Malton v. Attia et al., (2015) 611 A.R. 315 (QB)

• Judge: Moen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 27, 2015
• Citations: (2015), 611 A.R. 315 (QB);2015 ABQB 430

Malton v. Attia (2015), 611 A.R. 315 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JL.050

Janette Malton and John Malton (plaintiffs) v. Ashraf S. Attia also known as Sam Attia, Ashraf S. Attia, also known as Sam Attia Professional Corporation, Attia Reeves Tensfeldt Snow (defendants A) and Dr. Brian Pasemco, Dr. Brian Pasemco Professional Corporation, Lucie Bernier, Lucie Bernier Professional Corporation, Dr. John Doe, Dr. John Doe Professional Corporation, Stony Plain Dental Centre (defendants B) and Dr. Mangi Tauh, Dr. Mangi Tauh Professional Corporation, Meadowlark Family Clinic, Youssef Wafaa (defendants C) and Dr. Parvis Sumani, Dr. Parvis Sumani Professional Corporation, Parkland Medical Clinic also known as Parkland Medical & Parkland Medical Associates (defendants D) and Dr. Hess Boschma, Dr. Hess Boschma Professional Corporation, Wabamun Medical Clinic (defendants E) and Her Majesty the Queen in the Right of Alberta (defendant F)

(0803 08190; 2015 ABQB 430)

Indexed As: Malton v. Attia et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moen, J.

July 3, 2015.

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 defendant's management of the HouseMaster action. In June 2008, the plaintiffs brought a negligence action for damages against the defendant. After the trial ended, the defendant 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 defendant liable in negligence. The court awarded $359,000 consequential damages, $10,000 punitive damages, prejudgment interest and costs to be determined. The defendant was also ordered to pay to Legal Aid Alberta $25,000 in punitive damages for the defendant's egregious breach of solicitor-client privilege owed to other clients. The plaintiffs sought costs. The defendant argued that the plaintiffs should receive only restricted costs awards because they were self-represented.

The Alberta Court of Queen's Bench 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".

Practice - Topic 6986

Costs - Entitlement - Bars - Litigant acting on own behalf - A lawyer was found negligent in conducting the plaintiffs' action - The plaintiffs received far less damages than they should have been awarded - In a subsequent action against the lawyer, the plaintiffs largely represented themselves, with some assistance by a law firm for certain steps and in preparing materials - The Alberta Court of Queen's Bench held that the plaintiffs were entitled to costs under rule 10.31(5) - The plaintiffs competently represented themselves in this complex negligence action against their lawyer - Conversely, the lawyer significantly contributed to the complexity of the proceeding by doing poor and incomplete research and failing to admit obvious liability - The plaintiffs were entitled to party and party costs equivalent to that provided for in Schedule "C" for those parts of the proceeding where they were self-represented - The decision to award elevated costs was supported by the lawyer's failure to disclose relevant documents in his possession, his inadequate and misleading legal research, his mischaracterization of the plaintiffs' trial conduct, and his inappropriate splitting of the trial without valid reason to cause significant delay - The latter was "a serious abuse of court process, contrary to the Rules, and served no valid litigation purpose. This misconduct warrants a strong cost sanction because it wasted court resources, substantially delayed the [plaintiffs'] at-trial success ... and calls for a strong punitive response." - The plaintiffs were awarded full Schedule "C" costs for the portion of the trial that they were self-represented, full indemnification for the cost of the unbundled services of the law firm assisting them, $2,500 for the late disclosure, and a lump sum of $20,000 to respond to the delay caused by the lawyer's abuse of the court's process by inviting an inappropriate preliminary issue determination, his successful attempt to cause litigation by installment and as a consequence of the delay in resolving this trial - The plaintiffs were denied costs for replacement income - The court stated that "even represented litigants have to commit substantial time away from their employment for the litigation and they have never been entitled to replacement income" - The plaintiffs were also entitled to their disbursements - See paragraphs 1 to 152.

