IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121206

Docket: S128649

Registry:
New Westminster

Between:

David Pearlman

Plaintiff

And

Vince Critchley,
G. Hocoluk, Quinlan Abrioux,

The Insurance Corporation
of British Columbia (ICBC),

Atlantic Trading
Company Ltd. and Rebecca Lee Spence,

Dr. Mal
(Malcolm) Cofman, Dr. Burton Goldstein,

Scott Stephens,
Owen Bird Law Corporation,

American Commerce
Insurance Company

Defendants

Before:
The Honourable Mr. Justice Crawford

Reasons for Judgment

Introduction

[1]            
The defendants Mr. Critchley, Ms. Hocoluk, Quinlan Abrioux,
ICBC, Atlantic Trading Company Ltd. and Ms. Spence seek to have Mr. Pearlman’s
action dismissed. The applicants assert the plaintiff’s claims are frivolous,
vexatious and an abuse of the process of the court.

[2]            
The origins of this action lie in a car accident that occurred on
November 25, 2004, and led to Mr. Pearlman making a claim for injury and
damages against the other driver, Ms. Spence, and the rental car owner,
Atlantic Trading Company Ltd.

[3]            
The trial of the tort claim before Mr. Justice Rice and jury began
on September 15, 2008. On September 17, 2008, the jury dismissed all of Mr. Pearlman’s
claims, which in essence alleged soft tissue and dental injuries. The jury
held Mr. Pearlman was not injured in the car accident.

[4]            
Mr. Pearlman began an appeal from that decision in 2008 in the BC
Court of Appeal. The appeal stands as abandoned.

[5]            
Mr. Pearlman began this claim on June 25, 2010, in essence alleging
Mr. Critchley, as counsel for the defendants in the tort action, had in
various ways sabotaged his tort claim. I use the term sabotaged but the various
claims are better set out in para. 19 below.

[6]            
Mr. Pearlman told me during the hearing that he had been a lawyer
in Manitoba.

[7]            
The defendant Quinlan Abrioux is a law firm which was retained by the
defendant ICBC to act on behalf of the insured defendants Ms. Spence and
the Atlantic Trading Company Ltd. Mr. Critchley is a lawyer at Quinlan
Abrioux and Ms. Hocoluk was formerly a paralegal employed by Quinlan
Abrioux.

[8]            
I note that Mr. Pearlman has also made various other accident
related claims in the Supreme Court. He sued his own insurance company at the
time of the accident, American Commerce Insurance Company (“ACIC”), and its
employees. Parts of that action were dismissed by Mr. Justice Meiklem in Pearlman
v. American Commerce Insurance Company, 2008 BCSC 1091, and the balance of
the claim was dismissed by the BC Court of Appeal: 2009 BCCA 78.

[9]            
Mr. Pearlman sued ICBC and the adjuster involved in the obtaining
of a medical report from his family doctor, Dr. Lubin. Mr. Pearlman
also brought another action against Dr. Lubin with respect to the production
of the medical report. Those actions were dismissed.

[10]        
In turn, Mr. Pearlman has taken appeals on these decisions to the Court
of Appeal.

[11]        
In Pearlman v. Insurance Corporation of British Columbia, 2010
BCCA 362, Mr. Justice Low found Mr. Pearlman to be a vexatious
litigant and made an order that Mr. Pearlman could not bring an appeal
from any final order made in the Supreme Court brought against any person and arising
out of, or directly or indirectly connected to, the motor vehicle accident of
November 25, 2004, without first obtaining leave of a justice of the Court of
Appeal.

[12]        
Previous decisions have already been rendered with respect to other
defendants in this action.

[13]        
Mr. Pearlman brought an action against Dr. Cofman, his former
dentist, and Dr. Goldstein, who provided an expert witness report in the
tort action. Mr. Justice Schultes dismissed the claims against those defendants
on a summary trial: Pearlman v. Critchley, 2011 BCSC 1479. Schultes J. found
Mr. Pearlman failed to prove Dr. Cofman committed any actionable
wrong in relation to him, while Dr. Goldstein enjoyed witness immunity.

