Young v. Borzoni,

• Jurisdiction: British Columbia
• Judge: Thackray, Lowry and Chiasson, JJ.A.
• Neutral Citation: 2007 BCCA 16
• Citation: (2007), 235 B.C.A.C. 220 (CA),2007 BCCA 16,277 DLR (4th) 685,64 BCLR (4th) 157,235 BCAC 220,[2007] BCJ No 105 (QL),235 B.C.A.C. 220,(2007), 235 BCAC 220 (CA),[2007] B.C.J. No 105 (QL),277 D.L.R. (4th) 685
• Date: 05 December 2006
• Court: Court of Appeal (British Columbia)

Young v. Borzoni (2007), 235 B.C.A.C. 220 (CA);

    388 W.A.C. 220

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. JA.044

Marlene Young and Eric Young (appellants/plaintiffs) v. Anthony R. Borzoni, The Capital Regional District, The Region Housing Corporation, Amy Jaarsma, Kate Joy, David Weeks, The Corporation of the District of Saanich, The Saanich Police Department, Chief Constable Derek Egan, Constable Philip Richmond, Constable Paul Luhowy, Constable S. Edwards (nee Taylor), and Constable Trevor Dyck (respondents/defendants)

(CA32841; 2007 BCCA 16)

Indexed As: Young v. Borzoni et al.

British Columbia Court of Appeal

Thackray, Lowry and Chiasson, JJ.A.

January 23, 2007.

Summary:

The Youngs sued a lawyer and others, asserting, inter alia, that the defendant lawyer (Borzoni) owed them a duty of care as "non-client third persons". Borzoni had acted for the other defendants in prior litigation involving the Youngs. Borzoni moved to have the action against him dismissed.

The British Columbia Supreme Court allowed the motion. The Youngs appealed.

The British Columbia Court of Appeal dismissed the appeal.

Barristers and Solicitors - Topic 4441

Relations with third parties (incl. opposite parties) - Duty to third or opposite parties - General - The Youngs sued a lawyer and others asserting, inter alia, that the defendant lawyer (Borzoni) owed them a duty of care as "non-client third persons" - Borzoni had acted for the other defendants in prior litigation involving the Youngs - Borzoni moved to have the action against him dismissed - In allowing the motion, the motions judge rejected the assertion that the statement of claim disclosed the material facts required to complete a cause of action against Borzoni for breach of duty of care, stating that the only party to whom a lawyer owed an actionable duty was to his or her client - The Youngs appealed - The British Columbia Court of Appeal dismissed an appeal - While it was possible for a lawyer to owe a duty of care to a third party, the pleadings failed to present any material fact that supported either that Borzoni had a duty of care towards the Youngs or, if he did have such a duty, that he was in breach thereof - See paragraphs 46 to 53.

Practice - Topic 1459

Pleadings - Statement of claim - General - Allegations - Truthfulness of - The Youngs sued a lawyer and others asserting, inter alia, that the defendant lawyer (Borzoni) owed them a duty of care as "non-client third persons" - Borzoni had acted for the other defendants in prior litigation involving the Youngs - Borzoni moved to have the action against him dismissed - In allowing the motion, the motions judge rejected the assertion that the statement of claim disclosed the material facts required to complete a cause of action against Borzoni for intentional infliction of nervous shock - The British Columbia Court of Appeal dismissed an appeal - Several paragraphs in the statement of claim alleged intolerance, deceit, harassment, intimidation, writing malicious letters, falsifying documents and, in general, disrupting the Youngs' lives - Most of these broad and sweeping allegations would not, even if true, ground the tort - However, particularly in that they were directed at all the defendants, including a police department, a Regional District, corporations and individuals, the allegations could only be viewed as wild speculation - In these circumstances, the allegations did not have to be taken as true - Even if the facts were taken as pleaded to be true, they did not support the proposition that Borzoni's actions caused the alleged injuries - The emotional states pleaded (emotional stress, mental anguish and despair) were not generally accepted as amounting to "visible and probable illness" for the purposes of the tort - See paragraphs 23 to 45.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Practice - Topic 1459 ].

Practice - Topic 2230.3

Pleadings - Striking out pleadings - Grounds - Failure to plead material facts - [See Barristers and Solicitors - Topic 4441 ].

