Pitblado LLP v. Sidhu et al., 2015 MBCA 52

Citation: Pitblado LLP v. Sidhu et al., 2015 MBCA 52 Date: 20150521 Docket: AI14-30-08255 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice Alan D. MacInnes Mr. Justice Christopher J. Mainella BETWEEN : PITBLADO LLP ) S. Green, Q.C. ) for the Appellants (Plaintiff) Respondent ) ) T. W. Turner - and - ) for the Respondent ) ) KHUSHWANT SIDHU, also known as KRIS ) Appeal heard: SIDHU, ZAFIR RASHID, also known as ) January 9, 2015 ZAF RASHID, SATPREET THIARA, ) also known as SAT THIARA ) Judgment delivered: ) May 21, 2015 (Defendants) Appellants ) MONNIN J.A. [ 1 ] This is an appeal from a

summary judgment wherein the defendants were ordered to pay the plaintiff the sum of $49,377.54 plus interest and costs. The amount of the

summary judgment represents the outstanding balance owed to the plaintiff law firm by the defendants as fees for services rendered. [ 2 ] The action was brought by the plaintiff under the provisions of Rule 20A of the Queen’s Bench Rules (expedited actions rule), Man. Reg. 553/88 . [ 3 ] The defendants’ first ground of appeal is that the judge who granted the order for

summary judgment should have recused himself from hearing the application as he was also the case conference judge appointed under Queen’s Bench Rule 20A. [ 4 ] In the event that they are unsuccessful under their first ground of appeal, the defendants take the position that

summary judgment should not have been granted as the plaintiff did not make out a prima facie case, and furthermore, the fairness and reasonableness of the account submitted by the plaintiff was a genuine issue to be tried. They further take the position that the account should have been referred to taxation. [ 5 ] Finally, the defendants appeal the order of double costs awarded against them. [ 6 ] The plaintiff takes the position that under the provisions of Queen’s Bench Rule 20A, the case conference judge is the designated judge to hear all motions that arise from the litigation, including an application for

summary judgment. [ 7 ] The plaintiff also takes the position that the judge was correct in his finding that it had demonstrated a prima facie case and that the defendants had not only failed to rebut the onus upon them, but failed to demonstrate that there existed a genuine issue to be tried.

It further takes the position, relying on Queen’s Bench Rule 71.01(1), that as the defendants had not sought to have their account taxed within six months of it being rendered, they should not be entitled to do so at this stage of the proceedings. [ 8 ] As an alternative to the primary remedy it was seeking, the plaintiff sought judgment for $35,000, which it argues was an amount that the parties had agreed upon as a way of settling their dispute. The defendants indicated to the court that they had no

opposition to judgment being entered against them in that amount. [9] I deal firstly with the issue of recusal. [10] The following elements of the Queen’s Bench Rule 20A are those that I consider relevant to the matter at hand: Motions 20A(10) The following applies with respect to a motion in an expedited action: (

a) if a case conference has been held, all motions must be made to the case conference judge; (

b) if a case conference has not been held, a party may not make a motion, except a motion (

i) to a master, if the motion is within the jurisdiction of a master and can be made without notice, or (ii) to a judge, if the motion is urgent. . . . . . Same case conference judge 20A(21) To the extent possible, the case conference judge who presides over the first case conference must also (

a) preside over any subsequent case conference; and (

b) preside over any motion in the expedited action filed after the close of pleadings. . . . . . Case conference judge not to preside at trial 20A(54) Except with the consent of the parties, a judge who presides at a case conference under this Rule must not preside at the trial ofthe action. [11] In order for the defendants to be successful in arguing that the judge should have recused himself from hearing themotion for

summary judgment, they must be able to satisfy me that such a motion is, in fact, in the nature of a trial. Existing case lawdoes not support that argument. [12] In Johnson (G.D.) Ltd. v. Royal Bank of Canada (1998), (MB CA), 126 Man.R. (2d) 285 (C.A.), amotion judge granted

summary judgment to the defendant. In allowing the plaintiff’s appeal, Twaddle J.A. had occasion to comment onQueen’s Bench Rule 20.03(4) (at para. 6): A judge hearing a motion under this sub-rule should not be misled by the heading which states, “Trial on affidavit evidence.” Theproceeding is not a trial, but a

summary application and should not be allowed where it would be inappropriate -- unjust, if you will -- togrant judgment without a trial. …. [13] The comments of Twaddle J.A. have subsequently been cited with approval in Jane Doe et al. v. Manitoba, 2005