[14]        
In Pearlman v. Critchley, 2012 BCSC 170, the defendants Scott
Stephens, Owen Bird and ACIC were granted summary judgment. Madam Justice
Gropper struck the Writ of Summons and Statement of Claim pursuant to
Rules 9‑5 and 9‑6 of the Rules of Court.

[15]        
Madam Justice Gropper noted, at para. 11, Mr. Pearlman’s action
against those defendants arose from his claim for the injuries he allegedly
suffered in the November 2004 motor vehicle accident. Gropper J. pointed out
that the whole of Mr. Pearlman’s claims were based on the premise that he
had suffered injuries in the November 2004 accident, but a jury had determined
he did not suffer injuries in that accident. Accordingly the applicant
defendants could not have caused Mr. Pearlman to not receive damages from
the November 2004 car accident.

[16]        
As well, Gropper J. found the pleadings were not bona fides, were
oppressive and designed to cause the defendants anxiety, trouble and expense,
and therefore were brought for an improper purpose. Gropper J. also considered
the nature of the claims against Mr. Stephens, the lawyer acting on behalf
of ACIC, finding there was no basis for the claims given that: Mr. Pearlman’s
action against ACIC had been dismissed; fraud allegations could not be
substantiated; and Mr. Pearlman’s privacy could not be breached when he brought
a lawsuit which put his issues into a court process which is an exception to a
statutory claim for privacy. Mr. Pearlman’s claims were dismissed.

The Application

[17]        
The applicants seek to have this action dismissed pursuant to Rules 9-5
and 9-6 of the Rules of Court.

[18]        
Mr. Brindle, counsel for the applicants in these proceedings, notes
the claims of Mr. Pearlman are difficult to discern within a lengthy,
meandering and argumentative Statement of Claim.

[19]        
Mr. Brindle describes Mr. Pearlman’s claims as follows:

1.       Mr. Critchley
and Ms. Hocoluk committed deceit, tampered with evidence, fraudulently
concealed evidence and committed obstruction of justice in relation to Dr. Goldstein’s
report dated July 15, 2008;

2.       Mr. Critchley
violated Mr. Pearlman’s privacy rights in obtaining the Goldstein report;

3.       Mr. Critchley
made deceitful comments and fraudulent representations to the Court at a
pre-trial conference while the plaintiff was not in attendance;

4.       Mr. Critchley
made fraudulent representations to the presiding judge at the trial of the
initial tort action;

5.       Mr. Critchley
tendered a fraudulent bill of costs with respect to Dr. Goldstein’s
account regarding the taxation of costs after the initial tort action;

6.       Mr. Critchley
committed fraud by failing to list an accident statement the defendant Ms. Spence
provided to ICBC;

7.       Ms. Spence
committed perjury at the tort trial;

8.       Quinlan
Abrioux, Mr. Critchley and Ms. Hocoluk were employees, servants and
agents of ICBC, Atlantic Trading Company Ltd. and Ms. Spence, and as such
ICBC and the insured defendants are vicariously liable for the torts alleged to
have been committed by Mr. Critchley, Ms. Hocoluk and Quinlan Abrioux.

[20]        
In his response, Mr. Pearlman opposed all relief sought by the
applicants, arguing the Court had no jurisdiction, the application was a nullity,
an abuse of authority, made in malice, and vexatious.

Background

[21]        
As noted, Mr. Pearlman claimed he suffered soft tissue and dental
injuries in the motor vehicle accident of November 25, 2004.

[22]        
Mr. Pearlman commenced a tort claim against Ms. Spence, the
other driver involved in the accident.

[23]        
He also made a claim against his own insurance company for failure to
act in good faith or adequately indemnify him for alleged dental expenses.

[24]        
It appears Mr. Pearlman had decades of previous dental issues and
produced reports from two dentists, Dr. Dahl and Dr. Wade, that he
wished to tender in evidence at the tort trial. Mr. Pearlman asked Mr. Critchley
to allow the reports to be tendered at trial without calling the doctors for
cross-examination, but Mr. Critchley, as is his right, insisted the authors
be required to attend trial.

