IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120319

Docket: 19501

Registry:
Cranbrook

Between:

Rolf Reiner Kumant

Plaintiff

And

John Pommier,
Anton Wolfgang
and Canadian Sun & Mountains Travel Corporation

Defendants

Before:
The Honourable Mr. Justice Melnick

Reasons for Judgment

[1]            
A former lawyer for the plaintiff, Rolf Reiner Kumant (“Mr. Kumant”),
seeks leave to intervene in an application brought by the defendants subsequent
to the trial in this proceeding. Both Mr. Kumant and the defendants object
to the participation of the lawyer, William E. McNally (“Mr. McNally”).

I.        BACKGROUND

[2]            
On December 16, 2011, I awarded judgment in favour of Mr. Kumant in
the amount of $40,237 for injuries he suffered in a motor vehicle accident. The
trial took place over four days in November 2011. Mr. Kumant acted for
himself at the trial. Apparently, he had previously engaged Mr. McNally as
counsel but, according to Mr. McNally, he ceased acting for Mr. Kumant
as the latter had indicated a lack of confidence in him. Mr. McNally now
claims a solicitor’s lien on the amount Mr. Kumant recovers, including costs.

[3]            
As part of the continuing trial proceeding, the defendants now seek two
forms of relief; the first being to have certain sums deducted from the
judgment on the basis of an argument to be advanced under s. 83 of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231 with respect to certain benefits Mr. Kumant
either received or could have received had he applied for them. The defendants
will also argue that they are entitled to certain costs due to the amount
recovered by Mr. Kumant compared with the amounts of certain offers to
settle they made that were not accepted.

[4]            
Mr. McNally says that his interest is very much at stake in being
able to intervene at this stage to oppose the defendants’ application. That is,
to assist in maximizing to the extent possible the amount to be recovered by Mr. Kumant
and to minimize Mr. Kumant’s exposure to the defendants’ claim for costs.

[5]            
The defendants object to the participation of Mr. McNally. They say
that their application is part of the proceeding brought by Mr. Kumant and
that Mr. McNally is not a party nor should he be. They say that he is
neither a person who ought to have been originally joined as a party, nor one
whose participation is required so that all matters may be effectively
adjudicated upon. In any event, say the defendants, the interest of Mr. McNally
is purely commercial.

[6]            
Further, the defendants argue Mr. McNally’s application is premature
until the amount Mr. Kumant is to recover is known, i.e. at the conclusion
of the defendants’ application.

[7]            
None of this makes much sense to Mr. Kumant, who continues to act
for himself. He has filed no material in response to either application and
says, simply, that he does not owe Mr. McNally anything and Mr. McNally
should not be joined as an intervener.

II.       DISCUSSION

[8]            
Section 79 of the Legal Profession Act, S.B.C. 1998, c. 9
states:

79        (1) A
lawyer who is retained to prosecute or defend a proceeding in a court or before
a tribunal has a charge against any property that is recovered or preserved as
a result of the proceeding for the proper fees, charges and disbursements of or
in relation to the proceeding, including counsel fees.

 (2) Subsection (1) applies whether or not the
lawyer acted as counsel.

 (3) The
court that heard the proceeding or in which the proceeding is pending may order
the review and payment of the fees, charges and disbursements out of the
property as that court considers appropriate.

 (4) Sections
70 to 73 apply to a review under subsection (3) of this section.

 (5) If
the proceeding referred to in subsection (1) was before a tribunal, the lawyer
may apply to the court for an order under subsection (3).

 (6) All
acts done and conveyances made to defeat, or that operate or tend to defeat,
the charge are void against the charge, unless made to a bona fide purchaser
for value without notice.

 (7) A proceeding for the
purpose of realizing or enforcing a charge arising under this section may not
be taken until after application has been made to the appropriate court for
directions.

