Koopmans v. Joseph et al., (2014) 592 A.R. 56 (QB)

• Judge: Greckol, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 09, 2014
• Citations: (2014), 592 A.R. 56 (QB);2014 ABQB 395

Koopmans v. Joseph (2014), 592 A.R. 56 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JL.017

Johannes Koopmans also known as Joe Koopmans (appellant) v. Robert S. Joseph and Prowse Chowne LLP (respondents)

(1303 10337; 2014 ABQB 395)

Indexed As: Koopmans v. Joseph et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Greckol, J.

June 19, 2014.

Summary:

Koopmans retained Joseph and Prowse Chowne LLP (the defendants) to request a review application before the Energy Resources Conservation Board (ERCB) of a well licence that was granted in 1996. Koopmans also instructed Joseph to make an offer of settlement to the current owner of the licence. The ERCB denied the application for a review of the license. There was no settlement. Koopmans issued a civil claim against the defendants for $25,000, including the return of the legal fees he paid ($4,254.23), because Joseph "did not act in a timely manner and I received no benefit from the defendant's services". He also sought damages for loss of compensation.

The Alberta Provincial Court dismissed the claim. Koopmans appealed.

The Alberta Court of Queen's Bench allowed the appeal. Legal services were not provided by the defendants in a timely and cost effective fashion given a contextual analysis of the facts. Koopmans was awarded $4,254.23 (the return of his legal fees) in damages for negligence.

Administrative Law - Topic 2484

Natural justice - Procedure - At hearing - Adjournments - [See Practice - Topic 5075 ].

Barristers and Solicitors - Topic 2501

Negligence - General principles - Standard of care - [See third Barristers and Solicitors - Topic 2587 ].

Barristers and Solicitors - Topic 2505

Negligence - General principles - Considerations in determining liability - The defendant law firm was retained in 2012 to represent the plaintiff to request a review application before the Energy Resources Conservation Board (ERCB) of a well licence that was granted in 1996 - The plaintiff had not been notified of the application in 1996 - The ERCB denied the applicant the right of review - The trial judge found that there was no negligence in the conduct of the file before the ERCB - The Alberta Court of Queen's Bench concluded that due to the conclusions of the ERCB decision, which would not have been different even if the lawyers could have marshalled further arguments on the notification question, the trial judge did not make a palpable or overriding error, or otherwise err, concerning the question of whether there was negligence in the substance of the representations by the law firm before the ERCB - The decision of the ERCB showed that had the hearing proceeded, the plaintiff still would not have been successful in overturning the approval decision since there was compliance with all ERCB regulations - See paragraphs 63 to 77.

Barristers and Solicitors - Topic 2506

Negligence - Obligations or duties of a lawyer when acting for a client - The plaintiff retained the defendant lawyer to represent him - He claimed that legal services were not provided in a timely and cost effective fashion - The lawyer accounted for the delay by his personal circumstances: a teaching commitment and expecting a baby - The Alberta Court of Queen's Bench stated that "I do not wish to be unduly critical, but it is part of a lawyer's duty to refrain from taking on work that he or she cannot complete in a timely fashion; the client should not bear the consequences. This is the reality of practice." - See paragraph 98.

Barristers and Solicitors - Topic 2587

Negligence - Particular negligent acts - Settlements - The Alberta Court of Queen's Bench stated that "In my view, the question that arises in this case (whether the lawyers acted expeditiously in commencing negotiations given the time sensitivity of an impending determinative tribunal decision) does not require expert evidence, but is a 'matter of common sense and fairness on which the court is competent to rule,' ... . It is knowledge common to lawyers active in the practice of law. The trial judge did not require expert evidence on this point and proceeded to find that legal services were rendered in a timely fashion without expert evidence on the point. That conclusion is reviewable on the correctness standard and I conclude it is wrong." - See paragraph 91.

Barristers and Solicitors - Topic 2587

Negligence - Particular negligent acts - Settlements - Joseph was retained in 2012 to represent the plaintiff to request a review application before the Energy Resources Conservation Board (ERCB) of a well licence that was granted in 1996 - The plaintiff also provided Joseph with instructions to draft an offer of settlement to the current owner of the well licence (Penn West) - Twenty-six days elapsed between the decision to send an offer to Penn West seeking a settlement, and the letter being sent to start the negotiations - The decision of the ERCB to deny the applicant the right of review was delivered hours before the deadline in the settlement proposal - The trial judge found that there was no negligence in the way the lawyers handled the case against Penn West: the services were rendered in a timely manner, and Penn West would not have responded to the high offer in any event - The Alberta Court of Queen's Bench held that the trial judge erred in finding that the legal services were rendered in a timely fashion without expert evidence on that point - The trial judge was also wrong to measure whether services were provided in a timely fashion (the offer of settlement) by viewing only the time lapse from April 12, 2012 - The window of opportunity to take advantage of Penn West's vulnerability to an adverse ERCB ruling had been open since February 2012, when the law firm sent the letter to the ERCB seeking a review of the Penn West license - Further, the ERCB was thought to be imminent - Time was of the essence "and the opening salvo was sent too late to be effective." - See paragraphs 78 to 93.