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - The Youngs sued a lawyer and others asserting, inter alia, that the defendant lawyer (Borzoni) owed them a duty of care as "non-client third persons" - Borzoni had acted for the other defendants in prior litigation involving the Youngs - Borzoni moved to have the action against him dismissed - The motions judge allowed the motion holding, inter alia, that the action was unnecessary, scandalous, vexatious and frivolous because the facts and issues underlying the claim against Borzoni had been previously determined in other proceedings arising out of the same set of facts - The motions judge also held that the claim was an abuse of the court's process and that the Youngs were "using the court system as a plaything to harass others they do not like" - The British Columbia Court of Appeal affirmed the findings - The court awarded Borzoni special costs - While the Youngs' frivolous and vexatious litigiousness might not amount to scandalous or outrageous conduct, it was reprehensible misconduct deserving of reproof or rebuke - See paragraphs 54 to 68.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - [See Practice - Topic 2231 ].

Practice - Topic 8327.2

Costs - Appeals - Costs of appeal - Solicitor and client costs - [See Practice - Topic 2231 ].

Torts - Topic 8710

Duty of care - Particular relationships - Claims for nervous shock and emotional suffering - Intentional infliction of - [See Practice - Topic 1459 ].

Cases Noticed:

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201, refd to. [para. 19].

Delaney & Friends Cartoon Productions Ltd. et al. v. Radical Entertainment Inc. et al., [2005] B.C.T.C. Uned. 187; 2005 BCSC 371, refd to. [para. 20].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 23].

Prinzo v. Baycrest Centre for Geriatric Care (2002), 161 O.A.C. 302; 60 O.R.(3d) 474 (C.A.), refd to. [para. 24].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 25].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Minnes v. Minnes (1962), 39 W.W.R.(N.S.) 112 (B.C.C.A.), refd to. [para. 25].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 26].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 26].

Rogers v. Bank of Montreal (1985), 64 B.C.L.R. 63 (S.C.), affd. (1986), 9 B.C.L.R.(2d) 190 (C.A.), refd to. [paras. 28, 29].

Clark v. Canada, [1994] 3 F.C. 323; 76 F.T.R. 241 (T.D.), refd to. [para. 35].

Guay v. Sun Publishing Co., [1953] 2 S.C.R. 216, refd to. [para. 36].

Mustapha v. Culligan of Canada Ltd. (2006), 218 O.A.C. 271 (C.A.), refd to. [para. 37].

Topgro Greenhouses Ltd. et al. v. Houweling (2006), 225 B.C.A.C. 17; 371 W.A.C. 17; 2006 BCCA 183, refd to. [para. 38].

Devji v. Burnaby (District) et al. (1999), 129 B.C.A.C. 161; 210 W.A.C. 161; 1999 BCCA 599, refd to. [para. 38].

Kalaman v. Singer Valve Co. et al. (1997), 93 B.C.A.C. 93; 151 W.A.C. 93 (C.A.), refd to. [para. 38].

Lawrence et al. v. Baynham et al., [2003] B.C.T.C. 211; 2003 BCSC 211, refd to. [para. 50].

Lawrence v. Sandilands - see Lawrence et al. v. Baynham et al.

Garrant v. Moskal (1984), 40 Sask.R. 162 (Q.B.), affd. (1985), 40 Sask.R. 155 (C.A.), refd to. [para. 50].

Garrant v. Cawood - see Garrant v. Moskal.

Haig v. Bamford et al., [1977] 1 S.C.R. 466; 9 N.R. 43, refd to. [para. 50].

Crooks et al. v. Manolescu et al., [1995] B.C.T.C. Uned. 43 (S.C. Master), refd to. [para. 51].

Young v. Saanich Police Department et al. (2004), 200 B.C.A.C. 161; 327 W.A.C. 161; 2004 BCCA 224, refd to. [para. 60].

Garcia v. Crestbrook Forest Industries Ltd. (No. 2) (1994), 45 B.C.A.C. 222; 72 W.A.C. 222 (C.A.), refd to. [para. 68].

Authors and Works Noticed:

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, DSM-IV, generally [para. 37].

Pollock, Law of Torts (15th Ed. 1951), p. 37 [para. 36].

Counsel:

Eric Young, in person for the appellants;

P.C. Freeman, Q.C., for the respondents.

This appeal was heard on December 5, 2006, at Victoria, B.C., by Thackray, Lowry and Chiasson, JJ.A., of the British Columbia Court of Appeal. Thackray, J.A., delivered the following reasons for judgment at Vancouver, B.C., on January 23, 2007.