IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120622

Docket: 128649

Registry:
New Westminster

Between:

David Pearlman

Plaintiff

And

Vince
Critchley, G. Hocoluk, Quinlan Abrioux, The Insurance Corporation of British Columbia,
Atlantic Trading Company Ltd., Rebecca Lee Spence, Dr. Malcolm Cofman, Dr. Burton
Goldstein, Scott Stephens, Owen Bird Law Corporation, American Commerce Insurance
Company

Defendants

Before:
Registrar Sainty

Reasons for Decision

[1]            
This matter has a lengthy and tortuous history. Mr. Pearlman, the
plaintiff, has brought multiple claims in this Court that stem, in one way or
another, from a motor vehicle accident he suffered in November of 2004. In
addition to tort claims for the injuries he claimed to have suffered, Mr. Pearlman
has made a number of separate claims against a variety of persons and entities (adjusters,
insurers, and medical professionals) arising from the alleged misconduct of those
persons and entities in the course of discharging their various
responsibilities to him following that motor vehicle accident.

[2]            
All of Mr. Pearlman’s claims have been, in one form or another,
dismissed at the trial level. Mr. Pearlman has taken appeals from some of
those dismissals. Some of those appeals have been dismissed as well.

[3]            
In Pearlman v. Insurance Corporation of British Columbia, 2010
BCCA 362, Low, J.A. found Mr. Pearlman to be a vexatious litigant so far
as the appeals were concerned and made an order barring him from bringing any
further appeals from actions arising from the 2004 motor vehicle accident
without leave of the Court of Appeal. Low J.A.’s order was upheld by a full
panel of the Court of Appeal for British Columbia. Their reasons may be found
at 2010 BCCA 568.

[4]            
Mr. Pearlman commenced this action in June of 2010. His pleadings allege
various acts of impropriety by lawyers, a legal assistant, a law firm, and two
insurers during the course of the litigation arising from the 2004 motor
vehicle accident.

[5]            
The defendants Scott Stephens (“Stephens”), Owen Bird Law Corporation
(“OBLC”) and American Commerce Insurance Company (“ACLC”) (collectively the
“Applicant Defendants”) brought two applications to this court. The first
application was for summary judgment. It sought to strike Mr. Pearlman’s
writ of summons and statement of claim and dismiss his action against the
Applicant Defendants pursuant to Rules 9-5 and 9-6 of the Rules of Court. The
second application sought an order that Mr. Pearlman be declared a
vexatious litigant and that he be enjoined from commencing any further legal
proceedings in this court without first obtaining leave of a Justice to do so
pursuant to s.18 of the Supreme Court Act.

[6]            
The Applicant Defendant’s applications came (collectively) before
Gropper J. for determination on January 13 and 31 of this year (2012). Her
Ladyship issued her reasons for judgment [Pearlman v. Critchley, 2012
BCSC 170] (the “Reasons”) on February 2, 2012. In her Reasons, her Ladyship
held (at paras. 46-49):

[46]      Mr. Pearlman’s writ of summons and statement
of claim are struck and his action is dismissed against these defendants.

[47]      Neither Mr. Pearlman nor anyone on his behalf
shall commence any further legal proceedings in this court without obtaining
leave of a Justice of the Court.

[48]      These defendants are entitled to special costs.

[49]      I dispense with Mr. Pearlman’s
endorsement on the order.

[7]            
In commenting on the underlying action, Gropper J. said (at para. 6
of the Reasons):

In the case before me, Mr. Pearlman claims against these
defendants [the Applicant Defendants] as follows:

1)         Mr. Stephens provided selective materials to
Dr. Goldstein;

2)         Mr. Stephens fraudulently obtained Dr. Goldstein’s
expert report;

3)         Mr. Stephens fraudulently concealed parts of
Dr. Goldstein’s report;

4)         These defendants violated Mr. Pearlman’s
right to privacy pursuant to the Privacy Act, by wrongfully obtaining
his dental records from Dr. Cofman and providing Dr. Goldstein’s
expert reports to counsel for the defendants in the other actions as commenced
by Mr. Pearlman;

5)         ACIC is vicariously liable for the conduct of
OBLC and Mr. Stephens;

6)         ACIC redacted evidence from its reports; and

7)         Mr. Stephens fraudulently concealed a
statement made by Rebecca Lee Spence, the defendant in the 2004 motor vehicle
accident tort claim.

