IN
THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100302

Docket:
M034375

Registry: Vancouver

Between:

Aime Olenga

Plaintiff

And

Sisett & Company

Defendant

Before: The Honourable Madam Justice Gropper

Reasons for Judgment

Introduction

[1]            
Mr. Olenga claims that the defendant, Sisett
& Company, was negligent in its legal representation of him.

[2]            
In December 2004, Mr. Olenga filed a statement
of claim seeking damages against the Insurance Corporation of British Columbia
(ICBC) and against Sisett & Company.  ICBC applied under Rule 19(24), Rule
18A and s. 3 of the Limitation Act, R.S.B.C. 1996, c. 266, to dismiss
the plaintiff’s claim.  Sisett & Company applied under Rule 19(24) or
alternatively, Rule 18A for an order that the plaintiff’s further amended
statement of claim relating to Sisett & Company which alleged a conspiracy
with ICBC and fraud be struck out as disclosing no reasonable claim and as
being unnecessary, scandalous, frivolous and vexatious.

[3]            
The applications were heard by Mr. Justice
Cullen in April 2005.  In his reasons for judgment, Olenga v. ICBC et al.,
2005 BCSC 1015, 140 A.C.W.S. (3d) 567, Cullen J. dismissed the statement of
claim against ICBC and struck Mr. Olenga’s statement of claim where it alleged
fraud and  a conspiracy between Sisett & Company and ICBC and others.  He
allowed Mr. Olenga to amend his statement of claim to assert only that Sisett
& Company were negligent in the settling of his motor vehicle accident
claim, when it knew or ought to have known that due to the medications he was
on, he was not able to properly instruct his counsel and agree to a settlement.

[4]            
During the trial, Mr. Olenga described many
circumstances which were addressed in his amended statement of claim which
suggested claims of fraud, breach of trust and of fiduciary duty.  These claims
are outside the category of negligence and have already been dismissed by
Cullen J. and cannot be raised again before me.  I will not address them in
these reasons.

Background

[5]            
Mr Justice Cullen described the background
succinctly in his judgment, which I will repeat for ease of reference.

[6]            
Mr. Olenga was involved in three motor vehicle
accidents. The first occurred on July 21, 1997 in Williams Lake (the “July 1997
accident”). It was a single vehicle accident while Mr. Olenga was driving. He
was working at the time of the accident and his claim was through the Workers’
Compensation Board (the “WCB”).  There was no tort claim against any other
party or Part 7 claim against ICBC.

[7]            
The second accident occurred on May 19, 2000
(the “May 2000 accident”).  Mr. Olenga was driving a friend’s car when it was
involved in an accident with another party at the intersection of East 31st
Avenue and Victoria Drive in Vancouver.  As a result of that accident, Mr.
Olenga made a tort claim against that party, Xiao Guang Zhong Kelvin, and a
claim for Part 7 benefits against ICBC. He commenced an action through the
defendant Sisett & Company in conjunction with the May 19, 2000 accident by
filing a writ and statement of claim on June 4, 2001 (the “underlying action”).
 

[8]            
On February 28, 2003, Mr. Olenga was involved in
a third accident while travelling as a passenger on a bus (the “February 2003
accident”). He did not commence an action with respect to that latter accident,
but retained Sisett & Company to represent him with respect to that claim
as well.

[9]            
The underlying action was set for trial on
September 15, 2003 before a judge and jury. A few months before the trial was
to take place, the lawyer acting for the plaintiff, Sandro Laudidio, wrote to
counsel acting for the defendants in the tort claims offering to settle the
plaintiff’s claims in relation to both the May 2000 and February 2003 accidents.

[10]        
Mediation was held on August 11, 2003. At the
mediation, an agreement was reached where Mr. Olenga apparently accepted
$37,500 including $2,500 already paid by ICBC in exchange for a release signed
by him, releasing the defendant and potential defendant and ICBC from liability
from the May 2000 and February 2003 accidents respectively.

[11]        
Mr. Olenga has been diagnosed with chronic pain
syndrome. There is no consensus as to that diagnosis as some of the doctors who
have examined him and reviewed his file have raised the issue of an
exaggeration of his symptoms. Those who do diagnose Mr. Olenga with chronic
pain syndrome look to the July 1997 accident as the most severe and
consequential and the second and third accidents as aggravating in nature.

[12]        
Mr. Olenga is dissatisfied with the settlement
of his claims. The action which he has pursued since that time represents his
attempt to seek redress of what he considers to be an unjust resolution of the
effect of the accidents on his health and quality of life.

Issue

[13]        
The only issue before me is whether Sisett &
Company acted negligently in their legal representation of Mr. Olenga.  The
evidence and submissions indentified three areas of alleged negligence:

 1. Retainer:

 Did Sisett & Company agree to
represent Mr. Olenga in relation to both the July 1997 and the May 2000 accidents
and to represent him in his Workers’ Compensation Board claim arising from the July
1997 accident?

 2. Representation:

 Did Sisett & Company act
negligently by:

 a.       naming the wrong
defendant in the underlying action?

b.       failing to accommodate Mr. Olenga’s impairment in the
morning?

c.       failing to get ICBC to pay for his massage therapy
treatments?

 d.       by advising Mr. Olenga
that his claim was worth $1,300,000?