[9]            
The application brought by Mr. McNally is broad in its scope. He
asks for the following relief:

1.         Fixing
the amount of and approving payment of the fees, charges and disbursements of
the Plaintiff’s former counsel, Mr. McNally, as presented to the Plaintiff
out of the amounts payable to the Plaintiff by the Defendants;

2.         A
direction that any amount owed to the Plaintiff by the Defendants be paid into
court in satisfaction of the solicitors’ lien of the Plaintiff’s former
counsel, Mr. McNally;

3.         Granting
status to the Plaintiff’s former counsel, Mr. McNally, as an intervener
with respect to any costs application in the main action which would alter the
normal incidence of costs being payable to the Plaintiff following the event;

4.         Permission
to the Plaintiff’s former counsel to proceed to taxation against the Defendants
to recover the disbursements, in the event that the Plaintiff is unwilling or
unable to do so; and

5.         Directing that
the Plaintiff’s former counsel, Mr. McNally, receive notice of any
application by the Defendants or the Plaintiff that may adversely affect his
solicitor’s lien.

[10]        
However, upon hearing the application, I asked Mr. McNally’s
counsel to restrict his arguments to those directed at whether Mr. McNally
is entitled to intervene at this stage or at all in the proceeding between Mr. Kumant
and the defendants. Mr. McNally argues that, as he has the statutory right
to his lien, his interest is not simply commercial but is, rather, statutory as
well as part of the common law.

[11]        
Mr. McNally apparently offered his services to Mr. Kumant to
oppose the defendants’ application but, says Mr. McNally, Mr. Kumant
declined the offer. At this point in time, Mr. McNally has the statutory
right to a claim of lien. That lien has not, however, been perfected. That is,
no court has yet made a declaration that Mr. McNally is entitled to a
lien. There is a discretion in the court to allow or not allow a claim of lien.
A useful discussion on this subject may be found in the reasons of Madam
Justice Baker in N.H. v. K.W.; Re Bankruptcy of N.H., 2004 BCSC 463.

[12]        
In Gladue v. British Columbia (Attorney General), 2010 BCSC 788, Mr. Justice
Cole, referring to the predecessor of Rule 6-2(7) of the new Rules of Court (Rule
15(5)(a) of the old Rules) stated at para. 11:

A party seeking to be added must
demonstrate a direct interest in, or that they are directly affected by, the
outcome of the proceedings or that their participation is necessary for
effectual adjudication.

[13]        
Undoubtedly, there may well be an argument at some point, if Mr. McNally
proves his entitlement to a lien, as to whether a claim of a right to set-off
for costs, as advanced here by the defendants, would take priority over and
possibly have the effect of extinguishing the solicitor’s lien. That strikes me
as an issue that would be most effectively dealt with at the hearing of the
defendants’ application. Thus, while it may be true that the extent, if any, of
“the property recovered” by Mr. Kumant will not be known until the
conclusion of the defendants’ application, it would be just and convenient for
the Court to have the assistance of any arguments Mr. McNally may put
before me as to what Mr. Kumant may ultimately be entitled to recover. If
Mr. McNally does prove his entitlement to a lien, then he will have a
legal charge over the funds and not merely a commercial interest in the matter.
But, as noted earlier, Mr. McNally must first have a declaration of the Court
that he is entitled to a lien.

Mr. McNally should first
bring on an application before another judge of this Court for a declaration of
lien and, if made, for the amount to which he is entitled. I direct that
another judge deal with those aspects of Mr. McNally’s application as
Mr. Kumant is self-represented and justice would be thereby best seen to
be done. As the material before me would suggest a prima facie case of
entitlement to a lien (I do note, however, that Mr. Kumant has not yet
filed any opposing material to suggest otherwise which he may well do on such
an application), I find that it is appropriate to adjourn the application of
the defendants for a period of two months to permit Mr. McNally to first
bring on his applications. Liberty to apply to proceed to the parties in this
proceeding if there is any delay beyond the two months by Mr. McNally in
doing so. Notice of any continuance of the defendants’ application shall be
given to Mr. McNally unless this Court rules otherwise.

“Melnick
J.”