[8]            
In dismissing the claim against the Applicant Defendants, her Ladyship
says (Reasons, paras. 11 – 14):

[11]      Like Mr. Morriss [in Morriss v. Cutler,
2010 BCSC 1288], Mr. Pearlman’s actions are based on a faulty premise,
which is that he suffered injuries in the November 2004 accident. The court has
already determined that he did not suffer injuries in that accident. Because
the premise is unfounded, these defendants could not have caused Mr. Pearlman
not to receive damages for the injuries he alleged he suffered in the November
2004 motor vehicle accident, fraudulently or otherwise.

[12]      Referring to the Dempsey criteria [from Dempsey
et al. v. Envision Credit Union et al., 2006 BCSC 750] Mr. Pearlman’s
pleadings do not establish a cause of action and do not advance a claim known
in law. They are groundless.

[13]      Furthermore, the pleadings are not bona fides, they
are oppressive and are designed to cause the defendants anxiety, trouble and
expense. The action is brought for an improper purpose, particularly the
harassment and oppression of the defendants.

[14]      Mr. Pearlman’s
claims cannot be sustained.

[9]            
And at paras. 26 and 27 of her Reasons, Gropper J. says:

[26]      Mr. Pearlman’s writ of summons and statement
of claim do not disclose a cause of action or raise a bona fide triable issue.

[27]      In light of the above,
Mr. Pearlman’s writ of summons and statement of claim are struck and the
action against these defendants is dismissed.

[10]        
In deciding on the application to find Mr. Pearlman a vexatious
litigant, Her Ladyship concludes (paras. 39-42 of the Reasons):

[39]      In applying some of the factors from Re Lang
Michener [Re Lang Michener et. al and Fabian et al. (1987), 37 D.L.R.
(4^th) 685 (Ont. H. Ct. J.)] and Houweling Nurseries [Houweling
Nurseries Ltd. v. Houweling, 2005 BCCA 8], I conclude that:

a)         Mr. Pearlman’s numerous actions and appeals
have been found to lack merit repeatedly. He cannot reasonably expect to obtain
relief. Mr. Pearlman’s repeated actions are for an improper purpose as he
is aware that each assertion of his rights has been rejected;

b)         Mr. Pearlman has “rolled forward” the
grounds and issues of previous actions into subsequent actions. He has brought actions
against lawyers who have acted against him in earlier proceedings;

c)         Mr. Pearlman has not paid any of the costs
which have been awarded against him in the unsuccessful proceedings; and

d)         Mr. Pearlman has persistently taken
unsuccessful appeals to the Court of Appeal and to the Supreme Court of Canada.

[40]      Mr. Pearlman has not demonstrated any self
restraint in pursuing his various actions, despite being unsuccessful at every
level of court. He persists in pursuing the actions he has already filed. He
intends to file more actions. He has perverted access to justice. It is time
for this court to regulate its process. Mr. Pearlman has abused his right
to bring claims in this court. He is not prohibited from filing legal
proceedings; however, he must do so with the leave of a Justice of this Court.
This requirement ensures that before he involves others in litigation, he
convinces a Justice of the Court that it is appropriate to do so.

[41]      I decline to rely on Mr. Pearlman’s litigation
history in courts outside of British Columbia. He has demonstrated that he is a
vexatious litigant in British Columbia, without referring to his previous
litigation history in Manitoba.

[42]      I find that Mr. Pearlman
is a vexatious litigant and order that neither he nor anyone on his behalf
commence any further legal proceedings, including applications for indigent
status, in this court without obtaining leave of Justice of the Court.

[11]        
And, finally, in awarding the Applicant Defendants their special costs
of the applications before her, Gropper J. says (Reasons, para. 45):

I find that Mr. Pearlman’s
pursuit of unmeritorious claims and his accusations of conspiracy and fraud
without any foundation are sufficient to justify an award of special costs. Mr. Pearlman
must be aware that his persistence in bringing vexatious litigation has
significant consequences.

[12]        
The assessment of the Applicant Defendants’ special costs came before me
on April 24, 2012. On that day, I heard the testimony of each of Stephens, Ms
Shepard (an associate with OBLC) and Mr. Carpick. Messrs. Stephens and
Carpick were cross-examined by Mr. Pearlman. The matter then concluded
(with the parties’ submissions) on May 7, 2012.