 3. Settlement:

 Did Sisett & Company act
negligently by advising Mr. Olenga to accept the defendant’s offer of $37,500
in settlement of all of his claims and by settling Mr. Olenga’s claims without authorization?

Evidence
and Findings of Fact

1.       Retainer

Evidence

[14]        
Mr. Olenga met with Mr. Sisett of Sisett &
Company on June 9, 2000.  During that meeting, he signed a retainer agreement,
the subject line of the agreement states: “Re: Tort claim – MV Injuries May 19,
2000”.

[15]        
Mr. Olenga says that Mr. Sisett agreed to
represent him in respect of the July 1997 accident and the May 2000 accident. 
Mr. Olenga describes Mr. Sisett as “taking charge” and that Mr. Sisett said
that he would deal with both.  When asked about what he understood about the
subject line of the retainer agreement, Mr. Olenga said that he did not read
the retainer agreement before he signed it. 

[16]        
Mr. Sisett denies that he accepted a retainer to
represent Mr. Olenga in respect of the July 1997 accident.  He says that if Mr.
Olenga asked him to represent him in that action, and deal with the WCB, he
probably would have not accepted a retainer at all.  The July 1997 accident was
“statute barred” and no legal action could be taken upon it.  Furthermore, Sisett
& Company does not accept retainers in respect of WCB claims.  The subject
of the retainer agreement is the motor vehicle injuries sustained in the May
2000 accident and “nothing else”.  Mr. Sisett agrees that he and Mr. Olenga
engaged in discussion of the injuries resulting from the first accident and the
WCB claim to determine Mr. Olenga’s condition before the May 2000 accident.  From
that discussion, Mr. Sisett learned that Mr. Olenga had not worked since the July
1997 accident but Mr. Olenga advised him that he was ready to go back to work
before the May 2000 accident occurred.

[17]        
Mr. Olenga says that Mr. Sisett agreed to represent
him in regarding injuries he sustained in both the first and second accidents.  He
says that Mr. Sisett told him that “both cases look very straight forward”. 

[18]        
All the correspondence which Sisett &
Company sent to Mr. Olenga and to others involved in providing evidence,
including those providing medical-legal opinions, identify the May 2000
accident as the subject matter.

[19]        
Mr. Laudidio, an associate of Sisett &
Company from May 2001 to November 2004, was assigned responsibility of
prosecuting Mr. Olenga’s claim.  Mr. Laudidio says that when he began to work
on the file in 2001 he was not aware of a decision by the Review Board of the
WCB nor was he aware that Mr. Olenga’s view was that Sisett & Company were
retained to represent Mr. Olenga in respect of the WCB matter.

[20]        
In their first meeting of October 5, 2001, Mr.
Laudidio says that Mr. Olenga did not mention anything about Sisett &
Company representing him regarding his WCB claim.  The matter first came up
when counsel for the defendant in the underlying action for the May 2000
accident, Peter Collins, suggested that WCB may be prepared to pay for Mr.
Olenga to attend a pain clinic which ICBC was not prepared to fund.  Mr.
Laudidio suggested in a letter to Mr. Olenga on November 16, 2001 that Mr.
Olenga present his claim for the costs of the pain clinic to WCB to get their
response.

[21]        
Approximately one year later, on November 6,
2002, Mr. Laudidio says that Mr. Olenga came in for a meeting with him.  They
had a brief discussion about the WCB issue but Mr. Laudidio says it was not the
focus of the meeting.  Mr. Laudidio said that Mr. Olenga told him that he was
looking for a lawyer to “help him out” with the WCB claim but the lawyer he had
spoken to wanted a $1,200 retainer.  Mr. Laudidio says:

He told me that
he had started his appeal but could not pursue it.  He wanted me to revive the
appeal.  I agreed to contact WCB and advise that Mr. Olenga wanted to proceed
with his appeal and ask them to reopen or revive or reinstate it.  This was the
first time he asked me to do anything about it.

[22]        
Mr. Laudidio says that he agreed to file an
application on Mr. Olenga’s behalf to get the appeal back on track.  Mr.
Laudidio says:

I understood that
Mr. Olenga had attempted to appeal the decision of the Review Board but because
of his 2000 motor vehicle accident he could not complete it.  I reviewed this
as a routine matter.  As a favour to him I wrote two or three letters to get
his appeal back on track.  Mr. Olenga was having a bad time and I could see
that.  I thought I could help him out by writing a couple of letters, so I
agreed to do that.

[23]        
Mr. Laudidio wrote to WCB on November 20, 2002
advising that Mr. Olenga wished to continue with his appeal.  The WCB responded
that they were experiencing delays on February 11, 2003.  In June 2003, the Workers’
Compensation Appeals Tribunal (the “WCAT”) provided an application for an
extension of time to Mr. Laudidio who completed it and returned it on July 16,
2003.  Mr. Laudidio says that he did nothing further in an attempt to reinstate
the appeal. The application for an extension of time was rejected by the WCAT
on November 16, 2004.  At that time Mr. Laudidio was no longer an associate of
Sisett & Company.

