McLean v. Law Society of British Columbia

2016 BCCA 368 McLean v. Law Society of British Columbia COURT OF APPEAL FOR BRITISH COLUMBIA Citation: McLean v. Law Society of British Columbia, 2016 BCCA 368 Date: 20160914 Docket: CA43059 Between: Kevin A. McLean Respondent (Plaintiff) And Law Society of British Columbia, Alison Kirby, John Nalleweg, Larry Dirk, Kieron Grady, Erin Milz, Mark Bussanich, Deborah Armour, Howie Caldwell, and Phil Riddell Appellants (Defendants) And Justice Management Ltd., John Doe #1, John Doe #2, John Doe #3, John Doe #4, John Doe #5, John Doe #6, John Doe #7, Jon Doe #8, John Doe #9, Jane Doe #1, Jane Doe #2, Jane Doe #3, Jane Doe #4, Jane Doe #5, Jane Doe #6, Jane Doe #7, Jane Doe #8, Jane Doe #9, Jane Doe #10, Jane Doe #11, and Jane Doe #12 (Defendants) Corrected Judgment: The text of the judgment was corrected at paragraph 16 on September 15, 2016. The first page and paragraphs 3, 6, 27, 29 and 40 were corrected on September 16, 2016. Before: The Honourable Madam Justice Saunders The Honourable Madam Justice Neilson The Honourable Mr. Justice Willcock On appeal from: An order of the Supreme Court of British Columbia, dated August 13, 2015 (McLean v. Law Society of British Columbia, 2015 BCSC 1431, Vancouver Docket No. S1410056) Counsel for the Appellants: G.B. Gomery, Q.C. J.K. Lockhart Respondent Appearing In Person: K. McLean Place and Date of Hearing: Vancouver, British Columbia March 7, 2016 Place and Date of Judgment: Vancouver, British Columbia September 14, 2016 Written Reasons by: The Honourable Madam Justice Saunders Concurred in by: The Honourable Madam Justice Neilson The Honourable Mr. Justice Willcock Summary: The action alleges conspiracy by the defendants in respect to discipline proceedings under the Law Society Rules. Prior to trial the defendants applied under Rule 9-6 of the Supreme Court Civil Rules for summary judgment dismissing the action against all individual defendants save one, and under Rule 9-5 of those Rules for an order striking portions of the notice of civil claim. The plaintiff sought declarations of invalidity of Rule 4-33 of the Law Society Rules and an order made under that Rule, an injunction, and certain declarations. The judge largely dismissed the defendants' application. On the plaintiff's application she enjoined the Law Society from entering or attempting to enter the plaintiff's residence and declared that he was not required to produce his personal cell phone under the Rule 4-43 order. The defendants appealed. Held: appeal allowed. The injunction and declaration are set aside. The Rule 9-6 application is remitted to the trial court for determination. In respect to the injunction and declaration the judge failed to apply the requirement for prospective relief by failing to consider whether there is a cognizable threat to the plaintiff's legal interests, and the record falls short of supporting both the injunction and declaration. As to the Rule 9-6 order, the judge failed to address the test for summary judgment, which requires consideration of affidavits; the mere existence of disputed facts in the pleadings will not defeat an application under this Rule. Reasons for Judgment of the Honourable Madam Justice Saunders: [1] Mr. McLean has attracted the attention of the Discipline Committee of the Law Society of British Columbia, with the result that on May 27, 2014 the Committee made an order under Rule 4-43 of the Law Society Rules (now re-numbered as Rule 4-55) providing for an investigation of the books, records and accounts of Mr. McLean and his professional law corporation. [2] In this action, Mr. McLean alleges the Law Society, the Chair of the Discipline Committee and eight employees of the Law Society, engaged in a conspiracy to, among other things, "extricate" him from the practice of law. Mr. McLean challenges the Rule 4-43 order under s. 8 of the Charter of Rights and Freedoms and on administrative law principles. He claims damages, remedies in relation to the Rule 4-43 order, and injunctive relief. Apart from raising Charter, administrative law, and equitable law issues in respect to the Rule 4-43 order, the action sounds in conspiracy to injure, assault, battery, intentional infliction of emotional distress, libel, slander, inducing breach of contract, intentional interference with contractual relations, breach of the Privacy Act, R.S.B.C. 1996, c. 373, extortion, intimidation and harassment. [3] The appeal arises from the disposition by Madam Justice Gerow of two applications. The first, brought by the defendants, sought an order under Rule 9-6 dismissing the action against all the individual defendants except Mr. Dirk (who is alleged to have assaulted Mr. McLean) and an order under Rule 9-5(1) striking portions of the notice of civil claim. The judge allowed this application only to a limited extent: she struck some, but not all, of the paragraphs challenged by the appellants and dismissed certain of the claims against three of the Law Society employees, Ms. Armour, Ms. Kirby and