lloyd Defendant/Appellant/Respondent Appeal from the Order by L.R. Birkett, KC, The Honourable Applications Judge Filed on the 10 th day of May, 2022 Dated the 7 th day of April, 2022 Appeal from the Order by L.Smart, KC, The Honourable Applications Judge Dated the 12 th day of May, 2022

_______________________________________________________ Endorsement of the Honourable Justice W.P. Sullivan _______________________________________________________ [ 1 ] There are two matters before me, appealed from the same underlying litigation. The first is the Respondent Mr. Lloyd’s application on appeal of the decision of Applications Judge Birkett on April 7th, 2022, dismissing the Respondent’s application to dismiss this action pursuant to Rule 4.33. [ 2 ] Second, is an appeal from Applications Judge Smart pursuant to an application filed by the Plaintiff, Mr. Swaleh, dated April 21st, 2022, wherein he asks for this relief: (

a) Mr. Lloyd provide records of his professional whereabouts during the period October 11, 2010, to April 7, 2015; (

b) That Mr. Lloyd provide records of the Plaintiff’s funds held in trust by the Defendant for the period 2007 to 2011; (

c) That the Defendant be compelled to participate in a dispute resolution process; (

d) Costs. Background [ 3 ] There is a long history to this action. The Honourable Justice Frans Slatter in the Alberta Court of Appeal cited at 2022 ABCA 243 briefly summarised the action as follows: [2] The applicant commenced an action against a third party house builder, but that action was dismissed for long delay under R. 4.33. The applicant then commenced the present action against his lawyer, the present respondent, for allowing the original action to be struck. The background circumstances are summarized in Swaleh v Lloyd , 2020 ABCA 18 . [ 4 ] The matters come before me following an order of Mr.

Justice Davidson on June 9, 2022, directing that the two appeals from the decisions of the Applications Judges be heard together. [ 5 ] A detailed history of these proceedings is contained in the affidavit of Thomas C. Lloyd, sworn February 25, 2022, which sets out the history, much of which is not relevant to the proceedings and the issues to be decided before me. However, the history is illustrative of the difficulties on this long-running file. The appeal from Applications Judge Birkett [ 6 ] On application of the Defendant, Lloyd, Applications Judge Birkett refused to dismiss the claim of Mr.

Swaleh against Lloyd under Rule 4.33. [ 7 ] In opposition to the 4.33 application Mr. Swaleh made numerous arguments with respect to service of the Notice of Appeal upon him and the timing thereof. In oral argument it became clear that there was some disruption but no error with respect to filing and service. It is to be noted that this occurred during the Covid-19 pandemic period and had more to do with process, procedure and delay in the clerk’s office than any error or failure of timeliness on the part of counsel for Lloyd. Therefore, the argument of Mr.

Swaleh as to time regarding service fails. [ 8 ] With respect to the second aspect of the 4.33 application before me I note paragraph 28 of the Brief of Mr. Lloyd, filed for this matter: 28. This action is a professional negligence action. Mr. Lloyd acted as counsel for the Plaintiff in the Underlying Action, which was a dispute between the Plaintiff and the builder of property owned by the Plaintiff. In 2017, the Underlying Action was struck for long delay. The Plaintiff commenced this Action alleging Mr. Lloyd was negligent in the Underlying action. [Footnotes omitted] 29.

On this basis, the issues in this Action include: Whether Mr. Lloyd is liable to the Plaintiff. This requires determination of whether Mr. Lloyd failed to meet the requisite standard of care in the Underlying Action. While the Amended Statement of Defence admits that Mr. Lloyd acted for the Plaintiff and that the Underlying Action was struck for long delay, further issues regarding negligence remain to be established, including what advice had

been given by Mr. Lloyd; whether that advice was followed, and what instructions Mr. Lloyd had received. If liability is established, the quantum of damages must be proven. Damages in this Action will be determined by calculating what loss the Plaintiff suffered as a result of the Underlying Action being struck. Therefore, it must be determined what quantum of damages the Plaintiff would have been entitled to and recovered against the builder of the property. [ 9 ] In the transcript of proceedings dated April 7, 2022, before Applications Judge Birkett, it is clear that counsel for Mr.