[25]        
The tort action was due to commence before judge and jury on
September 15, 2008.

[26]        
Mr. Critchley requested Mr. Pearlman’s pre-accident dental
records but Mr. Pearlman did not list or produce them. However, Mr. Pearlman
had commenced a separate action against his own insurer, ACIC, and in that
action an affidavit had been filed containing an expert report written by Dr. Goldstein
dated July 15, 2008. That report contained a review of Mr. Pearlman’s
pre-accident dental records.

[27]        
In discussion with ACIC’s counsel, Mr. Critchley learned of the
Goldstein report and obtained a copy of it on September 11, 2008. ACIC had
already sought to dismiss Mr. Pearlman’s claim against them at a hearing
held on August 5 and 6, 2008. Mr. Critchley forthwith sought a pre-trial
conference to be held on Friday, September 12, 2008, as he intended to complain
of the lack of document production by Mr. Pearlman and request the trial
be adjourned. Mr. Critchley couriered a letter on September 11, 2008 to Mr. Pearlman
advising him he was scheduling the pre-trial conference.

[28]        
On September 12, 2008, Mr. Critchley couriered a letter to Mr. Pearlman
advising him the defendants in the tort action would rely on the Goldstein
report at trial. He did not provide a copy of the report to Mr. Pearlman
as he had a reasonable expectation Mr. Pearlman already had it because it
had been filed by ACIC in or prior to the August 5, 2008 hearing.

[29]        
Mr. Critchley attended at the New Westminster courthouse on the
morning of September 12, 2008, but Mr. Pearlman did not attend. Mr. Justice
Brine presided over the pre-trial conference. Mr. Critchley made some comments
as to the reason he would be seeking an adjournment of the trial. Brine J. adjourned
the matter over to 2:00 p.m. to see if Mr. Pearlman would attend.

[30]        
Mr. Pearlman attended the pre-trial conference at 2:00 p.m.

[31]        
Mr. Critchley advised the Court that the plaintiff had not provided
any pre-accident dental records, he had now obtained the Goldstein report, that
it was integral to the defence, and Dr. Goldstein would only be available
for trial on the Monday morning.

[32]        
The Goldstein report relied on Mr. Pearlman’s dental records from
dentists as far-flung as Tennessee, Washington, California and Nevada, and
other parts of BC. Unless Mr. Pearlman admitted the truth of those
records, the facts basic to the Goldstein report could not have been
established without an adjournment.

[33]        
Mr. Pearlman conceded he had the Goldstein report and that he could
not call his two experts who had provided opinions, nor could he call Dr. Cofman
because he was too “elderly”.

[34]        
Mr. Justice Brine said he would adjourn the trial: see transcript
p. 42, ll. 1-7. But Mr. Pearlman beseeched the Court that the trial proceed:
see transcript p. 49, ll. 1-20. Mr. Pearlman made various
concessions to allow the trial to proceed, namely:

1.       Dr. Goldstein’s
report would be admitted into evidence without cross-examination;

2.       The
pre-accident dental records reviewed in Dr. Goldstein’s report were
admitted as business records;

3.       Mr. Pearlman
would not introduce the reports of Drs. Wade, Dahl or Cofman;

4.       The
defendants were at liberty to introduce supplemental reports but solely as
commentary on the Goldstein report and the records referenced therein.

[35]        
The tort trial proceeded September 15, 2008, before a jury and Mr. Justice Rice.

[36]        
Mr. Critchley advised the Court of the order made by Mr. Justice
Brine and provided a memorandum to the Court which was not objected to by Mr. Pearlman.

[37]        
Accordingly, the Goldstein report and the pre-accident dental records
were introduced at trial as Exhibit 17. Mr. Critchley indexed Exhibit 17
to explain the organization of the report and the pre-accident dental records.

[38]        
The records of Dr. Dahl and Dr. Wade were not put in evidence.