Practice - Topic 6986

Costs - Entitlement - Bars - Litigant acting on own behalf - The Alberta Court of Queen's Bench stated that: "Alberta courts have identified a number of factors that are relevant to whether 'appropriate circumstances' exists so that a self-represented litigant is entitled to either all or part of Schedule 'C' costs: 1. Was the proceeding complicated? ... 2. Was the work good quality? ... 3. Did the self-representation cause unnecessary delays? ... 4. Did the self-represented litigant require unreasonable amounts of party or court time? ... 5. Were there lost income opportunities? ... 6. Did the opposing party engage in frivolous or unnecessary conduct that took advantage of the fact the successful parties were self-represented? ... 7. Were there reasonable settlement offers? ... 8. Were the claims reasonable?" - See paragraph 25.

Practice - Topic 7050

Costs - Party and party costs - Entitlement to - Successful party not represented by counsel - [See both Practice - Topic 6986 ].

Practice - Topic 7109.1

Costs - Party and party costs - Special orders - Increased costs (based on solicitor and client or special costs) - The Alberta Court of Queen's Bench restated the criteria for an elevated costs award: "solicitor and clients costs are awarded where the conduct of a party has been 'reprehensible, scandalous or outrageous' ...; solicitor and client costs might suffice to satisfy the objectives of deterrence and punishment that would otherwise be served by a punitive damage award ...; misconduct during the litigation can surely be found if there is no reasonable basis on which to commence, or continue, litigation ...; a proceeding that was based on groundless allegations and was a type of conduct that should be discouraged ...; justice can only be done by a complete indemnification for costs ...; there is evidence that the plaintiff did something to hinder, delay or confuse the litigation, where there was no serious issue of fact or law which required these lengthy, expensive proceedings, where the positively misconducting party was 'contemptuous' of the aggrieved party in forcing that aggrieved party to exhaust legal proceedings to obtain that which was obviously his ...; an attempt to deceive the court and defeat justice, an attempt to delay, deceive and defeat justice ...; where the defendants were guilty of positive misconduct, where others should be deterred from like conduct and the defendants should be penalized beyond the ordinary order of costs ...; an attempt to delay or hinder proceedings, an attempt to deceive or defeat justice, fraud or untrue or scandalous charges ...; the positive misconduct of the party, giving rise to the action, is blatant and is calculated to deliberately harm the other party. Then despite the technically proper conduct of the legal proceedings, the very fact that the action must be brought by the injured party to gain what was rightfully his in the face of an unreasonable denial can give rise to an elevated costs award" - See paragraph 34.

Practice - Topic 7116

Costs - Party and party costs - Special orders - Gross or lump sum in addition to party and party costs - [See first Practice - Topic 6986 ].

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to - Improper, irresponsible or unconscionable conduct - [See Practice - Topic 7109.1 ].

Cases Noticed:

Polar Ice Express Inc. v. Arctic Glacier Inc. (2009), 446 A.R. 295; 442 W.A.C. 295; 2009 ABCA 20, refd to. [para. 4].

Kretschmer v. Terrigno (2012), 539 A.R. 212; 561 W.A.C. 212; 2012 ABCA 345, refd to. [para. 19].

Hogarth et al. v. Rocky Mountain Slate Inc. et al., [2013] A.R. Uned. 90; 87 Alta. L.R.(5th) 108; 2013 ABCA 116, refd to. [para. 24].

Dechant v. Law Society of Alberta (2001), 277 A.R. 333; 242 W.A.C. 333; 2001 ABCA 81, refd to. [para. 25].

L.L. v. G.R.B. (2009), 455 A.R. 388; 2009 ABQB 322, affd. (2009), 469 A.R. 33; 470 W.A.C. 33; 2009 ABCA 356, refd to. [para. 25].

Koopmans v. Joseph et al. (2014), 603 A.R. 23; 62 C.P.C.(7th) 182; 2014 ABQB 721, refd to. [para. 25].