[13]        
At the commencement of this hearing, Mr. Pearlman made an application
to adjourn the assessment as he has appealed Gropper J.’s decision to the Court
of Appeal which application Garson J. has under reserve at the moment. I
declined to grant his application for a number of reasons. Firstly, it is not
Gropper J.’s actual decision that is under appeal. What Mr. Pearlman has
done is made an application to the Court of Appeal to allow him to bring his
appeal which step is required by virtue of Low J.A.’s decision previously noted
in Pearlman v. Insurance Corporation of British Columbia, supra.
In finding Mr. Pearlman to be a vexatious litigant. Low, J.A. said (para. 20,
2010 BCCA 362):

[20]      There will be an order
that Mr. Pearlman will not bring an appeal from any final order made in
the action he commenced on 25 June 2010 in the Supreme Court of British
Columbia, or from any final order made in any other action in that court
brought against any person and arising out of, or directly or indirectly
connected to, the motor vehicle accident of 25 November 2004 without first obtaining
leave of a justice of this court.

[14]        
Secondly, there is no stay order in place as regards Gropper J.’s decision
and, absent such an order, I have the jurisdiction to proceed to assess the
Applicant Defendant’s costs.

[15]        
Finally, I determined, keeping in mind the object of the Supreme
Court Civil Rules (the “Rules”) which is “to secure the just, speedy
and inexpensive determination of every proceeding on its merits” (Rule 1-3)
that, as I was ready and willing to proceed and as all of the parties were
before me, it would be more appropriate to proceed than to adjourn pending Garson
J.A.’s decision. I also noted that it might be useful, should the Court of
Appeal grant Mr. Pearlman leave to appeal Gropper J’.s decision, to have
the amount of costs determined and before them.

[16]        
The Applicant Defendant’s claim approximately $45,000 in special costs. Mr. Pearlman
says that amount is simply unsupported by the evidence and represents “gouging”
on the part of the Applicant Defendants.

[17]        
On an assessment of special costs, a registrar must [Rule 14-1(3) of the
Supreme Court Civil Rules (“the Rules”)]:

(a)        allow those fees that were proper or reasonably
necessary to conduct the proceeding, and

(b)        consider all of the circumstances, including the
following:

(i)         the complexity of the proceeding and the
difficulty or the novelty of the issues involved;

(ii)        the skill, specialized knowledge and
responsibility required of the lawyer;

(iii)       the amount involved in the proceeding;

(iv)       the time reasonably spent in conducting the
proceeding;

(v)        the conduct of any party that tended to shorten,
or to unnecessarily lengthen, the duration of the proceeding;

(vi)       the importance of the proceeding to the party
whose bill is being assessed, and the result obtained;

(vii)      the benefit to the party whose bill is being
assessed of the services rendered by the lawyer;

(viii)     Rule 1-3 and any case plan order.

[18]        
In relation to the first circumstance — the complexity of the
proceeding and the difficulty or novelty of the issues involved — the
Applicant Defendants say that this matter was complex and difficult and even
contained some novel elements. Firstly, the action was founded on fraud and it
is not easy to get a summary judgment in a fraud case. Secondly, while the
facts supported the result, the actual application was not straightforward and
required significant effort to bring to court. In particular the evidence
required for the vexatious litigant application was voluminous but necessary as
such an order is not common; nor is it one that is readily made.

[19]        
Mr. Pearlman, on the other hand, submits that this matter was
simple and straightforward. He said that it ought to have been plain on the
face of the pleadings that they disclosed no reasonable cause of action and,
accordingly, little effort was required to bring the application to have it
struck. In fact, he says much of the evidence mounted was not admissible as
Rule 9-5(1)(a) and (2) of the Rules specifically prohibit evidence being
admitted on an application to strike pleadings on the grounds that they
disclose no reasonable claim.

[20]        
Even more specifically, Mr. Pearlman claims that both Mr. Stephens
and Mr. Carpick are simply not credible and that I ought to, if I find
them to be incredulous, refer this matter to the police for prosecution. In his
submissions, Mr. Pearlman said that when cross-examined each of Messrs.
Stephens and Carpick refused to answer his question: “Did Madam Justice Gropper
dismiss my action of the basis that no cause of action was disclosed?”