Barristers and Solicitors - Topic 2587

Negligence - Particular negligent acts - Settlements - The Alberta Court of Queen's Bench held that legal services were not provided by the defendants (a lawyer and the law firm he worked for) in a timely and cost effective fashion - The standard of care to be expected of a reasonably competent lawyer in like circumstances required the lawyer to act quickly to try to achieve a settlement - "The work required of him (drafting a letter with an opening position) was neither complex, difficult, nor time consuming. It should have been done as soon as reasonably possible or not at all. The window of opportunity opened in February, but the letter did not issue until May 8, 2012. By the time the letter went out, the money spent for the services faced the prospect of not only diminishing returns, but non-existent returns. The standard of care in these circumstances does not require expert evidence: it is a matter of common sense that would be obvious to a lay person or lawyer alike. Negligence is proved if the conduct of the defendant falls below the standard of care to be expected of a reasonably competent lawyer in like circumstances." - The court concluded that the defendant failed to act expeditiously - It followed that the trial judge erred in finding that the conduct of the defendants met the standard expected of a reasonably competent lawyer in the circumstances in conformity with rule 2.01(1)(e) of the Code of Conduct that a lawyer handle a client's case in a timely and cost effective manner - See paragraphs 99 to 103.

Barristers and Solicitors - Topic 2965

Negligence - Evidence and proof - Expert evidence - The plaintiff retained the defendant lawyer (Joseph) to represent him for an application to the Energy Resources Conservation Board (ERCB) for a dispute with Penn West Energy Corporation - He claimed that Joseph rendered legal services that were negligent - He sought to adduce evidence from another lawyer as to the standard by which Joseph should be judged - The trial judge acceded to the objection that the lawyer was not qualified to give an expert opinion - In the result, the trial judge found that the plaintiff did not adduce expert evidence on the crucial issue of the standard to be expected of a lawyer in the context of the two areas of representation that the plaintiff alleged were negligently conducted - The Alberta Court of Queen's Bench found no palpable or overriding error - "The learned trial judge decided that an expert was required to provide evidence as to alleged negligence concerning the representation of [the plaintiff] before the ERCB. I find no error in that conclusion given that the ERCB is a highly specialized tribunal, undoubtedly governed by its own constituent statute and rules of procedure and practice. I also agree that expert evidence was required to evaluate the settlement negotiations undertaken with Penn West ... " - See paragraphs 56 to 62.

Barristers and Solicitors - Topic 2965

Negligence - Evidence and proof - Expert evidence - [See first Barristers and Solicitors - Topic 2587 ].

Barristers and Solicitors - Topic 3241

Compensation - Taxation or assessment of accounts - General - [See first Barristers and Solicitors - Topic 3313.1 ].

Barristers and Solicitors - Topic 3313.1

Compensation - Measure of compensation - Effect of negligence, breach of contract or fiduciary duty - The plaintiff claimed that the defendant lawyer rendered services that were negligent - He sought the return of the legal fees because he received no benefit - The trial judge accepted the defendants' submission that he did not have jurisdiction to rule on that specific issue - The accounts had been the subject of review by a taxation officer pursuant to rule 10.19 of the Alberta Rules of Court - As such, issue estoppel and res judicata were applicable - The Alberta Court of Queen's Bench held that the trial judge erred - "This submission by counsel and conclusion by the judge conflates the question of quantum of legal fees and the question of incompetence or breach of contract by the lawyer retained, leading to return of legal fees as a remedy. The review officer deals with quantum, not questions of incompetence or breach of contract ... . The issue before the trial judge was the claim that legal fees should be returned because [the plaintiff] received no benefit. That is, whether the legal fees should be returned because of incompetence or failure to provide services promised." - See paragraphs 50 to 54.

Barristers and Solicitors - Topic 3313.1

Compensation - Measure of compensation - Effect of negligence, breach of contract or fiduciary duty - The plaintiff (Koopmans) claimed that the defendant lawyer (Joseph) rendered services that were negligent - He alleged that a settlement would have been reached with Penn West had Joseph conducted negotiations in a timely fashion - Koopmans sought damages in the sum of the legal bill that he paid ($4,254.23), as well as damages for the lost opportunity to reach settlement ($20,745.77) - The in-house lawyer for Penn West testified that he would not have responded to the opening offer in any event because it was too high - Counsel for the defendants argued at trial that damages for a lost settlement could not be proven - The Alberta Court of Queen's Bench, having determined that the decision of the trial judge that the negotiations were handled in a timely manner was an error of law, stated that "I could not presume to award damages for failed settlement discussions since I cannot conclude, absent expert evidence, that a settlement would likely have been achieved. In my view, the damages that can be awarded for lost opportunity are the legal fees charged by Mr. Joseph since that is an established cost incurred by Mr. Koopmans for the lost opportunity to engage in meaningful negotiations." - See paragraphs 105 to 122.