[24]        
Mr. Olenga signed a second retainer agreement
with Sisett & Company on July 3, 2003.  The title of the retainer agreement
is “Re: Tort Claim –  28 February 2003.”  There is no dispute about the scope
of this second retainer. 

Findings of Fact

[25]        
The written retainer agreement which was signed
by Mr. Sisett and Mr. Olenga on June 9, 2000 stated that it was “Re: Tort Claim
– May 19, 2000”.  It did not refer to any WCB matters.  Mr. Olenga insists that
Mr. Sisett said that he would deal with them both.  Mr. Sisett says that his
firm did not deal with WCB matters, and he would not have taken a retainer which
included a WCB claim.  Mr. Olenga’s claims from the July 1997 accident were
statute barred, which meant that Mr. Olenga did not have the right to file an
action in court.  The Limitation Act requires that a claim arising from
a tort, such as a car accident, cannot be brought beyond two years from its occurrence. 

[26]        
Both Mr. Sisett and Mr. Laudidio say that there
was a discussion about Mr. Olenga’s WCB claim and his July 1997 accident, as it
related to establishing damages arising from the May 2000 accident, including
non-pecuniary damages and loss of income, both past and future.  Those
discussions did not mean that they were retained to represent Mr. Olenga in
respect of those claims. 

[27]        
Mr. Laudidio says that he became aware of the
WCB claim and the fact that Mr. Olenga wished to pursue it in November 2002,
after almost a year of dealing with Mr. Olenga’s claim.  Mr. Laudidio admitted
that he had limited involvement.  He prepared an application to extend the time
for the hearing of Mr. Olenga’s appeal.  He says that he did that because he
could see that Mr. Olenga was having a hard time.

[28]        
I find that the WCB matter related to the first
accident was not the subject of the retainer agreement between Mr. Olenga and
Sisett & Company.  First and foremost, the written agreement is clear: it
only refers to the May 2000 accident.  Each piece of correspondence between
Sisett & Company and Mr. Olenga and Sisett & Company and others
referred only to the May 2000 accident.  I accept that Sisett & Company
does not deal with WCB matters, and it would be most unlikely for Mr. Sisett to
agree to represent Mr. Olenga in a claim arising from a motor vehicle accident
in 1997.  It was no longer a claim that was actionable.

[29]        
There is no evidence to support Mr. Olenga’s
assertion that the retainer included the July 1997 accident and matters arising
from his WCB claim. The first retainer was limited to claims arising from the
May 2000 accident and the second retainer was limited to the claims arising
from the February 2003 accident.  Sisett & Company were not retained to
represent Mr. Olenga regarding any claims arising from the July 1997 accident. 

2.       Representation

a.       Wrong Party Named in Underlying
Action

Evidence

[30]        
Mr. Olenga claims that Sisett & Company did
not name the proper defendant in the underlying action.  Mr. Olenga says that
he exchanged information with the driver of the other vehicle at the scene of
the May 2000 accident and made a handwritten note of the details, including the
name of the driver and the owner of the other vehicle.  Mr. Olenga says that
the note shows Mr. Xia as the driver and that he was driving his brother, Mr.
Xiao’s vehicle. There is only one defendant named in the underlying action: Mr.
Xiao Guang Zhong Kelvin.  Mr. Olenga says that he gave the handwritten note,
including the names of both the driver and the owner of the other vehicle, to
Mr. Sisett when they met on June 9, 2000.  Mr. Sisett does not recall receiving
this note from Mr. Olenga.

[31]        
Mr. Olenga met with Leslie Campbell, an
insurance adjuster employed by ICBC on May 25, 2000 about the May 2000
accident. Mr. Olenga says that when he gave his statement to Ms.  Campbell, he
told her that the other driver told him that he was driving his relative’s
car.  He says that he gave her his handwritten note of the details. Ms.
Campbell does not recall receiving any documents from Mr. Olenga during that
meeting.

[32]        
 The information allegedly contained in Mr.
Olenga’s handwritten note does not appear on the May 25, 2000 ICBC written
statement which is apparently signed by Mr. Olenga.  The statement does not mention
that the driver was driving someone else’s car.  Mr. Olenga’s explanation of
the omission in the written statement is that it is a forgery.  Ms. Campbell
says that the May 25, 2000 statement is the only statement which was prepared
and which she saw Mr. Olenga sign.  The statement was opened on May 25, 2000 in
the ICBC computer system for about 32 minutes and then closed.  A document
which is closed on ICBC’s system cannot be altered.

[33]        
Mr. Olenga also says that when he dealt with
Leslie Campbell on May 25, 2000, and he refused to sign the statement, they got
into a “big argument”, the police were called, but they did not attend.  Ms.
Campbell says that she and Mr. Olenga did not have an argument that day, the
police were never called, and she recalls the meeting went well and concluded
well.

[34]        
Mr. Xiao provided a signed written statement to
ICBC on May 24, 2000 in which he acknowledged that he was the driver and the
owner of the vehicle involved in the May 2000 accident with Mr. Olenga’s
vehicle.  He confirmed the same at the examination for discovery which Mr.
Laudidio conducted of him on March 6, 2002.