Mr. Nalleweg, relating to the claim in defamation. [4] The second application, brought by Mr. McLean, sought declarations of invalidity of both Rule 4-43 and the Rule 4-43 order, a declaration the appellants had conspired as alleged, and for: 7. An order that the Plaintiff is not required to provide his personal cell phone for copying by the LSBC and/or the LSBC is restrained from copying the Plaintiff's personal cell phone; And 8 An Order that the LSC [sic] is restrained from attempting to enter the plaintiff's personal residence . and/or the LSBC is restrained from entering the Plaintiff's principal residence; [5] At the hearing of the applications Mr. McLean also sought to amend his pleadings, and appears to have sought an order striking the appellants' amended response to civil claim. The judge allowed limited amendments only. [6] In respect to Mr. McLean's main application, the judge dismissed many of his requests, but did order: 6. The LSBC Defendants' application to dismiss the plaintiff's action against [the personal defendants except for Mr. Dirk] is dismissed as premature. 8. The Plaintiff is not required to produce his personal cell phone to the Law Society of British Columbia pursuant to the May 27, 2014 order under Rule 4-43 of the Law Society Rules 9. The Law Society of British Columbia is enjoined from entering or attempting to enter the plaintiff's residence pursuant to the Rule 4-43 Order. 10. Nothing in these orders precludes the Law Society from applying for an order pursuant to s. 37 of the Legal Profession Act. The Grounds of Appeal [7] The defendants appeal, contending the judge erred: 1. in determining that the investigation authorized by the Rule 4-43 order may only recover documents located in Mr. McLean's office. In so saying they seek to set aside paragraphs 8 and 9, replicated above, of the order, and 2. in dismissing their application for judgment in favour of the personal defendants. Fresh Evidence [8] As part of their submissions the appellants challenge the sufficiency of the evidentiary record supporting the orders appealed. Mr. McLean, in response, applies to adduce as fresh evidence an affidavit appending six pages of documents that he said he received as part of the Law Society's document disclosure. It is undisputed that those documents were disclosed to him after the date of the order appealed. The appellants do not oppose the admission of the documents, but do contest the admission of Mr. McLean's affidavit on the basis it mischaracterizes the documents and is argumentative. [9] I agree that most of the affidavit is inadmissible as being argumentative and in the nature of submissions. Accordingly, I would not admit it. Nor would I admit the documents appended to it, notwithstanding the appellants' position. In my view they do not meet the criteria set out in Palmer v. The Queen, [1980] 1 S.C.R. 759 at 775. While I accept that the documents were not available to Mr. McLean at the time of the hearing, they would not affect the outcome of the appeal and thus lack the necessary materiality to justify receipt of them, for the first time, in this court. Discussion [10] Broadly stated, the appeal raises issues of limitations on the Law Society's investigation of Mr. McLean and the viability of the claims pleaded against the personal defendants. I will address the issues in that order. Limitations on the Law Society's Investigation [11] In reaching her conclusion on the issue of production of the cell phone or entering places other than Mr. McLean's law office the judge said: [90] In my opinion, s. 36 of the Legal Professions Act and the Law Society Rule 4-43 do not authorize the Law Society to search the personal cell phone of a member or enter his or her personal residence. Rule 4-43 provides that an investigation of the books, records and accounts of the lawyer and law firm may be ordered. Rule 3-5(6.1) provides that the Executive Director may enter the business premises of a lawyer during business hours. [91] The fact that s. 36 of the Law Society Act and Rule 4-43 authorizes an investigation of a member's books, records and accounts, does not in my view, allow the Law Society to enter into a member's residence, or seize his personal phone, or suspend him for failing to comply with a request for those items. Section 37 of the Legal Professions Act provides that the Law Society may apply to the Supreme Court for an order to seize files or records of or relating to a lawyer, wherever located, if there are reasonable grounds to believe the lawyer committed misconduct, conduct unbecoming a lawyer, or any breach of the Act or the rules. In my opinion, the Law Society is required to apply under that provision if it wants to seize records or files of the plaintiff located in locations other than his law office, such as on his personal phone or in his residence. [92] The plaintiff asserts that the defendant Law Society has suspended him for not complying with the Rule 4-43 order by failing to provide them with his personal cell phone or