IN THE SUPREME COURT OF BRITISH
COLUMBIA

Date: 20140402

Docket: 1342791

Registry:
Prince George

Between:

Nathan Foote and
Elly Foote
Raya Leith, Naomi Davidsen, Conchita Foote

Plaintiffs

And

Manjot S. Hallen
Mark Lyons, Partner, Klein Lyons LLP
David Klein, Partner, Klein Lyons LLP

Klein Lyons LLP

Defendants

Before:
The Honourable Mr. Justice R. S.Tindale

Reasons for Judgment
In Chambers

[1]            
The defendants apply for an order pursuant to Rule 9-5 (1) of the Supreme
Court Civil Rules that the plaintiffs’ claim be struck as disclosing no
reasonable cause of action. The defendants’ basis for this application is that
the impugned actions were taken in the course of judicial proceedings and on an
occasion of absolute privilege.

[2]            
The plaintiffs are opposed to this application. They are self
represented in this proceeding.

BACKGROUND

[3]            
The defendants are the lawyers for Miranda Lorraine Knight in a personal
injury action commenced by Ms. Knight in the Supreme Court of British Columbia
out of the Vancouver Registry ("the Knight action"). The plaintiffs
in this action are the defendants in the Knight action.

[4]            
The Knight action is still before the courts.

[5]            
The plaintiffs filed their Notice of Civil Claim in this action on April
15, 2013. They seek damages against the defendants for claims in negligence,
abuse of process and what appears to be a claim for defamation.

[6]            
The defendants filed their Response to Civil Claim on May 8, 2013.

POSITION OF THE PARTIES

[7]            
The defendants argue that all of the actions complained of by the
plaintiffs were taken in the pursuit of the Knight action. They argue that all
of these actions were done on an occasion of absolute privilege.

[8]            
The defendants argue that the only material fact pled in the Notice of
Civil Claim is at paragraph 6 of that document which reads as follows:

The Defendants acted negligently or maliciously in making a
claim for permanent physical disability, concealing that in April 2008, Miranda
Lorraine Knight was not disabled when she finished in the top forty per cent of
her age category: Females 16-18 in the 10 km Vancouver Run in a time of 1 hour,
15 minutes and 58 seconds.

[9]            
The defendants argue that the other statement of facts pled in the
Notice of Civil Claim are conclusions of law and not sufficient to support the
claims made by the plaintiffs. The defendants also argue that they do not owe a
duty of care to the plaintiffs.

[10]        
The defendants’ main argument however is that all of the actions taken
in the Knight action are on occasion of absolute privilege and therefore the
entire Notice of Civil Claim must be struck.

[11]        
The defendants argue that the plaintiffs’ action is a collateral attack
on the Knight action. They argue that the plaintiffs’ proper course if
successful in the Knight action would be to seek costs against Ms. Knight, her
lawyers or to seek remedies from the Law Society of British Columbia.

[12]        
The plaintiffs argue that there is no basis for the Knight action. The
plaintiffs point to the fact that the Knight action was not commence until five
years after the accident occurred. They also note that no accident report or
report to the Insurance Corporation of British Columbia was made. I will note
that Ms. Knight was a minor at the time of her accident.

[13]        
The plaintiffs argue that the doctrine of absolute privilege as a shield
for lawyers is frightening. They further argue that the defendants owe a duty
of care to the general public not to bring frivolous actions. They point to the
fact that they are members of the general public.

[14]        
The plaintiffs view is that the defendants are the adults whereas Ms.
Knight is a young lady therefore the defendants are responsible for the actions
taken in the Knight action.

[15]        
The plaintiffs argue that a basic premise is that lawyers must act
ethically and not be "gossip mongers". The plaintiffs argue that how
lawyers conduct themselves in litigation is an important point and if need be
they should be given the opportunity to amend their pleadings.

DECISION

[16]        
Supreme Court Civil Rule 9-5 (1) (a), (b) and (d) reads as
follows:

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.

. . .

d)       it is otherwise an abuse of the process of the
court.

[17]        
The Supreme Court of Canada considered the test for striking out a
pleading in the decision of Hunt v. Carey Canada Inc., [1990] 2 S.C.R.
959. The court, at p. 15,  stated the following regarding Rule 19 (24) of the British
Columbia Rules of Court (now Rule 9 – 5):

Thus, the test in Canada
governing the application of provisions like Rule 19 (24) (a) of the British
Columbia Rules of Court is the same as the one that governs an
application under R.S.C.O. 18, r.19: assuming that the facts as stated in the
statement of claim can be proved, is it "plain and obvious" that the
plaintiff’s statement of claim discloses no reasonable cause of action? As in
England, if there is a chance that the plaintiff might succeed, then the
plaintiff should not be "driven from the judgment seat". Neither the
length and complexity of the issues, the novelty of the cause of action, nor
the potential for the defendant to present a strong defence should prevent the
plaintiff from proceeding with his or her case. Only if the action is certain
to fail because it contains a radical defect ranking with the others listed in
Rule 19 (24) of the British Columbia Rules of Court should be relevant
portions of a plaintiffs statement of claim be struck out under rule 19 (24)
(a).