Findings of Fact

[35]        
Mr. Olenga relies on his handwritten note which
he says he prepared at the scene of the May 2000 accident to demonstrate that
the individual named in the writ of summons and statement of claim as the
driver and owner of the other vehicle, Xiao Guang Zhong Kelvin, is in fact
incorrect.  Neither Ms. Campbell, the ICBC adjuster who took Mr. Olenga’s
statement on May 25, 2000, nor Mr. Sisett who met with Mr. Olenga on June 9,
2000 recalls receiving this handwritten note.  Mr. Xiao admitted to being the
owner and the driver of the vehicle in the May 2000 accident both in his statement
to ICBC and in his examination for discovery.

[36]        
Mr. Olenga’s only response is to say that the
ICBC statement which bears his signature is forged.  He provides no basis for
this. Mr. Campbell has satisfied me that the document is not forged, nor could
it be, given ICBC’s procedures for closing documents.  The allegation of
forgery is farfetched. It is not credible.

[37]        
Mr. Olenga must also be asserting that Mr. Xiao
is lying in both his statement and his answers on examination for discovery.  There
is no evidentiary basis for such an assertion.

[38]        
Given the foregoing, I find that Mr. Xiao was
the proper defendant in the underlying action and that Sisett & Company was
not negligent in naming the defendant in the underlying action.

b.       Impairment

Evidence

[39]        
Mr. Olenga claims that as a result of medication
which he takes, he is “sedated” in the morning.  He does not schedule events in
the morning because he can be “very slow and in a fog”.

[40]        
Mr. Olenga says he provided a document to Mr. Sisett
from his doctor which confirms his impairment in the morning in their first or
second meeting.  The document, which Mr. Olenga describes as a “medical
certificate” is a memo of Dr. Burns to John Pinty dated March 8, 1999 which
indicates that Mr. Olenga was taking medication at the time and that Mr. Olenga
said that he was “foggy in the a.m.”.  Mr. Olenga explained that Dr. Burns was
his physician and John Pinty was an instructor in a course at Vancouver Community
College in which Mr. Olenga was enrolled in 1999.

[41]        
Mr. Olenga says that he gave Mr. Sisett the
“medical certificate”.  He says that he told Mr. Sisett, Mr. Laudidio, and two
other associates of the law firm that he did not want anyone to ask him a
question or make an appointment for him in the morning.  Mr. Olenga says:

I don’t do
appointments in the morning.  I believe when I talked to [Mr. Laudidio] he
wanted to schedule an appointment in the morning.  I told him that I take
medication and therefore in the morning I would not be a good candidate.

[42]        
Mr. Sisett was not asked about whether he
received the “medical certificate”.  Mr. Laudidio says that Mr. Olenga did not
advise him that medication affected his thinking during the morning.   He could
not recall seeing the “medical certificate”.

[43]        
Mr. Olenga asked Mr. Laudidio whether it ever
occurred to him that Mr. Olenga had mental difficulties.  Mr. Laudidio says:

I didn’t think
you were incompetent to tell your story – you were able to answer the questions
at the discovery and the medical doctors did not suggest that.  I did find your
evidence inconsistent.

[44]        
Mr. Laudidio was asked if he reviewed the
medical-legal reports which were prepared for the underlying action,
specifically that of Dr. Derryck Smith, a psychiatrist who prepared an opinion
for the defence in the underlying action.  Mr. Laudidio said that he did not
take from Dr. Smith’s opinion nor any of the other medical-legal opinions that
he received in the underlying action to suggest that Mr. Olenga was mentally
impaired in the morning or at all.

[45]        
Mr. Olenga claims that Mr. Sisett and Mr.
Laudidio were aware that he was impaired in the mornings and were negligent in
arranging for him to attend examinations for discovery, medical appointments,
and the mediation which occurred on August 11, 2003 in the morning.

[46]        
Mr. Collins observed Mr. Olenga in the mornings
when he conducted an examination for discovery and at the mediation.  He said
that if he saw that Mr. Olenga was having difficulty understanding what was
going on or was not capable of communicating, he would have suggested to Mr.
Laudidio  that they “call it a day and adjourn, but it didn’t happen here.”

Findings of Fact

[47]        
Mr. Olenga relies on the “medical certificate”
which describes his impairment in the morning.  The document is clearly not a
medical certificate nor has Mr. Olenga proven that it was provided to anyone at
Sisett & Company.  The medical legal reports which were prepared in the
underlying action do not refer to any such impairment.  Mr. Laudidio said that
he was unaware of Mr. Olenga’s impairment in the morning.  Neither he nor any
of the others, including ICBC’s counsel, Peter Collins, had any indication that
Mr. Olenga was impaired in the mediation on the morning of August 11, 2003.

[48]        
I find that if Mr. Olenga is impaired in the
morning, it has not been proven in evidence, nor has it been proven that Mr.
Laudidio or anyone else at Sisett & Company who dealt with his file had
knowledge of such impairment.  Knowledge of the impairment is an important prerequisite
to the requirement that Sisett & Company and others accommodate this
impairment.  Sisett & Company did not ignore or exploit Mr. Olenga’s alleged
impairment in the morning.

c.       Massage Therapy Accounts

Evidence

[49]        
When Sisett & Company rendered its final
account, it included a disbursement for massage therapy treatments which Mr.
Olenga had received from East Vancouver Therapeutic Massage in the amount of
$2,407.18.  Mr. Olenga says that Sisett & Company was negligent in not obtaining
ICBC’s agreement to pay for all of his massage therapy treatments following the
May 2000 accident.

