Malton v. Attia, [2016] A.R. TBEd. MY.003

• Judge: Paperny, O'Ferrall and Veldhuis, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 29, 2016
• Citations: [2016] A.R. TBEd. MY.003;2016 ABCA 130

Malton v. Attia, [2016] A.R. TBEd. MY.003

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2016] A.R. TBEd. MY.003

Janette Malton and John Malton (respondents/plaintiffs) v. Ashraf S. Attia, also known as Sam Attia, and Attia Reeves Tensfeldt Snow (appellants/defendants)

(1503-0075-AC; 2016 ABCA 130)

Indexed As: Malton v. Attia et al.

Alberta Court of Appeal

Paperny, O'Ferrall and Veldhuis, JJ.A.

April 29, 2016.

Summary:

The plaintiffs hired the defendant lawyer and his law firm to represent them in their lawsuit against HouseMaster Inspection Service for a deficient house inspection. The plaintiffs were partially successful (see Whighton et al. v. Integrity Inspections Inc. et al. (2007), 418 A.R. 222). In limiting the plaintiffs' damages to an amount far less than expected, the trial judge commented that the evidence presented by the defendant lawyer "as it related to damages was decidedly unhelpful". The plaintiffs made a complaint to the Law Society of Alberta with respect to the defendants' management of the HouseMaster action. In June 2008, the plaintiffs brought a negligence action for damages against the defendants. After the trial ended, the defendants requested that the court address one issue before the parties would argue the whole case. At issue was whether it was fatal to the plaintiffs' negligence action that they failed to call expert evidence as to the standard of care.

The Alberta Court of Queen's Bench, in a judgment reported (2013), 573 A.R. 200, held that expert evidence was not necessary for the court to evaluate whether the defendant lawyer was negligent in the conduct of the action.

The Alberta Court of Queen's Bench, in a judgment reported (2015), 611 A.R. 200, found the defendants liable in negligence. The court awarded $359,000 consequential damages, $10,000 punitive damages, prejudgment interest and costs to be determined. The defendants were also ordered to pay to Legal Aid Alberta $25,000 in punitive damages for the defendant lawyer's egregious breach of solicitor-client privilege owed to other clients. The plaintiffs sought costs. The defendants argued that the plaintiffs should receive only restricted costs awards because they were self-represented.

The Alberta Court of Queen's Bench, in a judgment reported (2015), 611 A.R. 315, awarded the self-represented plaintiffs costs as follows: "given the litigation misconduct of Attia, himself and through his counsel, I award full Schedule 'C' costs for the Attia portion of the trial and all procedures leading up to the trial not already covered by costs awards; full indemnity for the unbundled services of Wier Bowen LLP pertaining to the Attia Action; second counsel fee under Schedule 'C'; $2,500.00 for late disclosure; $20,000.00 for misleading the Court into splitting the case at the conclusion of the trial; and disbursements". The defendants appealed the decisions respecting liability and costs, arguing that (1) the trial judge made adverse fact findings without giving the defendants an opportunity to be heard and make submissions on those issues and (2) the trial judge displayed animus against the defendants and their counsel sufficient to raise a reasonable apprehension of bias.

The Alberta Court of Appeal set aside the liability and costs decisions and ordered a new trial. The court stated that "there are several instances where the [defendants] were not given an adequate opportunity to know and meet the case against them, and where the trial judge stepped outside her appropriate role as impartial arbitrator. As such, the [defendants] were not afforded a procedurally fair trial".

Courts - Topic 560

Judges - Powers - Authority to act ex mero (on own motion) - [See Courts - Topic 592 ].

Courts - Topic 586

Judges - Duties - Duty to hear evidence and submissions of a litigant - [See Courts - Topic 592 ].

Courts - Topic 587

Judges - Duties - To decide according to evidence and pleadings - [See Courts - Topic 592 ].

Courts - Topic 590

Judges - Duties - Duty to appear just and impartial - [See Courts - Topic 592 ].

Courts - Topic 592

Judges - Duties - Duty to conduct fair and impartial hearings - The self-represented plaintiffs brought a negligence action for damages against the defendant lawyer and his law firm respecting his representation of them in litigation - The trial judge rejected the defendants' preliminary argument that the plaintiffs' failure to call expert evidence on the standard of care owed by a lawyer was fatal - The trial judge was highly critical of the lawyer's intended appeal of that preliminary ruling and how he conducted the case - The trial judge found the defendants liable in negligence - The plaintiffs were awarded consequential damages and punitive damages - The Alberta Court of Appeal set aside the liability and costs decisions and ordered a new trial - The court stated that "there are several instances where the [defendants] were not given an adequate opportunity to know and meet the case against them, and where the trial judge stepped outside her appropriate role as impartial arbitrator. As such, the [defendants] were not afforded a procedurally fair trial" - The trial judge, on her own motion, amended the statement of claim to include an "alternative theory" of liability not pleaded by the plaintiffs - The court stated that "The [defendants] were not given the opportunity to respond to the assumptions, findings and conclusions drawn by the trial judge in the alternative scenario, either by way of rebuttal evidence, cross-examination or legal argument. ... That error resulted in a serious breach of the rules of natural justice, sufficient to warrant a new trial." - Further, the trial judge erred in awarding punitive damages by making unsubstantiated findings of misconduct without offering the lawyer an opportunity to respond with evidence and argument - In any event, the misconduct alleged related to matters irrelevant to the plaintiffs' action and the plaintiffs had not sought punitive damages - The court stated that "the numerous unjustified criticisms of and adverse findings against the [defendants] and their counsel ... raise a concern that the trial judge was predisposed against the [defendants]. ... Taken cumulatively, they point to an animus against the [defendants] and their counsel that is troubling." - See paragraphs 31 to 86.

Practice - Topic 9229.1

Appeals - New trials - Grounds - Bias (incl. reasonable apprehension of bias) - [See Courts - Topic 592 ].

Counsel:

P.G. Kirman, for the respondents;

P.A. Smith, Q.C., as agent for F.V. Cox, for the appellants.

This appeal was heard on March 4, 2016, before Paperny, O'Ferrall and Veldhuis, JJ.A., of the Alberta Court of Appeal.

On April 29, 2016, the following memorandum of judgment was filed by the Court.