access to his home. In my view, insofar as the Law Society is utilizing the Rule 4-43 order to require that the plaintiff produce his personal cell phone or to allow entry into his residence, it does not have the jurisdiction to do so. [93] Accordingly, I am of the view it is appropriate to grant the orders sought in paragraphs 7 and 8 of the May 13, 2015 application. I am making the following orders: 1. The plaintiff is not required to produce his personal phone to the Law Society pursuant to the Rule 4-43 order, and 2. Restraining the Law Society from entering or attempting to enter the plaintiff's residence pursuant to that order. [12] The appellants contend that the judge was mistaken in her understanding of the breadth of investigation the Law Society may embark upon under the authority of the Legal Profession Act, S.B.C. 1998, c. 9 and the Law Society Rules. Further, they say she erred in ordering that Mr. McLean was not required to produce his personal cell phone and in enjoining the Law Society from entering Mr. McLean's place of residence. Last, in respect to the challenge brought by Mr. McLean to the scope of the authority of the Discipline Committee under Rule 4-43, upon which paragraphs 8, 9 and 10 of the judge's order rest, they say Mr. McLean has used the wrong procedure to challenge both the Rule and the order. They contend that Mr. McLean was required to make his challenge under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241. The appellants say an application for judicial review is required to engage the correct approach to the Discipline Committee's understanding of its authority and its processes. Thus he could not make his challenge to what were exercises of a statutory power through his application brought in this action. [13] I have set out in an appendix, for the interested reader, the Rule 4-43 order, Rules 3-5(6) and 3-5(6.1) appended to the order, Rule 3-5.01(1) considered relevant by the judge, and Rule 4-43, all of these ostensibly made under s. 36 of the Legal Profession Act. However, I do not embark on an analysis of these instruments in detail because I conclude that the first application before the judge was not the correct procedure to determine the legitimacy of Rule 4-43 or the order. In any event, paragraphs 8, 9 and 10 of the judge's order replicated above must be set aside because the necessary conditions for such prospective orders are not established in the reasons for judgment. [14] I will address first the actual order made by the judge and then the procedure adopted by Mr. McLean. [15] The appellants contend that the judge erred in ordering that Mr. McLean is not required to produce his personal cell phone to the Law Society and in enjoining it from entering his residence, absent a reasonably grounded apprehension that such orders are necessary to foreclose future wrongful actions on its part. Mr. McLean says the order in respect to the cell phone is not an injunction, and he says there was ample evidence, including of the Law Society's views of its powers, upon which the impugned orders could be made. [16] Although the order was made before the trial of the action, I would characterize the orders as final rather than interlocutory. Thus they would engage the law applicable to the granting of prospective relief. Mr. Justice Savage, in reasons for judgment in respect to leave to appeal, properly characterized paragraph 8 of the impugned order, as a declaration. Nonetheless, both paragraph 8 in the nature of a declaration and paragraph 9 enjoining the Law Society engage the same considerations, given they both have permanently limiting effects. Considering the principles that must be applied in respect to an order intended to restrain future conduct, I conclude that both paragraphs 8 and 9 must be set aside, and consequently paragraph 10 must be as well (which in any event is mere repetition of the substance of a statutory provision). I have reached this conclusion because the orders on the effect of the Act and Rules were made without determination of facts that could bear upon the business, personal, or hybrid use to which the phone and premises are put, and without any assessment of the likelihood of future legal wrongs to Mr. McLean in respect to the phone and premises. [17] Both declarations and injunctions, speaking as they do to actions in the always unknowable future, are uncommon relief. The principles in equity are clear that a permanent injunction will not be ordered in the absence of a determination that the enjoined conduct is likely to occur. In Aquila Networks Canada (B.C.) Ltd. v. Borgnetta, 2004 BCCA 188 at para. 13, this court said: In order to obtain an injunction Aquila must establish the likelihood that the apprehended behaviour will occur: Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441 at 458. [18] This same approach applies in respect to declarations concerning future conduct. In Operation Dismantle Inc. v. Canada, [1985] 1 S.C.R. 441 at 457-458 Justice Dickson, for the majority, discussed