Hymanyk v. Hymanyk, [2015] A.R. Uned. 157; 2015 ABQB 72, refd to. [para. 25].

Chutskoff Estate v. Bonora et al. (2014), 590 A.R. 288; 2014 ABQB 389, affd. (2014), 588 A.R. 303; 626 W.A.C. 303; 2014 ABCA 444, refd to. [para. 33].

Brown v. Silvera (2010), 488 A.R. 22; 2010 ABQB 224, refd to. [para. 34].

Walsh v. Mobil Oil Canada et al. (2008), 440 A.R. 199; 438 W.A.C. 199; 2008 ABCA 268, refd to. [para. 34].

Hamilton v. Open Window Bakery Ltd. et al. (2004), 316 N.R. 265; 184 O.A.C. 209; 2004 SCC 9, refd to. [para. 34].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; 108 D.L.R.(4th) 193, refd to. [para. 34].

Colborne Capital Corp. et al. v. 542775 Alberta Ltd. et al. (1995), 171 A.R. 241 (Q.B.), varied (1999), 228 A.R. 201; 188 W.A.C. 201; 1999 ABCA 14, refd to. [para. 34].

College of Physicians and Surgeons (Alta.) v. J.H. et al. (2009), 468 A.R. 101; 2009 ABQB 48, refd to. [para. 34].

Foulis v. Robinson (1978), 21 O.R.(2d) 769; 92 D.L.R.(3d) 134 (C.A.), refd to. [para. 34].

Max Sonnenberg Inc. v. Stewart, Smith (Can.) Ltd., [1987] 2 W.W.R. 75; 48 Alta. L.R.(2d) 367 (Q.B.), refd to. [para. 34].

Olson v. New Home Certification Program of Alberta (1986), 69 A.R. 356; 44 Alta. L.R. 207 (Q.B.), refd to. [para. 34].

Dusik v. Newton (1984), 51 B.C.L.R. 217; 24 A.C.W.S.(2d) 465 (S.C.), varied (1985), 62 B.C.L.R. 1; 31 A.C.W.S.(2d) 199 (C.A.), refd to. [para. 34].

Pharand Ski Corp. v. Alberta (1991), 122 A.R. 395 (Q.B.), refd to. [para. 34].

Pharand Ski Corp. v. Alberta (1991), 122 A.R. 81 (Q.B.), refd to. [para. 34].

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al. (1993), 138 A.R. 161; 8 Alta. L.R.(3d) 403 (Q.B.), affd. on costs (1994), 155 A.R. 42; 73 W.A.C. 42; 20 Alta. L.R.(3d) 117 (C.A.), refd to. [para. 34].

Grossman v. Toronto General Hospital (1983), 41 O.R.(2d) 457; 146 D.L.R.(3d) 280 (H.C.), refd to. [para. 47].

MColl-Frontenac Inc. v. Aerospace Realties (1986) Ltd., 2000 CarswellOnt 436 (H.C.), refd to. [para. 48].

3574423 Canada Inc. v. Baton Rouge Restaurants Inc. et al., [2012] O.T.C. Uned. 296; 2012 ONSC 296, refd to. [para. 48].

R. v. Terroco Industries Ltd. (2004), 348 A.R. 96; 321 W.A.C. 96; 2004 ABCA 159, refd to. [para. 53].

Adler Firestopping Ltd. et al. v. Rea et al. (2008), 441 A.R. 18; 2008 ABQB 95, refd to. [para. 53].

Baud Corp., N.V. v. Brook, [1979] 1 S.C.R. 633; 23 N.R. 181; 12 A.R. 271; 89 D.L.R.(3d) 1, refd to. [para. 55].

Asamera Oil Corp. v. Sea & Oil General Corp. - see Baud Corp., N.V. v. Brook.

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

De Yong v. Weeks (1984), 55 A.R. 305; 33 Alta. L.R.(2d) 338 (C.A.), leave to appeal denied (1985), 56 N.R. 240; 58 A.R. 38 (S.C.C.), refd to. [para. 61].