[50]        
Mr. Laudidio says that he asked ICBC to fund
ongoing massage therapy treatments by letter in February 2003.  Cheryl Walker,
the litigation adjuster for ICBC, refused to pay for any more passive therapy like
massage. She did agree to advance $2,500 to Mr. Olenga in order that he could
obtain therapy that had been recommended in the plaintiff’s medical-legal
report from Dr. Cecil Hershler dated September 18, 2002.  Mr Laudidio provided
the advance money to Mr. Olenga and suggested that he use the money for the
recommended treatment, but Mr. Olenga advised him that he intended to use the
money for a Dutch law firm he had retained to pursue another claim.

[51]        
Mr. Laudidio included an amount in his mediation
brief attributable to past and future massage therapy treatments of $283.20,
which had been provided to him by his legal assistant.  Special damages were
not specifically discussed during the mediation and the offers made by ICBC
during the mediation were “global” or all-in-one offers; they did not delineate
an amount for each head of damage.  It was not until Sisett & Company
prepared its final account that it became aware that there was an unpaid
massage therapy bill in the amount of approximately $2,400.

Findings of Fact

[52]        
It is clear from the evidence that there was an
error in the accounting for the massage therapy treatments.  However, ICBC did
not agree to pay for ongoing therapy, nor did Sisett & Company.  I accept
that Mr. Laudidio was not aware of the true amount of physiotherapy treatments
when he prepared his mediation brief; however, the settlement was for a global
amount and did not specify a particular amount for a particular head of
damage.  The amount of the settlement was intended to address all of Mr.
Olenga’s claims, including those claims for special damages, whatever the
amount.  The payment of the massage therapist was Mr. Olenga’s responsibility
and was appropriately paid to the massage therapist by Sisett & Company
from the settlement funds.

d.       Claim valued at $1,300,000

Evidence

[53]        
Mr. Olenga describes that during the meeting of
June 9, 2000, Mr. Sisett picked up the book McGregor on Damages, and
after looking at some portion of that book, Mr. Sisett advised him that his
claim was worth “1.3 million dollars” and “that is the settlement he would get
for me”.  Mr. Sisett denies that he made such a statement to Mr. Olenga during
that meeting or at all. He says:

I absolutely
never ever state to a client what his claim might be worth.  It is standard
practice to let the client know that the agreement was a partnership, and we
look to the client for the straight goods and we fight for them.  Our standard
practice is not to mention an amount… [but to advise the client] that he needs
to prove the loss and we will recover to the full extent of the loss that the
client can prove.

[54]        
Mr. Sisett says that a summary view of the facts
surrounding the May 2000 accident would have alerted him that Mr. Olenga’s
damages would not be at or near the maximum allowable for non-pecuniary
damages. There would not be a significant award made for loss of income or loss
of opportunity to earn income in the future; Mr. Olenga had not worked since
the July 1997 accident. Mr. Sisett also says that he and his associates were always
careful not to create false expectations in their client’s beyond the loss that
could be proven.  Mr. Sisett insists that he did not and does not own a copy of
McGregor on Damages.

Findings of Fact

[55]        
Mr. Olenga’s assertion is not believable.  Mr.
Sisett was clear that he does not make estimates of a plaintiff’s claim before
he is familiar with the claims and is aware of what can be proven.  He was also
clear that he and his associates are careful not to create false expectations
in their clients.  Mr. Olenga did not demonstrate that his claim was worthy of an
award of $1,300,000.

3.       Settlement

Evidence

[56]        
Mr. Laudidio prepared a draft mediation brief on
June 3, 2003.  He went over the summary in a meeting with Mr. Olenga.  Mr. Laudidio
described that he prepared the document by calculating the damages, including
referring to the case law for non-pecuniary damages for similar injuries and
those dealing with chronic pain.  Mr. Laudidio said he put his view of Mr.
Olenga’s best position in the summary.  He reviewed the medical evidence and
reviewed Mr. Olenga’s examination for discovery.  He concluded that the role of
the 1997 accident was a very serious complicating factor.  He considered that
where there are widely spaced incidents which give rise to an injury, the court
is likely to apportion the damages to each injury.  Mr. Olenga was not able to
describe how the May 2000 accident made his injuries worse.  The majority of
his damages could have been applied to the July 1997 accident for general
damages.  Mr. Laudidio said he also looked at Mr. Olenga’s loss of future
opportunity.  He explained that a jury would look at the plaintiff’s earning
capacity and determine whether the July 2000 accident had an effect on his
ability to work.  This was a problem as Mr. Olenga had not worked since 1997
and therefore it would be hard to establish that he had a loss of capacity arising
out of May 2000 accident.

[57]        
Mr. Laudidio also  assessed the evidence given
by Mr. Olenga and Mr. Xiao in their discoveries and considered that Mr. Olenga
would have difficulty proving that Mr. Xiao was liable for the accident.