Lloyd made the following submissions: That in her view, the last step in these proceedings prior to her application was the filing of the Amended Statement of Defence of Lloyd on October 1st, 2018, and counsel goes on to argue: ... that in order for an action to be significantly advanced, a significant advance is something that moves the lawsuit forward in an essential way, considering its nature, value, importance and quality. [ 10 ] It appears from the record that since October 1st, 2018, an application was heard before Justice Loparco on the issue of adding two parties to the claim, The Alberta Lawyers’ Indemnity Association and the Law Society of Alberta.

That application to amend the Statement of Claim was dismissed by Justice Loparco, which in turn was appealed to the Alberta Court of Appeal. That appeal was again dismissed, see 2020 ABCA 18 . [ 11 ] It is noted that in May 2019, the Plaintiff emailed defence counsel’s office requesting more disclosure and receiving a reply from counsel that the Defendant had disclosed everything. On March 3rd, 2020, Defendant’s counsel writes requesting the answer to two undertakings given prior to October 1st, 2018.

No response was received and as of the date of argument of April 7, 2022, the undertakings had not been provided. The record further discloses that in February of 2022 the Plaintiff requested of defence counsel that they proceed to judicial dispute resolution. [ 12 ] In conclusion of argument by counsel for dismissal in favour of the Defendant Lloyd, Applications Judge Birkett said this: So your application just says there’s no significant advance in the action that has occurred for a period in excess of three years. So I think based on Jacobs , we would go back from February 25th. Counsel’s reply: All right.

This discussion then occurs between the Applications Judge and counsel.: Yes, because if the plaintiff is correct that he was not served with a statement of defence, that makes the last significant advance from his perspective, serving the amended statement of claim. Counsel: Yes, exactly. Applications Judge Birkett: But for the appeals. Applications Judge Birkett goes on to read from Rule 4.33: If three or more years have passed without a significant advance in an action, the Court on application must dismiss the application as against the applicant. And she understands Mr.

Swaleh to be arguing that: So you say that based on Apex v Heikkila, that knowing who the parties is a significant advance. It is something that needs to be determined before the matter can move on. Mr. Swaleh: That’s correct. [ 13 ] Then the learned Applications Judge read paragraph 86 from Jacobs , 2019 ABCA 220 . The learned Applications Judge goes on: The purpose of the Rule is to sort of prune out actions that have not been advanced. It is a mandatory rule. The whole purpose is to make sure that cases move along and ...

And she says in conclusion: So I think, you know, having looked at all the materials, and considered the case law, and Jacobs . And I am mindful that there is case that to the effect that if it is close, you should not dismiss. ... I am going to dismiss the application of counsel for the defendant. [ 14 ] I note for the record that I have found the following documents on the file: 1. Affidavit of Records filed Nov 16 2017;

2. Application by Shahab Swaleh Plaintiff filed Jun 22 2018; 3. Notice of Appeal of Master’s Judgment or Order filed Aug 30 2018; 4. Order of Master L. Smart file Sep 12 2018; 5. Proceedings filed Sep 20 2018; 6. Order of Justice D.A. Sulyma filed Oct 19 2018; 7. Order of Justice A. Loparco filed Jun 03 2019; 8. Bill of Costs of Thomas C. Lloyd filed Jun 03 2019; 9. Report of Civil appeal filed Jan 21 2020; 10. Transcript of April 7, 2022 filed April 26 2022; 11. Affidavit of Service filed May 05 2022; 12. Application Shahab Swaleh (Plaintiff) filed Apr 21 2022; 13.