[21]        
During his submissions, I found my notes of the evidence which indicated
that, when asked this question by Mr. Pearlman, Mr. Stephens
responded: “Yes, she did”. When I pointed this out to him, Mr. Pearlman
then suggested that Mr. Carpick had failed to respond to that same
question and suggested that, on that basis, I ought to find him to be a liar. I
could not put my finger on my notes on that point during Mr. Pearlman’s
submissions but, before issuing these reasons, I listened to the recording of
the evidence. Mr. Carpick’s response to the question was that the Reasons
speak for themselves and while the fact that no cause of action was disclosed
was a substantial part of the Reasons, he would not agree that the matter was
as simple as Mr. Pearlman believed. Nor would he agree with Mr. Pearlman’s
suggestion that her Ladyship very quickly disposed of the application to
dismiss on the grounds that the pleadings disclosed no cause of action. Mr. Pearlman’s
responses to Mr. Pearlman’s question indicate that, in his view, there was
more to the application(s) than a simple request to dismiss it on the basis of
the defective pleadings.

[22]        
As the allegations against Messrs. Stephens and Carpick were so
inflammatory and serious, I want to specifically note in these reasons that I
found all of the Applicant Defendant’s witnesses to be truthful and forthcoming
with me. There is no basis whatsoever for Mr. Pearlman’s claim that the
witnesses were in any way evasive or untruthful in their evidence.

[23]        
I also wish to note that, while on an application to dismiss an action
brought pursuant to Rule 9-5(1)(a) of the Rules no evidence may be
adduced, in order to succeed on the application to have Mr. Pearlman
declared a vexatious litigant, it was important that the court understand the
complete history of matters involving him; particularly in relation to the 2004
accident. On that application significant evidence was required to be presented
as, although a declaration that an individual is a vexatious litigant does not
prevent him from accessing justice, it certainly is an extraordinary remedy and
not one that will be granted lightly.

[24]        
Additionally, while Gropper J. dismissed the action against the
Applicant Defendants under Rule 9-5(1)(a), the actual application sought relief
under Rules 9-5(1)(b) and (d), as well as sought summary judgment under Rule
9-6.

[25]        
Those Rules provide:

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

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

(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(2)  In an action, a person who files an originating
pleading in which a claim is made against a person may, after the person
against whom the claim is made serves a responding pleading on the claiming
party, apply under this rule for judgment against the answering party on all or
part of the claim.

(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.

[26]        
Therefore it is clear that “evidence” was required to be brought before
Her Ladyship — both in relation to the vexatious litigant application and the
applications to dismiss and for summary judgment. The matter is certainly not
as “simple” as Mr. Pearlman has attempted to portray it.

[27]        
A further complicating factor is Mr. Pearlman himself. Despite
several orders against him, he is seemingly unable to be dissuaded from his
ongoing efforts to re-litigate matters that have already been decided. On this
assessment, he attempted to ask Mr. Stephens questions which relate to
Mr. Pearlman’s claims against Mr. Stephens in the action itself. When
it was pointed out to him that those questions were not relevant to the matter
at hand — the assessment of costs — Mr. Pearlman insisted that they were
as they went to Mr. Stephens’ bona fides (or lack thereof). Even
after I told Mr. Pearlman that he could not pursue that line of
questioning, he continued to pose the same questions to Mr. Stephens. Mr. Pearlman
appears not to consider himself bound by rulings (or decisions) of members of the
judiciary. That in and of itself lends a degree of complexity and difficulty to
matters involving Mr. Pearlman. Not to mention that such attempts are a
collateral attack on a decision of this court and thus not permissible under
the rules of evidence.

[28]        
As for the skill and responsibility required of counsel who were
involved in this matter, none of the witnesses testified as to their particular
skill set (as it applied to these applications). I did hear, however, from Mr. Carpick
that he was called to the Bar in 1988. Mr. Stephens was called some 5
years ago and Ms Shepard is a junior lawyer. Ms Shepard was used in
circumstances that called for junior counsel. For example, she undertook a
“watching brief” in relation to an application heard before Schultes J. brought
by some of the other defendants to this action for summary judgment. As well,
she did some general research.

[29]        
Before moving further in these reasons, I will note that, when the
parties came before me for submissions, I noted to Mr. Carpick that
Schultes J.’s only awarded the defendants “regular” costs in respect of the
applications before him and that I had some concerns about the Applicant
Defendants’ inclusion in their bill of special costs the time spent in relation
to that application. Mr. Carpick conceded that point at the hearing and
suggested that the bill of special costs might be reduced by some $3,000 (plus
taxes) to take that into account. I will keep that concession in mind in
determining the amount of special costs to award the Applicant Defendants.