R. & L. Contracting Ltd. v. A and B et al. (1981), 28 B.C.L.R. 342 (C.A.), refd to. [para. 62].

Roberge v. Huberman et al. (1999), 121 B.C.A.C. 28; 198 W.A.C. 28; 172 D.L.R.(4th) 329; 1999 BCCA 196, refd to. [para. 64].

J.J. v. Board of School Trustees of School District No. 43 (Coquitlam) et al. (2011), 309 B.C.A.C. 83; 523 W.A.C. 83; 340 D.L.R.(4th) 27; 2011 BCCA 343, leave to appeal denied (2012), 432 N.R. 392; 321 B.C.A.C. 320; 547 W.A.C. 320 (S.C.C.), refd to. [para. 68].

Envision Edmonton Opportunities Society et al. v. Edmonton (City) (2011), 507 A.R. 275; 2011 ABQB 29, refd to. [para. 83].

Gallant v. Farries (2012), 522 A.R. 13; 544 W.A.C. 13; 348 D.L.R.(4th) 134; 2012 ABCA 98, refd to. [para. 83].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, refd to. [para. 84].

Mainwaring v. Alberta, [2000] A.R. Uned. 1; 75 Alta. L.R.(3d) 255 (C.A.), refd to. [para. 85].

Royal Bank of Canada v. LRSCO Investments Ltd. (1994), 149 A.R. 241; 63 W.A.C. 241; 18 Alta. L.R.(3d) 148; 1994 ABCA 116, refd to. [para. 85].

Paniccia Estate et al. v. Toal (2012), 539 A.R. 349; 561 W.A.C. 349; 2012 ABCA 397, refd to. [para. 85].

Esso Resources Canada Ltd. et al. v. Stearns Catalytic Ltd. et al. (1991), 114 A.R. 27; 77 D.L.R.(4th) 557 (C.A.), refd to. [para. 87].

L.K.D. et al. v. J.B. et al., [2012] A.R. Uned. 22; 2012 ABCA 72, leave to appeal denied (2012), 440 N.R. 391 (S.C.C.), refd to. [para. 109].

Myers v. Elman, [1939] 4 All E.R. 484 (H.L.), refd to. [para. 127].

Edwards v. Edwards, [1958] 2 All E.R. 179, refd to. [para. 127].

Nazmdeh v. Ursel et al. (2010), 285 B.C.A.C. 66; 482 W.A.C. 66; 317 D.L.R.(4th) 271; 2010 BCCA 131, refd to. [para. 127].

Robertson v. Edmonton Chief of Police et al. (2005), 385 A.R. 325; 2005 ABQB 499, refd to. [para. 128].

Young v. Young (1990), 75 D.L.R.(4th) 46; 50 B.C.L.R.(2d) 1 (C.A.), refd to. [para. 128].

Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113; 276 N.R. 339; 157 B.C.A.C. 161; 256 W.A.C. 161; 2001 SCC 67, refd to. [para. 134].

Fortin v. Barreau du Québec, [2001] 2 S.C.R. 500; 272 N.R. 359, refd to. [para. 134].

Fortin v. Chrétien - see Fortin v. Barreau du Québec.

R. v. St-Cloud (J.) (2015), 471 N.R. 256; 2015 SCC 27, refd to. [para. 138].

R. v. Rahey, [1987] 1 S.C.R. 588; 75 N.R. 81; 78 N.S.R.(2d) 183; 193 A.P.R. 183; 39 D.L.R.(4th) 481, refd to. [para. 138].

Statutes Noticed:

Rules of Court (Alta.), rule 10.31(5) [para. 23]; rule 10.33(2) [para. 32].

Counsel:

The Maltons were self-represented;

Vaughn Cox and Dimitrios Chronopoulos (Chatwin LLP), for the defendants.

This matter was heard on April 27, 2015, before Moen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on July 3, 2015.