Notice of appeal of Master’s Judgment or Order filed April 26, 2022; 14. Order of Master L.R. Birkett, QC filed May 10, 2022; 15. Notice of Appeal of Master’s Judgmetn or Order filed May 18, 2022; 16. Order of Master W.S. Schlosser filed Jul 24 2018; 17. Proceedings of May 12, 2022 filed Jun 16 2022; 18. Order of Justice K.H. Davidson filed June 10, 2022; 19. Application filed Jun 16, 2022. [ 15 ] I note, in a review of the Alberta Rules of Court under the Information Notes: The foundational rules are critical to the

interpretation of everything else in the Rules and Rule 1.2(1) of the Foundational Rules says:

(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost effective way;

(2) In particular, these rules are intended to be used (

a) to identify the real issues in dispute; (

b) to facilitate the quickest means of resolving a claim at the least expense; ... [ 16 ] Considering all the material filed, noting the attention given by Applications Judge Birkett to the issues before the Court, and the process that occurred in the Court of Queen’s Bench and in the Alberta Court of Appeal that she was correct in her decision, not to dismiss the action of the Plaintiff against the Defendant, Lloyd. Therefore, the appeal of Applications Judge Birkett is dismissed.

The Appeal regarding the Decision of Application Judge Smart [ 17 ] With respect to the second matter before me, the appeal of Applications Judge Smart’s decision, I note the position of the respondent, Thomas Lloyd, as to the professional whereabouts of Lloyd.

The claim of the Plaintiff against the Defendant Lloyd is with respect to professional negligence and how the trust account information or how the account was handled is not relevant to the issue as plead and defended. [ 18 ] In his decision dated May 12th, 2022, and included in the Record of Proceedings, it is clear that Applications Judge Smart was familiar with the file, having dismissed the application by Mr. Swaleh years earlier to amend his Statement of Claim to add the Law Society and ALIA as defendants.

Interestingly, Judge Smart having reviewed the material before the hearing on May 12th, said this at p 2, line 8, referring and directing his comments to the plaintiff: Mr. Lloyd certainly did you wrong … the action was commenced and it was allowed to be struck for failure to proceed and that’s quite straightforward. [ 19 ] Again, Applications Judge Smart goes on at p 6, line 15: He (referring to the Defendant) failed to move the action along. [ 20 ] Counsel for Mr. Lloyd at the hearing said this at p 8, line 4:

This is a simple action that a lawyer took on a litigation … and allowed the action to go stale while he was still counsel of record.

Applications Judge Smart at line 23: There is no question he (referring to the lawyer/defendant) didn’t perform the duties … at line 28: There is no doubt that he didn’t perform the duties that were there. [ 21 ] I therefore return at this time to the remedy claimed or sought with respect to the appeal of Applications Judge Smart. [ 22 ] With respect to the first matter on the appeal from Applications Judge Smart wherein he denied the application for further disclosure regarding the whereabouts of the Defendant Lloyd during the relevant period, that request is denied. [ 23 ] With respect to the second matter regarding the production of the trust records of the Defendant Lloyd during the relevant period, for the entire firm, that appeal is dismissed. [ 24 ] I decline to make any order with respect to directing the parties to proceed to a Judicial Dispute Resolution. [ 25 ] I am satisfied that the Defendant will provide records of the Plaintiff’s funds held in trust relative to the period 2007 to 2011, being only funds held by the Defendant relative to this action on file, given to him by the Plaintiff.

That information is available and readily presentable by the Defendant.

It is the privilege of the Plaintiff to have that information released to him. [ 26 ] Considering all the material filed, noting the attention given by Applications Judge Smart to the issues before the Court, and the process that occurred in the Court of Queen’s Bench and in the Alberta Court of Appeal that he was correct in his decision, to reject the Plaintiff’s application for further disclosure regarding the whereabouts of the Defendant as well as the rejection of the application for production of the trust records, subject to paragraph 24 of this decision.

Therefore, the appeal of Applications Judge Smart is dismissed. Conclusion [ 27 ] In conclusion then, the appeal of Applications Judge Birkett’s decision is dismissed. The appeal of Applications Judge Smart’s decision with the exception noted in paragraph 24 is dismissed. [ 28 ] If the parties cannot agree as to costs, they may provide submissions to me within 30 days of this judgment. Heard on the 2 nd day of February, 2023. Dated at the City of Edmonton, Alberta this 28 th day of April, 2023. W.P. Sullivan J.C.K.B.A. Appearances: Shahab Swaleh Plaintiff/Appellant/Respondent/ Self-Represented Litigant Laura K.

Feehan for the Defendant/Appellant/Respondent