[30]        
On the issue of skill, specialized knowledge and responsibility, Mr. Pearlman
suggested that no skill was brought to bear as the lawyers failed to read the
statement of claim and determine that it disclosed no cause of action and bring
an immediate application under Rule 9-5(1)(a).

[31]        
I do not agree. No doubt this matter required counsel with some degree
of skill. It also, in my view, was assisted by the fact that Mr. Stephens
had previous experience with Mr. Pearlman. He was familiar with the facts
and with Mr. Pearlman himself. In reviewing the materials it was clear to
me that, where possible, more junior lawyers were used to carry out tasks
requiring less skill and expertise.

[32]        
As for the amount involved, Mr. Pearlman submitted that, as the
Applicant Defendants suggested that the pleadings disclosed no cause of action
and the matters raised were res judicata, it can only be said that no
monies were involved.

[33]        
Mr. Carpick agrees that no amount is quantifiable. He says Mr. Pearlman
sought damages in an unknown and undisclosed amount against the Applicant
Defendants. He also notes that previous judgments have held that Mr. Pearlman
suffered no damages. Further he says that there is an economic benefit
resulting from the order naming Mr. Pearlman a vexatious litigant — that
is that all of those persons whom Mr. Pearlman might bring vexatious suits
against will save countless amounts of legal fees in not having to defend
against his frivolous and vexatious actions.

[34]        
In terms of the “time reasonably spent”, Mr. Pearlman was adamant
that the amount of effort was completely disproportionate to a simple, straight
forward matter that ought to have been seen as such from the early stages; i.e.,
that the action was capable of being dismissed as disclosing no reasonable
cause of action. In his submissions, Mr. Carpick suggested that in
deciding on this factor (and the matter in general) I should use a “reasonable
standard”; not a “perfect standard”.

[35]        
In Bradshaw Const. Ltd. v. Bank of N.S. (1991), 54 B.C.L.R. (2d)
309, affirmed on the issue of costs (1993), 73 B.C.L.R. (2d) 212 (C.A.), Bouck
J. confirmed that, in deciding an assessment of special costs, the tests to be
applied are objective, rather than subjective and that an award of special
costs ought to be akin to “the fees that a reasonable client would pay a
reasonably competent solicitor for performing the work described in the bill”.

[36]        
Here the bill sets out a number of items undertaken by the lawyers on
their own behalves and on behalf of their client ACIC. The bill notes the
following items of work:

taking instructions from client;

researching law

corresponding with co-defendants’ counsel and the Law Society;

reviewing plaintiff’s pleadings and drafting and filing
client’s pleadings;

obtaining documents and making production of documents;

reviewing and responding to co-defendants’ applications for, inter
alia, summary judgment;

reviewing and responding to plaintiff’s application for, inter
alia, leave to use interrogatories and for affidavits of documents;

attending hearings of co-defendants’ and plaintiff’s
applications;

drafting and attending to the entry of the order of Mr. Justice
Schultes;

preparing affidavits and notices of applications for summary
judgment and a vexatious litigant order;

attending hearings for the applications for summary judgement
and a vexatious litigant order;

drafting and entering interim and
final orders of Madam Justice Gropper.

[37]        
The bill of costs then attaches the actual bills rendered by OBLC to
ACIC in relation to this action, redacted for solicitor-client privilege. Those
bills contain lengthy descriptions of the items undertaken. The evidence before
me was that all of the items described on these bills were performed by counsel
and that each person (Carpick, Shepard and Stephens) accurately recorded their
time to the file. I also had  before me the affidavit of Mr. Stephens (#4)
sworn March 7, 2012 which provided a “high-level” overview of the matter. What
I did not get was a detailed review of all of the matters by the witnesses. I
commented on this at the start of the hearing. I believe I said Mr. Stephens’
affidavit was “wanting” meaning that it alone did not contain sufficient
evidence upon which the bill of costs might be substantiated. There is no
requirement that a party presenting a bill of special costs disclose all of
their work product or file contents. A registrar may, on an assessment, assess
the fee portion of the bill by reference to the pleadings, filed affidavits and
reasons for judgment (see Law Society of British Columbia v. Hanson,
2006 BCSC 1993). That being said, the party must provide the reviewing officer
with sufficient information on which she may make a reasoned decision in
respect of what a “reasonable client would pay a reasonably competent solicitor
for performing the work described in the bill”.