[58]        
Mr. Laudidio says that he concluded that $75,000
was the best possible outcome for Mr. Olenga’s non-pecuniary damages.  The
nature of the injuries and the type of accident meant that if the matter was
heard by a jury it could be substantially less.  The seriousness of the May
2000 accident was minor and this would be an unpredictable factor in
determining how a jury would quantify Mr. Olenga’s claim.  Furthermore, the
offer of $75,000 for non-pecuniary damages did not take into account any
deduction for contributory negligence.  The loss of earning capacity of $30,000
was nominal because Mr. Olenga had not worked since the July 1997 accident and there
was a possibility that he would receive nothing under that head of damages.

[59]        
Mr. Laudidio met with Mr. Olenga shortly after
he prepared the draft to review it.  Mr. Olenga asked Mr. Laudidio questions
about how he came up with the numbers.  Mr. Olenga considered that the numbers
in the mediation settlement document were too low.  Mr. Laudidio said that in
his experience as plaintiff’s counsel in personal injury matters that is a
common sentiment.  No plaintiff has ever suggested that calculation of damages
was too high.  Mr. Olenga added the words “punitive damages” to the settlement
draft.  During his meeting with Mr. Laudidio, Mr. Olenga did not mention that
Mr. Sisett had stated that the value of his claim was $1,300.000 in their
meeting of June 9, 2000.

[60]        
Mr. Laudidio revised the brief before presenting
it to Mr. Collins and Ms. Walker at the mediation.  The brief indentified that
Mr. Laudidio would recommend settlement to Mr. Olenga  on the basis of $75,000
for non-pecuniary damages, $30,000 for loss of earning capacity, $283.20 for
special damages, and $22.67 for Court Order Interest, for a total of
$105,305.87.

[61]        
The amount of special damages was added up by
Mr. Laudidio’s legal assistant who included invoices and treatment bills which
were outstanding.  Mr. Laudidio says that if he was aware that the account was
actually in the nature of $2,800 he would have included that in the settlement
brief.

[62]        
Mr. Laudidio wrote to Mr. Olenga on July 15,
2003 and advised him that they would meet on Friday, August 8, 2003 at 10 a.m.
to prepare for the mediation. Mr. Olenga says that he met Mr. Laudidio to
prepare for the mediation at 2 p.m. on August 10, 2003.  Mr. Olenga says he
called Sisett & Company and arranged an appointment other than in the
morning.  Mr. Laudidio has no recollection of meeting on August 10, 2003, or of
changing the time of the meeting.

[63]        
Mr. Laudidio scheduled the mediation for August
11, 2003 at 10 a.m.  Mr. Olenga says he objected to the mediation occurring in
the morning.  He says that Mr. Laudidio stated “that is how the court works,
you cannot change that”.  Mr. Olenga says that Mr. Laudidio said he could walk
in the room and Mr. Laudidio would do the whole thing.

[64]        
Mr. Olenga says he did not know that there was a
trial scheduled for September 2003.  He understood that a trial date would be
obtained from the mediation process.  Mr. Olenga says that is why he went to
the mediation at 10 a.m. on August 11, 2003.  He said that Mr. Laudidio
convinced him that “if he did not go there, there would be no trial and that
would be it for his case”.

[65]        
Mr. Olenga describes the mediation which
occurred on August 11, 2003.  He says that he was having a hard time that day
and was approximately 45 minutes late for the mediation.  Mr. Olenga said “I
sat down and [Mr. Collins and Ms. Cheryl Walker] started asking me questions”. 
Mr. Olenga expected Mr. Laudidio to answer the questions but Mr. Olenga says
Mr. Laudidio said that he had to answer.  Mr. Olenga said:

I felt
betrayed.  I was asked a bunch of questions.  I don’t know what I said.  When
we left, I said to Mr. Laudidio that I was gone and that I was not coming
back.  He told me not to do that – I would lose the case.  I left and got on
the bus, but realized that that was stupid so I came back.

[66]        
Mr. Olenga says that there was a discussion
which occurred between Mr. Laudidio and ICBC’s representatives.  Mr. Olenga
says that Mr. Laudidio advised him that there was an offer for $370,000 “new
money”.  New money means in addition to the $2,500 already advanced in February
2003.  Mr. Olenga did not explain the basis of his assertion that ICBC made an
offer of $370,000.  Mr. Olenga says that Mr. Laudidio told him “do you want to
throw that away to go to a trial?  I won’t allow this”.  Mr. Olenga says that
he told Mr. Laudidio “if you want to go to trial we will sue you for the money,
and you can’t get any other lawyer until you pay our bill.”

[67]        
Mr. Olenga says he told Mr. Laudidio that that
did not sound right as he came to get a trial date from the mediation, not a
settlement.  He says that he told Mr. Laudidio that he did not want to settle
and pointed out to Mr. Laudidio that Mr. Sisett told him that he would get $1,300,000
for his claim.  Mr. Olenga said “I won’t accept anything less”.

[68]        
Mr. Laudidio disagrees that the meeting to
prepare for the mediation occurred on August 10, 2003 at 2 p.m.  That was a
Sunday, and Mr. Laudidio is certain that he met with Mr. Olenga during business
hours and not on the weekend.  He does not recall the time of the meeting.  Mr.
Laudidio denies saying that the mediation was for the purpose of obtaining a trial
date.  Trial dates had been fixed and a notice of trial had been filed.  Mr.
Laudidio specifically sent Mr. Olenga the notice of trial which refers to the
trial date.