the sparing approach that courts must take on applications for prospective declaratory and injunctive relief: the preventative function of the declaratory judgment must be based on more than mere hypothetical consequences; there must be a cognizable threat to a legal interest before the courts will entertain the use of its process as a preventive measure. As this Court stated in Solosky v. The Queen, [1980] 1 S.C.R. 821, a declaration could issue to affect future rights, but not where the dispute in issue was merely speculative. In Solosky, supra, one of the questions was whether an order by a director of a prison to censor correspondence between the appellant inmate and his solicitor could be declared unlawful. The dispute had already arisen as a result of the existence of the censorship order and the declaration sought was a direct and present challenge to this order. This Court found that the fact that the relief sought would relate to letters not yet written, and thereby affect future rights, was not in itself a bar to the granting of a declaration. The Court made it clear, however, at p. 832: ... that a declaration will not normally be granted when the dispute is over and has become academic, or where the dispute has yet to arise and may not arise. [Emphasis added by Dickson J.] A similar concern with the problems inherent in basing relief on the prediction of future events is found in the principles relating to injunctive relief. Professor Sharpe, Injunctions and Specific Performance (1983), clearly articulates the difficulties in issuing an injunction where the alleged harm is prospective, at pp. 30-31: All injunctions are future looking in the sense that they are intended to prevent or avoid harm rather than compensate for an injury already suffered. ... Where the harm to the plaintiff has yet to occur the problems of prediction are encountered. Here, the plaintiff sues quia timet - because he fears - and the judgment as to the propriety of injunctive relief must be made without the advantage of actual evidence as to the nature of harm inflicted on the plaintiff. The court is asked to predict that harm will occur in the future and that the harm is of a type that ought to be prevented by injunction. The general principle with respect to such injunctions appears to be that "there must be a high degree of probability that the harm will in fact occur": (Sharpe, supra, at p. 31). In Redland Bricks Ltd. v. Morris, [1970] A.C. 652, at p. 665, per Lord Upjohn, the House of Lords laid down four general propositions concerning the circumstances in which mandatory injunctive relief could be granted on the basis of prospective harm. The first of these stated [at p. 665]: 1. A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave damage will accrue to him in the future.... It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly. It is clearly illustrated by the rules governing declaratory and injunctive relief that the courts will not take remedial action where the occurrence of future harm is not probable. This unwillingness to act in the absence of probably future harm demonstrates the courts' reluctance to grant relief where it cannot be shown that the impugned action will cause a violation of rights. [Emphasis added.] [19] In this case the judge did not discuss the likelihood that representatives of the Law Society would attend Mr. McLean's residence in the future, or take possession of the phone in question. Mr. McLean has referred us to some of the documents contained in the fresh evidence he sought to adduce, saying they demonstrate an intention on the part of the defendants to enter his residence. [20] In my view, these documents do not establish the prospective likelihood of a threat to the legal interests of Mr. McLean so as to justify the injunction ordered, and as I explained, they accordingly do not meet the Palmer criteria for admission in this court. Further, all of the evidence falls far short of showing that the Law Society intends to attend at his personal residence in the future in a manner that would be a civil wrong entitling Mr. McLean to a remedy. For example, there is no evidence of watching, or besetting, or ongoing actionable trespass on the part of the defendants. Thus, even had the judge turned her mind to the correct test, the record before her (and indeed before this court) does not support the order in paragraph 9. [21] Likewise, in my view, the record does not support the order regarding Mr. McLean's personal cell phone. That declaratory order was made without reference to the correct test. Therefore there was no conclusion that Mr. McLean was likely to be required in the future to produce a personal cell phone for the Law Society or that there was otherwise a "cognizable threat" to his legal interests from the Discipline Committee's order. While there was evidence that his business e-mails referred to his Blackberry device, there is no evidence of a demonstrated interest by the Law Society in accessing a cell phone that was never used