[39]        
Dr. Levinson appeared as a witness for Mr. Pearlman and gave
his evidence of post-accident findings, but his opinion was ruled inadmissible
by the trial judge.

[40]        
On September 17, 2008, the jury found Mr. Pearlman was not injured
as a result of the car accident and Mr. Justice Rice dismissed the action
with costs to the defendants at Scale B.

[41]        
Subsequently Mr. Critchley taxed the defendants’ claim for costs before
the Court Registrar.

Discussion

[42]        
The applicants rely on Rule 9-5(1) and Rule 9-6(5) in this application,
which read:

9-5(1)  At any stage of a proceeding, the court may order to
be struck out or amended the whole or any part of a pleading, petition or other
document on the ground that

(a) it discloses no reasonable
claim or defence, as the case may be,

(b) it is unnecessary, scandalous,
frivolous or vexatious,

(c) it may prejudice, embarrass or
delay the fair trial or hearing of the proceeding, or

(d) it is otherwise an abuse of the
process of the court,

and the court may pronounce judgment or order the proceeding
to be stayed or dismissed and may order the costs of the application to be paid
as special costs.

…

9-6(5)  On hearing an
application under subrule (2) or (4), the court,

(a) if
satisfied that there is no genuine issue for trial with respect to a claim or
defence, must pronounce judgment or dismiss the claim accordingly,

(b) if satisfied that the only
genuine issue is the amount to which the claiming party is entitled, may order
a trial of that issue or pronounce judgment with a reference or an accounting
to determine the amount,

(c) if satisfied that the only
genuine issue is a question of law, may determine the question and pronounce
judgment accordingly, and

(d) may make any other order it considers will further the
object of these Supreme Court Civil Rules.

1.       The Dr. Goldstein report

[43]        
Mr. Pearlman’s Statement of Claim alleges in various paragraphs
that Mr. Critchley acted deceitfully, tampered with the Goldstein report,
fraudulently concealed evidence, and obstructed justice by adding an index to
the report and removing attached documents.

[44]        
I start with the settled law that Mr. Critchley, acting for an opposing
party, owed no duty to Mr. Pearlman. No tort action could lie against him.
As well, all communications made by a lawyer in the course of, or incidental
to, judicial proceedings are protected by actual privilege: Lawrence v.
Sandilands, 2003 BCSC 211.

[45]        
I am satisfied on the evidence that Mr. Critchley received the
Goldstein report before the trial, that it was a document that Mr. Pearlman
already had, and like his own dental records was not something he was divulging.

[46]        
As to Dr. Goldstein’s attendance, Mr. Justice Brine ordered Dr. Goldstein
need not attend at trial for cross-examination and that his report would be
admitted without objection.

[47]        
The reason for the index to the Goldstein report was sensible given the
number of clinical records attached as “business records”, and the exclusion of
the reports of Dr. Dahl and Dr. Wade meant their clinical records
were not included.

[48]        
I find Mr. Pearlman’s claims in this regard are bound to fail in
law, and furthermore are frivolous and vexatious.

2.       Breach of privacy

[49]        
The alleged breach of Mr. Pearlman’s privacy rights by Mr. Critchley
obtaining the Goldstein report is bound to fail and is also frivolous and
vexatious.

[50]        
As noted by Madam Justice Gropper in Pearlman v. Critchley, 2012
BCSC 170, there is a statutory right to privacy, to which there is an exception
relating to court proceedings: Section 2(2)(c) of the Privacy Act, R.S.B.C.
1996, c. 373.

[51]        
By putting his dental injuries as part of his claim in the various court
proceedings, Mr. Pearlman waived any right to privacy relevant to his
dental records and alleged dental injuries.

3.       Comments made at
pre-trial conference

[52]        
Mr. Pearlman avers that Mr. Critchley misled and lied to the Court
at the pre-trial conference when Mr. Pearlman was not in attendance. Mr. Critchley
spoke to the Court in the morning in the absence of Mr. Pearlman as to the
reason he was seeking an adjournment of the trial that was to start on the
Monday. He explained he had just received the Goldstein report which contained Mr. Pearlman’s
dental records which would ordinarily require 60 days’ notice under the Rules
at that time.