[69]        
Mr. Olenga described Mr. Laudidio as “shaking me
down” to accept the offer.  Mr. Laudidio describes the mediation differently. 
He prepared notes.  His notes describe Mr. Olenga arriving an hour late,
meeting for a period, and then “disappearing” for 45 minutes.

[70]        
Mr. Laudidio said that the first session was a
“plenary session” where the Mr. Laudidio, Mr. Olenga, Mr. Collins and Ms.
Walker met in a meeting room with the mediator.  Mr. Laudidio says that he
presented Mr. Olenga’s point of view, he pointed out the July 1997 accident but
that Mr. Olenga was on the mend when the May 2000 accident occurred.  It was a
setback and an exacerbation of Mr. Olenga’s existing injuries from the July 1997
accident. Mr. Collins then gave his submissions, including that Mr. Olenga was
entirely liable for the May 2000 accident and that he was disabled from
injuries from the July 1997 accident at the time.  Some questions were asked
and then Mr. Laudidio said “we started talking numbers”.

[71]        
Mr. Laudidio went to the breakout room, and Mr.
Olenga went outside for air.  Mr. Olenga came back 40 minutes later.

[72]        
Mr. Laudidio continues:

Shortly after, we received the first offer
from the defence which was presented to us in the plenary room.  It was for
$20,000 ‘new money’ and $9,500 for costs and disbursements to settle both the
2000 and 2003 motor vehicle accidents and Mr. Olenga’s part 7 claim.  Mr.
Collins had also referred to the $2,500 advance.

Mr. Olenga says
he was not happy with the defendant’s offer.  Mr. Olenga was impatient and
insisted that they had assessed his claim to low.

[73]        
Mr. Laudidio said that he explained that Mr.
Olenga was not going to get $100,000 but that they could make a counter offer. 
Mr. Olenga wanted substantially more money and Mr. Laudidio explained the
difficulties to him including the liability issue and his pre-existing medical
condition.

[74]        
Mr. Laudidio says that, with Mr. Olenga’s
instructions, they presented a number to settle the case to the mediator.  The
offer was for $30,000 new money and costs of $10,000.

[75]        
The mediator took that offer to the defendant’s
representatives and came back with the defendant’s final offer of $37,500 new
money “all in”, meaning that the amount was not broken down into separate heads
of damages.  Mr. Laudidio said that he presented that offer to Mr. Olenga and
they discussed it.  They discussed the risks of going to trial and Mr. Laudidio
was satisfied that Mr. Olenga understood that.  Within about 15 minutes of his
accepting the offer, Mr. Olenga told Mr. Laudidio how to distribute the
proceeds of the settlement.

[76]        
Mr. Olenga says that when he signed the full and
final release of claim and the minutes of settlement he was of no clear and
sound mind.  He did not know what he signed.  He signed it because Mr. Laudidio
pressured him to do so.  Mr. Olenga stated:

He was kind of
yelling and he terrorized me.  He mixed me up to get me to sign the documents
while I told him that I didn’t want to sign any documents there in the morning,
that I would look at it another time but according to him I had to do it then
and now.  [Mr. Laudidio] said that he wouldn’t allow me to lose the new money,
that’s exactly what he said, I don’t know what that means but it is exactly
what he told me, because I know at the bottom of my heart, that I couldn’t or wouldn’t
ever sign this document.

[77]        
Mr. Laudidio was in the room with Mr. Olenga
when Mr. Olenga signed the documents, including the release of all claims and
the minutes of settlement which outlined the terms of the agreement.  Mr.
Olenga signed them.  Mr. Laudidio says that there was no altercation between
Mr. Olenga and himself.  He did not “terrorize” Mr. Olenga.  He told Mr. Olenga
that it was his decision to settle or not.

[78]        
Mr. Laudidio says that on August 13, 2003,
Sisett & Company received the funds from Mr. Collins office.  Mr.
Laudidio’s assistant prepared the final accounts and cheques.  Mr. Laudidio
needed to know how Mr. Olenga wanted the cheques to be made out.  He had a
telephone call with Mr. Olenga.  Mr. Laudidio wrote the instructions on one of
the pages of the notes that he had taken in the mediation.

[79]        
Mr. Olenga met with Mr. Laudidio at Sisett &
Company on August 20, 2003.  Mr. Laudidio presented the “authority to disburse”
which was the firm’s authority to release the funds from its trust account. 
The authority to disburse referred to the massage therapy bill of $2,407.18,
which was higher than Mr. Laudidio had understood and apparently more than Mr.
Olenga expected.  Mr. Laudidio explained that the firm had to hold back the
entire amount for payment to the massage therapist, although he had gone back
to ICBC to see if they would pay it. ICBC declined.  After Mr. Olenga signed
the authorization, the cheques which were made out in accordance with Mr.
Olenga’s instructions were provided to him.  Mr. Olenga also received the
statement of account.    The authority to disburse funds confirmed that the
total settlement was $37,500 and of that amount, Mr. Olenga was to receive a
total of $13,789.35.