by Mr. McLean for business purposes. Nor was there evidence that the Law Society was likely to access his personal phone in a way that would violate Mr. McLean's rights. Last, there was no determination by the judge of the uses Mr. McLean made of the phone in issue. [22] I conclude that on this basis alone paragraphs 8 and 9 of the judge's order must be set aside. In consequence, paragraph 10 is redundant. On the premise that one does not re-state in an order what is plainly provided by statute, paragraph 10 should also be set aside. [23] Much of the parties' argument on this appeal engaged the scope of the Discipline Committee's authority under Rule 4-43, the meaning of its May 27, 2014 order, and issues concerning limits on the locations from which the Law Society may properly obtain records and documents of a member. No doubt these issues are of concern to the profession broadly, and to these parties in particular, because in this electronic age the practice of law is increasingly unconfined to the traditional professional office. [24] However, in my view, we should not resolve these issues in this case. Inherent in the issue is a challenge to the order made by the Disciplinary Committee which, as I earlier observed, is an issue usually challenged by judicial review pursuant to the Judicial Review Procedure Act. There is much to the Law Society's submission that the process used by Mr. McLean has had the effect of end-running the proper procedure in administrative law. However, the Law Society did not raise this point in the Supreme Court and so we do not have the benefit of the judge's conclusions on its procedural objection. Bringing a challenge to an exercise of a statutory power by the correct procedure is not purely cosmetic or simply a matter of form. The questions asked by a court reviewing a decision of an administrative body are different than the questions asked by a court interpreting legislation ab initio. Most frequently the decision of a decision maker subject to judicial review, including as to the meaning of its home statute, will be assessed on a standard of reasonableness whereas a court interpreting legislation must be correct. Further, judicial review allows a court to factor into its conclusion the concept of the decision maker's expertise. [25] In my view given my earlier conclusion that the injunction and declaration must be set aside in any event, this is not a case in which this court should wade into the interpretation of the Legal Profession Act and the Law Society Rules, absent the issue being first considered by judicial review. [26] Further, I am not satisfied that the necessary factual underpinnings are before us to admit of a definitive answer to the administrative law challenges to the May 27, 2014 order and Rule 4-43. It seems to me that there may have been a failure by all parties to distinguish, in their submissions, the difference between a right to investigate, which includes the right to demand all documents or records related to the law practice wherever they be, and the right to enter and search particular premises. If so, that question must be dealt with in the right case brought in the procedurally correct manner. Accordingly, I would not endorse the reasons of the judge on the issue of the scope of the Law Society's powers of investigation under Rule 4-43, and leave those questions to a different case. The Claims Against the Individual Plaintiffs [27] The second main issue on appeal is the judge's dismissal of the application for summary judgment by the individual defendants, excepting Mr. Dirk. Before the judge, the defendants contended that the actions against the individual defendants should be dismissed or, alternatively, significantly pruned. Before us they ask only that the action against those persons be dismissed. [28] The judge described the claim brought by Mr. McLean as follows: [41] In this case, the plaintiff alleges the pre-dominant purpose of the conspiracy is to harm him by making his continued practice of law impossible, including by conducting an illegal search of his office, and defaming him. As noted earlier, the amended notice of civil claim is a long document and contains irrelevant evidence and legal argument. The material facts are difficult to discern. However, the thrust of the plaintiff's complaint against the personal defendants is that they knowingly agreed to harm the plaintiff by conducting an investigation of his practice of law, including a search of his office, when they knew the impugned order under Rule 4-43 was unlawful and did not give them the authority to do so. [43] The personal defendants include employees of the Law Society, Mr. Dirk who is an investigator, and Mr. Riddell. The claims against them are that they conspired to injure the plaintiff and to circumvent the Legal Profession Act. [44] The plaintiff asserts that Mr. Riddell knowingly made an unlawful decision when he made the impugned order pursuant to the Law Society Rule 4-43 for an investigation of the books, records