[38]        
I have no doubt that a considerable amount of work was put into this
matter by Messrs. Stephens and Carpick. Ms Shepard’s work (for the most
part) appears to have related to the appearance before Schultes J. and
therefore is not claimable as part of this bill of special costs.

[39]        
While I might have preferred to have a more comprehensive review of the
actual work done, I am able to gather from the information that was before me a
flavour for it — both from the documents and the Reasons (in particular). I
also appreciate counsels’ decision not to pour inordinate resources into this
assessment given the amount sought and Mr. Pearlman’s status as an
indigent before this court.

[40]        
That being said, I have some concerns about the overall amount of time
spent by counsel and sought to be “reimbursed” as special costs. The
description of the matters undertaken include the work related to the
application before Schultes J. and while Mr. Carpick conceded Ms Shepard’s
time, clearly time was spent by others on that as can be seen from a review of
the bills. Or there may be other matters recorded and which are not properly
subsumed in Gropper J.’s order, including some of the redacted entries,
perhaps? As well, my review of the bills confirms that Mr. Carpick’s and Mr. Stephens’
time occasionally overlapped. Both spent time preparing and reviewing the
motion materials. Both billed for intra-office conferences between them and for
preparing for and attending to speak to the applications. Mr. Stephens
testified that he tried to “join forces” with counsel for the defendants (other
than the Applicant Defendants) but that he was not successful in bringing
everyone together. Time for those conferences is claimed on the bills but is
not really specific to the applications to which her Ladyship’s order for
special costs relates.

[41]        
I was concerned, initially, as to whether it was necessary and proper in
the sense of Rule 14-1(3) to have both Mr. Carpick and Mr. Stephens
attend in court and speak to the applications before Gropper J. No specific evidence
was given regarding the necessity of that in these circumstances. However, in
deciding on the propriety of both counsel’s attendance before her Ladyship, I
am mindful of the comment of Southin, J. (as she then was) in Roberts v.
Muir (Re) (1986), 7 B.C.L.R. (2d) 211, where she said:

As to Mr. Kuchta’s point
that two counsel were not necessary, I disagree. When I was at the bar, I
considered it a disservice to a client in any matter of moment not to have a
junior assisting me. Two heads are usually better than one. Sometimes, of
course, the client simply cannot afford two counsel and must then, so to speak,
travel economy rather than first class.

[42]        
This matter was one of “moment” insofar as the Applicant Defendants are
concerned. These are circumstances where a “Cadillac” was preferred to a
(so-called) “economy ride”. The allegations against OBLC and Mr. Stephens
were serious. ACIC was facing (potential) long-term litigation with a difficult
plaintiff in respect of a matter which it had essentially already litigated. Mr. Pearlman
is not the “usual” plaintiff as, although appearing on his own behalf, he is
not unfamiliar with the court process (having formerly been counsel) and
clearly gives no quarter.

[43]        
In the circumstances, it would have been impossible to do justice to the
client’s case without utilizing the law firm’s many resources. In my view, it
was not only fair and reasonable, but absolutely necessary, to involve both Mr. Carpick
and Mr. Stephens (who had a personal stake in the matter) in this matter.

[44]        
As for the parties’ conduct, the Applicant Defendants say that their
conduct substantially shortened the proceeding and that the total bill must be
considered in light of three key points:

(a)      the fact that there were two categories of
defendants — OBLC and Stephens and ACIC, each of whom would have been entitled
to their own counsel;

(b)      the two applications were heard together thus
resulting in less costs than might have been the case had they been heard
separately;

(c)      the fact that Mr. Pearlman is a
self-represented litigant who “makes things harder and thus more costly than
would be the case with almost any other litigant”.

[45]        
Mr. Pearlman suggests that, rather the opposite is the case and
that the Applicant Defendants’ conduct, in fact, unnecessarily lengthened the
duration of the proceeding. Specifically he says that, since the matter was res
judicata and Gropper J. dismissed his pleadings on the basis that they
disclosed no claim, there was no need to take such a long time, expend so much
effort and use so much counsel time to achieve the final result. He also claims
that the witnesses here (particularly Messrs. Carpick and Stephens) were
untruthful with the court and their conduct ought not to be “rewarded” with a
substantial award of special costs.