Findings of Fact

[80]        
Mr. Olenga’s evidence regarding the mediation is
based upon his assertion that he was impaired and that Mr. Laudidio knew that. 
As I have already determined that Mr. Olenga has not proven that he was
impaired in the mornings, or the specific morning of the mediation, or that Mr.
Laudidio would be aware of such impairment, I reject Mr. Olenga’s evidence
about the mediation entirely.

[81]        
It is clear that there was no offer of $375,000
was made.

[82]        
Mr. Olenga, by his objective conduct of signing
the release and minutes of settlement, directing Mr. Laudidio concerning the
disbursement of funds and taking the cheques, demonstrates that he was fully competent
and did accept the offer of $37,500 “new money”.

Legal Principles

[83]        
An essential element of proof of a claim in
negligence is that some damage has been suffered by the plaintiff.  As is
pointed out in Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 8th
ed. (Markham: LexisNexis Butterworths, 2006) at p. 111:

Negligence
actions have been dismissed, on occasion, despite the clear presence of
negligent conduct, on the basis that no loss has been established.

[84]        
The duty of care expected of a lawyer was
defined in Tiffin Holdings Ltd. v. Millican (1964), 49 D.L.R. (2d) 216
at 219, [1965] 50 W.W.R. 673 (Alta. S.C.), rev’d 53 D.L.R. (2d) 674, 53 W.W.R.
505 (Alta. S.C. Apel. Div.), restored [1967] S.C.R. 183, 60 D.L.R. (2d) 469, as
follows:

1.         To be skilful and careful.

2.         To
advise his client on all matters relevant to his retainer, so far as may be
reasonably necessary.

3.         To protect the interest of his
client.

4.         To carry out his instructions by
all proper means.

5.         To
consult with his client on all questions of doubt which do not fall within the
express or implied discretion left to him.

6.         To keep his
client informed to such an extent as reasonably necessary, according to the
same criteria.

[85]        
The duty of a lawyer to inform his or her client
was described in Girardet v. Crease & Company (1987), 11 B.C.L.R.
(2d) 361 at 370-371, 3 A.C.W.S. (3d) 304:

…it is part of the
duty of a solicitor not only to give good advice but also to make his reasons
clear to the client.  That does not mean writing the client page after page of
legal jargon which, to most clients, is unintelligible.  But a client has a
right to know why.  How else can she make an informed judgment on the matter at
hand?

[86]        
The standard of care to which a lawyer is held
is that of a reasonably competent and diligent counsel in Vancouver from 2000
to 2003: Startup v. Blake, 2001 BCSC 8, 110 A.C.W.S. (3d) 1194.

[87]        
Special considerations apply in circumstances in
which it was alleged that the solicitor was negligent in the settlement of an action.
Those considerations were described in Karpencov v. Paroian, Courey, Cohen &
Houston (1980), 117 D.L.R. (3d) 383 at 397-398, 2 A.C.W.S. (2d) 478, where
the court stated:

…To the
decision to settle a lawyer brings all his talents and experience both
recollected and existing somewhere below the level of the conscious mind, all
his knowledge of the law and its processes.  Not least he brings to it his
hard-earned knowledge that the trial of a lawsuit is costly, time-consuming and
taking for everyone involved and attended by a host of contingencies, foreseen
and unforeseen.  Upon all of this he must decide whether he should take what is
available by way of settlement, or press on. … In my view it would be only in
the case of some egregious error… that negligence would be found.

[88]        
A lawyer’s duty does not extend to ensuring or
guaranteeing expected results for the client: Midland Bank Trust Co. Ltd. v. Hett, Stubbs and Kemp, [1978] 3 All
E.R. 571 (Ch. D.).

[89]        
A lawyer’s conduct should not be judged by way
of hindsight, but in light of the knowledge he possessed, or reasonably ought
to have possessed, at the time of the negligence alleged against him: LaFleur
v. Murphy, 2002 BCSC 986, 116 A.C.W.S. (3d) 283.

Conclusion

[90]        
I find that Sisett & Company was not
retained in respect of the July 1997 accident, Mr. Olenga’s WCB claim or his
WCAT appeal.  The proper party was named as a defendant in the underlying
action.  Neither Mr. Sisett nor Mr. Laudidio or any other representative of
Sisett & Company was aware of Mr. Olenga’s alleged impairment in the
mornings.  Mr. Olenga was responsible for payment of his massage therapy
treatments.  Mr. Sisett did not advise Mr. Olenga that his claim was worth
$1,300,000, nor did he suggest that he receive that amount by way of settlement
or court award.  Finally, Mr. Olenga was fully competent when he accepted
ICBC’s offer to settle his claim for $37,500 “new money”. 

[91]        
These findings mean that even if Mr. Olenga had
proven that he suffered damages as a result of the conduct of Sisett &
Company, an essential element required to prove negligence and which he did not
address in his evidence at all, he has not proven that Sisett & Company
acted negligently in any aspect of their representation of Mr. Olenga. 

[92]        
Mr. Olenga’s action is dismissed.

Costs

[93]        
Sisett & Company is entitled to costs at
Scale B.

“Gropper
J.”