[53]        
Mr. Critchley did cast one personal comment. He said that a court
in another province had said that Mr. Pearlman was not honest.

[54]        
In response, the defendants argue the statements made by a lawyer in the
course of representing a client are protected by the doctrine of absolute
privilege and no civil claim may lie against the lawyer for the statement made
in court: Holland v. Douglas, 2010 BCSC 96 at paras. 57-64; affirmed
in Holland v. Douglas, 2010 BCCA 345.

[55]        
The defendants submit all communications made by a lawyer in the course
of, or incidental to, the process and in furtherance of judicial proceedings
are protected by absolute privilege: Lawrence, supra.

[56]        
Comments denigrating a party should not be made ex parte, simply
as a matter of ethics. But the context was already clear to the learned trial
judge who made no comment and simply adjourned the matter over to 2:00 p.m. so Mr. Pearlman
could be in attendance. The comments did not affect the subsequent resolution
of matters, and Mr. Pearlman’s desire that the trial proceed on the following
Monday was accommodated on his terms. I find no basis for any claim against Mr. Critchley
and further that such a claim is frivolous and vexatious.

4.       Fraudulent
representations at the initial tort action

[57]        
The basis of this allegation is said to be misrepresentations of the
orders made by Mr. Justice Brine at the pre-trial conference; namely that Dr. Goldstein
did not need to attend trial, did not need to be cross-examined, and the Goldstein
report could be filed without contest or objection.

[58]        
I quote the words of Brine J. at p. 52 of the transcript,
ll. 4-22:

THE COURT:  So Dr. Goldstein’s report of July 15^th,
2008, will be admitted into the trial on behalf of the defendants. It will be
admitted into evidence without the need for cross-examination by the plaintiff.
Two, the pre-accident dental records that have been referenced in Dr. Goldstein’s
report will be admitted as business records into the trial. Three, Mr. Pearlman
will not seek to admit during the course of the trial any reports or opinions
of doctors Doll [Dahl], Wade or Staufman [Cofman] into evidence, and, four,
Drs. Bridger and Bishop will be permitted to admit into evidence additional
reports and opinions without contest provided that they are limited to comments
arising from Dr. Goldstein’s report and the records referenced therein.

MR. PEARLMAN:  The trial goes on?

THE COURT:  On that basis.

MR. PEARLMAN:  Fine.

[59]        
As seen from the transcript of Mr. Justice Brine’s orders, Mr. Pearlman
is entirely wrong and there is no misrepresentation as alleged or at all.

[60]        
I find no basis for the claim and find it frivolous and vexatious.

5.       Fraudulent bill of
costs

[61]        
Mr. Pearlman alleges Mr. Critchley provided a false claim with
respect to a bill of $1,500 presented by Dr. Goldstein for the short
notice cancellation of his attendance in court on September 15, 2008.

[62]        
If there was to be an attack on Dr. Goldstein’s bill it was to be
made before the Registrar. The Registrar’s hearing took place on February 17,
2009, and the costs of the defendants were set at $33,741.21. I assume that Mr. Pearlman
contested the bills presented and they were allowed by the Registrar. I note
that in so doing, Mr. Critchley obtained costs of reports from experts
that were not tendered at trial, but the Registrar found those necessary for
trial preparation. As well, the assessment of costs was appealed by Mr. Pearlman
to the Supreme Court. Madam Justice Gropper dismissed that appeal. In turn,
that decision was appealed to the Court of Appeal but was dismissed for the
failure of Mr. Pearlman to post security. I see no basis for Mr. Pearlman’s
claim and find it frivolous and vexatious.

6.       Failure to list
accident statement made by Ms. Spence

[63]        
Mr. Pearlman alleges fraud by Mr. Critchley and the defendant Ms. Spence
for failure to list a statement allegedly provided by Ms. Spence to ICBC
in her list of documents. Mr. Pearlman also alleges that Ms. Spence
did not report the accident to the police.