MBCA 109 at para. 26, 195 Man.R. (2d) 309; and Lake Louise Limited Partnership v. Canad Corp. of Manitoba Ltd. et al., 2011 MBQB225 at para. 26, 269 Man.R. (2d) 174. [14] This court has also drawn a distinction between a full trial and the “interlocutory” nature of a motion for

summaryjudgment. In Laurie v. Parham, 2010 MBCA 62, 255 Man.R. (2d) 129, MacInnes J.A. wrote (at para. 79): In the plaintiff’s case, the decision of the trial judge was rendered after a full trial with viva voce evidence, not after an interlocutorymotion for

summary judgment. …. [15] Finally, one must remain cognizant of two aspects of expedited actions set out in the rules. First, the underlyingrationale of the expedited actions rule is to secure the just, most expeditious and least expensive manner to determine civil proceedingsand the rule should, therefore, be liberally construed to achieve that goal. Second, Queen’s Bench Rule 20A(22) obligates the caseconference judge to explore settlement of the expedited action during a case conference. The mere fact that the case conference judgehas heard settlement discussions does not disqualify that judge per se from hearing a motion for

summary judgment. That is not to saythat a motion for recusal can never be brought in the exceptional case where the interaction of the case conference judge with the partiesmakes it impossible for the judge to impartially decide a motion for

summary judgment. In such a case, the party wishing to recuse thecase conference judge is obligated to advise of its intention to seek recusal at the earliest opportunity and file its motion for recusal sothat it can be heard before the motion for

summary judgment. [16] Therefore, based on what I have set out, and the absence of evidence here that the judge should have recused himself, Icome to the conclusion that the judge was not in error when he declined the defendants’ request to recuse himself. On the strength of theexpedited actions rule, he was the proper judge to hear the plaintiff’s application for

summary judgment. Accordingly, I would dismissthis ground of appeal. [17] Having come to the conclusion that the judge could hear the application for

summary judgment, I must now be satisfiedthat he did nor err in granting the relief that was sought. The granting of such relief is an exercise of discretion by a judge and this courtshould not overturn such a decision unless the judge misdirected himself or his decision is so clearly wrong as to amount to an injustice. See Homestead Properties (Canada) Ltd. v. Sekhri et al., 2007 MBCA 61, 214 Man.R. (2d) 148. [18] The test that must be met to successfully advance an application for

summary judgment was also set out in Homesteadwhere Freedman J.A. stated (at paras. 14-15): The test for

summary judgment is well established, and no further detailed explanation is needed. The test is to the same effectregardless of whether the moving party is the plaintiff or the defendant. …. When a plaintiff moves, he must prove, on a prima facie basis, that his action will succeed. If he meets that burden, then the defendanthas the burden to establish that there is a genuine issue for determination. If he fails to do so,

summary judgment granting the claim willfollow. As was made clear in Blanco et al. v. Canada Trust Co. et al. (2003), 2003 MBCA 64 , 173 Man.R. (2d) 247; 293W.A.C. 247; 2003 MBCA 64, at para. 62, regardless of who is the moving party, the analysis is a two-step process. [19] The judge found that the plaintiff had proved a prima facie case that the defendants owed it the amount claimed. In hisoral reasons, he stated, “All of the statements of account have been disclosed.