Practice - Topic 5075

Conduct of trial - Adjournments - Review of decision to refuse adjournment - Koopmans retained a lawyer (Joseph) to represent him for an application to the Energy Resources Conservation Board (ERCB) concerning a dispute with Penn West Energy Corporation - He claimed against Joseph and the law firm he worked for, on the basis that legal services were not provided in a timely and cost effective fashion - Koopmans sought to adduce evidence from a lawyer with 35 years' experience, but no expertise in proceedings before the ERCB, about the 26 day time period it took for Joseph to undertake settlement discussions with Penn West - The defendants had provided notice of objection - The trial judge ruled that the lawyer's lack of independence in the matter served to "disqualify" him as an expert, and refused to allow Koopmans an adjournment to obtain expert evidence - The Alberta Court of Queen's Bench held that the small claims judge erred - The adjournment was needed in order to ensure that Koopmans had a reasonable opportunity to present his evidence with the aid of an expert witness and to make his arguments and answer the opposing case - "The breach of natural justice is demonstrated graphically by the fact that the trial judge denied the request for an adjournment to obtain expert evidence and then proceeded to find for the defendants, in the main, because of lack of expert evidence." - See paragraphs 32 to 49.

Cases Noticed:

Kieller v. Sentinel Self-Storage Corp. (2009), 463 A.R.99; 2008 ABQB 783, refd to. [para. 10].

Rezources Inc. v. Gift Lake Development Corp. (2008), 444 A.R. 196; 2008 ABQB 254, refd to. [para. 39].

BP Canada Energy Co. et al. v. Energy and Utilities Board (Alta.) et al., [2004] A.R. Uned. 30; 30 Alta. L.R.(4th) 248; 2004 ABCA 75, refd to. [para. 41].

Prassad v. Minister of Employment and Immigration, [1989] 1 S.C.R. 560; 93 N.R. 81, refd to. [para. 41].

R. v. Barrette, [1977] 2 S.C.R. 121; 10 N.R. 321, refd to. [para. 41].

R. v. Adams and Lambretta (1987), 78 A.R. 284; 52 Alta. L.R.(2d) 369 (C.A.), refd to. [para. 42].

N.M.C. et al. v. B.M., [2009] A.R. Uned. 254; 2009 ABCA 355, refd to. [para. 42].

Patricia Hills Landowners Society v. Subdivision and Development Appeal Board (Parkland County) et al., [2010] A.R. Uned. 781; 2010 ABCA 413, refd to. [para. 43].

R. v. Dominion Drug Stores Ltd., [1919] 2 W.W.R. 413; 14 Alta. L.R. 384, refd to. [para. 44].

Scheidt v. Scheidt (2014), 566 A.R. 303; 597 W.A.C. 303; 2014 ABCA 24, refd to. [para. 45].

A.R. v. Director of Child, Youth and Family Enhancement (Alta.) (2014), 575 A.R. 36; 612 W.A.C. 36; 2014 ABCA 148, refd to. [para. 45].

Duford v. Lenz, [2006] A.R. Uned. 509; 2006 ABQB 609, refd to. [para. 53].

Adeshina v. Litwiniuk & Co. et al. (2010), 483 A.R. 81; 2010 ABQB 80, refd to. [para. 55].

Millican v. Tiffin Holdings Ltd. (1965), 49 D.L.R.(2d) 216 (Alta. S.C.), revd. (1965), 53 D.L.R.(2d) 674 (Alta. S.C.), affd. [1967] S.C.R. 183, refd to. [para. 56].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 56].

Spence v. Bell (1982), 39 A.R. 239 (C.A.), refd to. [para. 56].

Zink v. Adrian (2005), 208 B.C.A.C. 191; 344 W.A.C. 191; 2005 BCCA 93, refd to. [para. 59].

Malton v. Attia et al. (2013), 573 A.R. 200; 2013 ABQB 642, refd to. [para. 88].

Kelly v. Lundgard et al. (2001), 286 A.R. 1; 253 W.A.C. 1; 2001 ABCA 185, refd to. [para. 88].

Posnikoff v. Strauss et al. (2009), 462 A.R. 234; 2009 ABPC 293, refd to. [para. 112].

Palmer v. Van Keulen et al. (2004), 375 A.R. 341; 2005 ABQB 239, refd to. [para. 117].

Authors and Works Noticed:

Law Society of Alberta, Code of Professional Conduct, rule 2.01(1)(e) [para. 101].

Counsel:

J. Koopmans, self-represented party;

Mr. Hopfner (Emery Jamieson), for the respondents.

This appeal was heard on January 10 and May 9, 2014, before Greckol, J., of the Alberta Court of Queen's Bench, who delivered the following judgment and reasons for judgment, dated at Edmonton, Alberta, on June 19, 2014.