[64]        
Interestingly the document Mr. Pearlman refers to is one that may
have been privileged as given in anticipation of litigation. Mr. Pearlman
does not say when or how he received the “Low Velocity Impact Questionnaire”
that Ms. Spence completed. He does acknowledge it recites some of the
evidence she gave at trial. Ms. Spence noted she had her 16-year-old
brother and 12-year-old sister with her, that her purse was unmoved, that the
other driver said “he got a jolt, he said he was ok”, the other vehicle did not
move, there was no discussion about calling the police and no emergency vehicle
attended: see Exhibit C to Mr. Pearlman’s affidavit sworn June 30, 2011.

[65]        
This allegation of fraud for failure to disclose an alleged document fails
because of the absolute privilege enjoyed by counsel. I find no basis for the
pleading and also find the claim is frivolous and vexatious.

7.       Perjury by Ms. Spence

[66]        
Mr. Pearlman claims Ms. Spence committed perjury at the trial
of the tort action.

[67]        
As counsel note, there is no tort of perjury. The law grants immunity
from civil action to witnesses: see British Columbia (Milk Marketing Board)
v. Bari Cheese Ltd., 1992 CanLII 1781 (B.C.S.C.); Carnahan v. Coates (1990),
47 B.C.L.R. (2d) 127, 71 D.L.R. (4^th) 464; McDaniel v. McDaniel,
2009 BCCA 53.

[68]        
Perjury as such is potentially a criminal charge.

[69]        
Accordingly, I find there is no reasonable cause of action disclosed
against Ms. Spence and the pleading is frivolous and vexatious.

8.       Vicarious liability

[70]        
Mr. Pearlman alleges that Quinlan Abrioux, Mr. Critchley and Ms. Hocoluk
were employees, servants and agents of ICBC, Atlantic Trading Company Ltd. and Ms. Spence,
and thus ICBC and the insured defendants are vicariously liable for the torts
alleged to have been committed by Mr. Critchley, Ms. Hocoluk and
Quinlan Abrioux.

[71]        
For Mr. Pearlman to succeed on this aspect of his claim, he must first
obtain a ruling that the employees, servants or agents are at fault. I have
found no basis for any claim either in the pleadings as a matter of law, or on
such evidence as I have considered. There is no vicarious liability and those
claims in turn are dismissed as being without foundation in disclosing any
reasonable cause of action. As well, I find Mr. Pearlman’s claims are
frivolous and vexatious.

Conclusion

[72]        
I dismiss all the allegations made by Mr. Pearlman. In sum, I find
the overall content of the claims are an abuse of the process of the court. Accordingly,
I order his claim to be struck out in its entirety as either disclosing no
reasonable claim or alternatively being frivolous and vexatious.

[73]        
As Mr. Justice Low noted in Pearlman, supra, at para. 18:
“… although its wording is rambling, it appears to me that the statement of claim
repeats much of what has already been litigated.”

[74]        
Mr. Pearlman has turned his attention to the opposing lawyer, Mr. Critchley.

[75]        
When considered as a whole, it is entirely a vindictive attack on an
adversary. Mr. Pearlman claims a legal training which I find he has badly
abused. His efforts have clogged many days of this Court and the Court of Appeal’s
time.

[76]        
I agree with the submission that the claims represent no more than a
collateral attack on Mr. Critchley, based on his successful defence of the
tort claim arising from Mr. Pearlman’s car accident of November 25, 2004.

Costs

[77]        
The parties Mr. Critchley, Ms. Hocoluk, Quinlan Abrioux, ICBC,
Atlantic Trading Company Ltd. and Ms. Spence are entitled to their
costs, effectively for one party.

[78]        
I note that in Pearlman v. Critchley, 2012 BCSC 170, the Court
ordered special costs.

[79]        
I have no submission before me as to costs on this application. If
counsel wish to speak to costs, they are to advise the Manager of Supreme Court
Scheduling within 21 days of the release of these Reasons. Otherwise the
successful defendants in this application are entitled to their costs on a
party party basis at Scale B.

“The
Honourable Mr. Justice Crawford”