[18]        
The burden on the party seeking to strike a claim is high. The question
on this application is whether or not it is plain and obvious that the
plaintiffs Notice of Civil Claim discloses no reasonable claim or is
unnecessary, scandalous, frivolous or vexatious or it is otherwise an abuse of
the process of the court

[19]        
The British Columbia Court of Appeal in Hamouth v. Smart Video
Technologist Inc., 2005 BCCA 172, considered whether absolute privilege
arises in the context of a claim for defamation against lawyers arising out of
a letter written by the law firm on behalf of its client. The court said this
at paras. 2 and 3:

(2) The dispute is whether the letter referred to in the
statement of claim was written on an occasion of absolute privilege. There is
no dispute that a lawyer is protected by absolute privilege regarding
statements made in a court proceeding, and that the privilege extends to
communications made in the course of inquiry with respect to or in preparation
for judicial proceedings:…

(3) There is also no dispute that
absolute privilege provides immunity against suit. If the alleged defamatory
statement was made on an occasion of absolute privilege, the statement of claim
may be struck out under Rule 19 (24) (a) as "it discloses no reasonable
claim": see Web Offset Publications at 803; Gatley at para.
13.1.

[20]        
The British Columbia Court of Appeal went on to explain the principles
for granting absolute privilege to lawyers at paras. 37 and 38:

(37)  Granting absolute privilege to lawyers when they act in
the course of their duties to their clients is for the public benefit. It frees
lawyers from fear that in advocating their client’s cause they will be sued if
what they say on behalf of a client is found not to be true. The principal was
stated broadly by Brett, M.R., in Munster v. Lamb (at pp. 603-04):

 If upon the grounds of public
policy and free administration of the law the privilege be extended to judges
and witnesses, although they speak maliciously and without reasonable or
probable cause, is it not for the benefit of the administration of the law that
counsel also should have an entirely free mind? Of the three classes – judge,
witness, and counsel – it seems to me that a counsel has a special need to have
his mind clear from all anxiety. A counsel’s position is one of the utmost
difficulty. He is not to speak of that which he knows; he is not called upon to
consider, whether the facts with which he is dealing are true or false. What he
has to do, is to argue as best he can, without degrading himself, in order to
maintain the proposition which will carry with it either the protection or the
remedy which he desires for his client. If amidst the difficulties of his
position he were to be called upon during the heat of his argument to consider
whether what he says is true or false, whether what he says is relevant or
irrelevant, he would have his mind so embarrassed that he could not do the duty
which he is called upon to perform. For, more than a judge, infinitely more
than a witness, he wants protection on the ground of benefit to the public. The
rule of law is that what is said in the course of the administration of the
law, is privileged; and the reason of that rule covers a counsel even more than
a judge or a witness. To my mind it is illogical to argue that the protection
of privilege ought not to exist for a counsel who deliberately and maliciously
slanders another person. The reason of the rule is, that a counsel, who is not
malicious and who is acting bona fide, may not be in danger of having
actions brought against him. If the rule of law were otherwise, the most
innocent of counsel might be unrighteously harassed with suits, and therefore
it is better to make the rule of law so large that an innocent counsel shall
never be troubled, although by making it so large counsel are included who have
been guilty of malice and misconduct.

 (38)  The principle was stated in more modern language in Big
Pond Communications 2000 Inc. v. Kennedy (2004), 236 D.L.R. (4th) 727 at
para. 19 (O.S.C.J.):

 Counsel have a professional duty to pursue their client’s
interests, within the law, to the fullest extent possible. At times, a lawyer
finds himself or herself advocating unpopular causes. Our system of justice depends
upon courageous lawyers undertaking cases that may be distasteful to the public
at large, and to the lawyer personally. Nonetheless, the Bar does so, often
without thanks from society that does not appreciate the importance of this
task. But it is this professional responsibility to argue the law that ensures
our democratic freedoms continue. Our system of law would be rendered
ineffectual if counsel were required to look behind them for fear of a lawsuit
as a result of presenting his client’s case. This is the mischief that the
privilege seeks to prevent.

[21]        
The "elephant in the room" in this application is the fact
that the Knight action is still ongoing. There has not been any judicial
determination as to the merits of that case.  The allegations made by the
plaintiffs in their Notice of Civil Claim all relate to actions taken by the
defendants on behalf of Ms. Knight in her lawsuit. The lawsuit brought by the
plaintiffs is exactly the mischief that absolute privilege seeks to prevent.

[22]        
The defendants do not owe a duty of care to the plaintiffs. There is no
evidence or even submissions that there are any exceptional circumstances which
would cause the defendants to owe a duty of care to the plaintiff’s as
discussed in the decision of this court in Jensen v. Macgregor, [1992]
B.C.J. No. 467, 89 D.L.R. (4th) 68.

[23]        
I am keeping in mind that the plaintiffs are self represented and that
they have requested an opportunity to amend their pleadings. In my view however
it is clear that this action relates to the steps taken by the defendants on
behalf of their client in the Knight action. Absolute privilege will extend to
any of the claims made by the plaintiffs against the defendants in relationship
to the Knight action.

[24]        
It is plain and obvious that there is no reasonable claim against the
defendants. This litigation in my view is unnecessary, scandalous, frivolous,  vexatious
and otherwise an abuse of the process of the court.

CONCLUSION

[25]        
I order that the plaintiffs’ Notice of Civil Claim filed on April 15,
2013 be struck in its entirety pursuant to Rule 9-5 (1) of the Supreme Court Civil
Rules.

[26]        
As the defendants have not asked for costs in their Notice of
Application I will make no order as to costs.

“R. S. Tindale, J.”