[46]        
In general on this point, I agree with the submissions of the Applicant
Defendants. I have dealt with Mr. Pearlman’s claims earlier in these
reasons but I will repeat them here as Mr. Pearlman raised them
specifically under this “circumstance” that I must consider.

[47]        
The matter was not as simple as Mr. Pearlman makes it out to be.
The applications (and there were two of them) were not brought solely to
dismiss this action on the basis that the pleadings disclosed no claim. The
application included  arguments for dismissal under Rule 9-5(1)(b) [it is
unnecessary, scandalous, frivolous or vexatious] and (d) [it is otherwise an
abuse of the process of the court]; as well as Rule 9-6 [summary judgment]. In
addition, the second application (to have Mr. Pearlman declared a
vexatious litigant) required careful and painstaking preparation.

[48]        
Further, I find no support for Mr. Pearlman’s claims that Messrs.
Carpick and Stephens (or either one of them) were not truthful with this court.

[49]        
No doubt this matter was of great import to OBLC and to Mr. Stephens
whose professional integrity were impugned by Mr. Pearlman and in the
pleadings. As for ACIC, it was important to them to put an end to what had
become an endless series of actions seemingly pursued by Mr. Pearlman from
spite or “a paranoid sense of being aggrieved”.

[50]        
The results were a complete victory for the Applicant Defendants. Not
only were they successful on the applications, they were successful in
achieving an award of special costs, a discretionary remedy only awarded where
the conduct of a party may be found to be “reprehensible”.

[51]        
In all of the circumstances, I find that the fees that were proper or
reasonably necessary to conduct the proceeding is the sum of $30,000, plus
taxes of $3,600, for total fees of $33,600.

[52]        
As for the disbursements, at the hearing Mr. Stephens made some
amendments to the bill of special costs in respect of the disbursements
claimed. I also queried some of the charges. Pursuant to Rule 14-1(5):

(5)        When assessing costs under subrule (2) or (3) of
this rule, a registrar must

(a)        determine which disbursements have been
necessarily or properly incurred in the conduct of the proceeding, and

(b)        allow a reasonable amount for those
disbursements.

[53]        
Copies of the invoices for many of the disbursements were attached to Mr. Stephens’
affidavit and they were all set out on the bill of special costs. I reviewed
the bill and considered the evidence. Based on that review, I find that the
following disbursements were necessarily and properly incurred in the conduct
of the proceeding and that the reasonable amount for such disbursements is:

[54]        
The Applicant Defendants are therefore entitled to special costs of $38,366.84.

[55]        
As for the costs of the assessment of special costs, they, themselves,
are to be assessed as special costs (see Szpradowski (Guardian ad litem of)
v. Szpradowski Estate [1992] B.C.J. No. 2536 (S.C.), at p. 3). I
find no reason here to depart from that rule and order that the Applicant
Defendants be awarded their special costs of this special costs assessment. At
the hearing, Mr. Carpick asked that I simply fix those special costs, as
is available to me (per Grimshaw v. Peak Lodge 2002 Inc., 2007 BCSC 131
(at para. 14)). I was advised that, before the second day of hearing
before me, the fees recorded, but not yet billed, in relation to the assessment
were some $4,537, plus disbursements of $80 (non-taxable) and $44.95 (taxable).
I was told that there was additional time recorded for Mr. Carpicjk’s
preparation for and attendance before me on May 7, 2012 but I was not provided
an amount for that.

[56]        
A registrar is entitled on an assessment of costs to employ a “rough and
ready” approach to determining matters such as these (see Sovani v. Jin 2006
BCSC 855). In my view, the appropriate amount of fees for the special costs
assessment would be $4,000, plus taxes of $480.00. I would allow the Applicant
Defendants their disbursements as claimed in the amount of $130.34 (inclusive
of taxes), resulting in a costs award in relation to the assessment of special
costs of $4,610.34. I note that in determining the costs of the special costs
assessment, I took into account that likely all three counsel who appeared
recorded time to their preparation and attendance but, as they all testified to
the work done, to a large extent two of them at least were before me as
witnesses and not counsel and their time for appearing as witnesses ought not to
be compensated as costs in this matter.

[57]        
The Applicant Defendants are entitled to total special costs, inclusive
of the appearance before me in the amount of $42,977.18. They may prepare a
certificate of costs in this amount and forward it to me for signature.

“Registrar Sainty”

___________________________

Registrar Sainty