They show all of the time that was expended by thevarious lawyers in the firm and the hourly rates of those lawyers.” [20] He then went on to find that the defendants had not established that there was a genuine issue for trial. He furtherstated: The defendants have provided no evidence, beyond the defendants’ own word, that the work billed was not done and that the hourlyrates were not fair or reasonable.

If I had any evidence that the fees charged were too high for the work that Pitblado did, or that the feescharged were not fair and reasonable, from a person who understands legal work, such as an expert witness lawyer, that might besufficient to overcome the prima facie case that Pitblado has proved. But I have nothing except an affidavit from the defendant, Kris Sidhu, which is not helpful. I do not believe most of what is in it. Theissues he has raised in many of the paragraphs have already been refuted by the Pitblado firm. Yet he continues to rely upon them.

There is no evidence from Kris Sidhu, any of the other defendants, or any other witness, to say that all of the work that Pitblado hasbilled for was not done. I am satisfied that the defendants have just stonewalled in this matter. They have done their best to delay the matter as long as theypossibly can. To put it bluntly, they do not want to pay the fees.

[21] The defendants’ response to the prima facie case made out by the plaintiff was simply to take the position that its billshould be taxed. In the face of the evidence that was before the motion judge, as to the retainer between the parties and the descriptionby the plaintiff of the services performed, I have not been satisfied that the judge erred when he found that the defendants had notdischarged their burden of meeting the plaintiff’s prima facie case. [22] The defendants also argued that notwithstanding s. 53 of The Legal Profession Act, C.C.S.M., c. L107 and Queen’sBench Rule 71, they could still apply to have the plaintiff’s bill of costs taxed.

Section 53 provides as follows: Client may apply for assessment 53 A client may, at any time within six months after receiving a bill from a member, apply to the Court of Queen’s Bench for anassessment of the bill, or of a bill previously rendered in respect of the same matter. [23] Queen’s Bench Rule 71.01 states: Application for assessment 71.01(1) A lawyer’s client may make an application to the court at any time within six months after receiving the lawyer’s bill for anassessment of (

a) that bill; or (

b) a bill previously rendered in respect of the same matter; by filing a notice of application in Form 71A verified by an affidavit made in accordance with rule 71.04. Legal Profession Act prevails 71.01(2) If the time for filing an application under subrule (1) conflicts with

section 53 of The Legal Profession Act, that Act prevails. [24] I agree with the position taken by the defendants that, notwithstanding the above-quoted statutory provisions, there isno time limit to the taxation of a lawyer’s account. Authority for that position can be found in reasons authored by Hamilton J. (as shethen was) in Compton Agro Inc. (Bankrupt) v. Buchwald Asper Gallagher Henteleff (1998), (MB KB), 125 Man.R.(2d) 150 (Q.B.). [25] However, the fact remains that at the time the plaintiff brought its motion for

summary judgment, or since for thatmatter, the defendants have made no attempt to have the bill taxed. Stating that it can be taxed is not an answer to the prima facie casethat was made out on the

summary judgment application. The defendants cannot now be heard to say that the plaintiff should not beable to obtain the remedy it lawfully obtained because they failed to act. The defendants have had more than ample opportunity to havethe plaintiff’s bill taxed, but they have failed to do so. That failure cannot now be used to deny the plaintiff to that which it is entitled. [26] Finally, the defendants argue that the judge should not have awarded double costs to the plaintiff. In awarding suchcosts, the judge said: $8,500.

Be that as it may, in view [of] the conduct of the defendants throughout this matter, the significant delays, and the stonewallingthat they have exhibited, I am not going to restrict it to that amount. I am going to order costs in the sum of $10,000 in favour of theplaintiff, and the disbursements in the sum of $491. [27] The awarding of costs is a discretionary matter. I am not satisfied that the judge misdirected himself or that his decisionwas so wrong as to amount to an injustice.

Therefore, in my view, there is no justification for appellate interference. [28] In the result, the appeal is dismissed with costs to the plaintiff. J.A.

I agree: J.A. I agree: J.A.