and accounts of the plaintiff and his law practice. The plaintiff alleges the defendant Mr. Dirk committed battery against him during the course of carrying out the investigation. [45] Ms. Kirby, Ms. Berger and Mr. Nallaweg are staff lawyers with the Law Society. The plaintiff alleges that Ms. Kirby and Mr. Nallaweg defamed the plaintiff and made false statements about him. The plaintiff alleges Ms. Berger made false accusations against him. Two staff lawyers employed by the Law Society, Brenda Adlem and Erin Berger are not named as defendants but are referred to the in the amended notice of civil claim as participating in the conspiracy. [46] Ms. Milz is a chartered professional accountant employed by the Law Society who was the team leader in respect of a trust compliance audit of the plaintiff's books and records. She attended the plaintiff's law office between April 23 and 30, 2013, to conduct a follow-up compliance audit and field work. The plaintiff alleges Ms. Milz defamed and threatened him during the course of the investigation. [47] The allegations against Mr. Bussanich and Mr. Grady are that they did not carry out their duties during the disciplinary process properly and thereby injured the plaintiff. The allegation against Ms. Armour is that she incited the conspirators and the Law Society's agents to enter the plaintiff's office during the investigation. [29] The judge did not identify the claim against Mr. Caldwell. A review of the notice of civil claim reveals that he is alleged to be a staff lawyer at the Law Society who dismissed a complaint against the defendant Mr. Dirk in furtherance of the conspiracy agreement that Mr. McLean alleged exists. [30] As I have described earlier, there were several requests for relief before the judge. Those challenging only the pleadings engaged Rule 9-5 of the Supreme Court Civil Rules. Rule 9-5 provides: 9-5 (1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that (a) it discloses no reasonable claim or defence, as the case may be, (b) it is unnecessary, scandalous, frivolous or vexatious, (c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or (d) it is otherwise an abuse of the process of the court, and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs. Admissibility of evidence (2) No evidence is admissible on an application under subrule (1)(a). [Emphasis added.] [31] The application to dismiss the claim against certain of the appellants was brought under the summary judgment rule, Rule 9-6 of the Supreme Court Civil Rules: 9-6 (4) In an action, an answering party may, after serving a responding pleading on a claiming party, apply under this rule for judgment dismissing all or part of a claim in the claiming party's originating pleading. (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. [32] In her reasons for judgment the judge first considered the applications to strike pleadings under Rule 9-5 and correctly stated the well known test under Rule 9-5(1)(a) for determining whether a claim discloses a cause of action. That test is whether, assuming the facts pleaded are true, it is plain and obvious the claim discloses no course of action: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959. On that question no evidence is admissible (Rule 9-5(2)). [33] In speaking of Rule 9-6, the judge said: [36] Rule 9-6(4) and (5) allows for dismissal when the court is satisfied there is no genuine issue for trial. Rule 9-6 is not available when there are disputed facts on the pleadings. [37] In L.D. (Guardian ad litem of) v. Provincial Health Services Authority, 2011 BCSC 628, rev'd on other grounds, 2012 BCCA 491, the chambers judge considered the scope of Rule 9-6 and noted there is no ability to weigh evidence, assess credibility or draw inferences against the party defending the application when determining whether there is a genuine issue for trial. The Court of Appeal approved of the proposition that an issue of law should only be decided under Rule 9-6 if the judge is satisfied there is no real dispute about the material facts and the issue of law is well settled by authoritative jurisprudence. Rule 9-7 is better suited for deciding novel points of law because there will be a more complete record. See also 4 Corners Properties Ltd. v. Boffo Developments (Smithe) Ltd., 2013 BCSC 1926, at paras. 20-24. [Emphasis added.] [34] She said later in respect to these Rules: [54] The defendants assert that the plaintiff's affidavits do not contain evidence which substantiates his conspiracy claim. They point to the fact that the individual defendants have all comprehensively and unequivocally denied the fact they participated in a conspiracy. [55] Having reviewed the pleadings and the affidavits I agree it is premature to determine the issue of whether the individual defendants entered into an agreement to extricate the plaintiff from the practice of law without lawful reason and in contravention of the Legal Professions Act. There is a dispute raised by the pleadings as to whether the individual defendants agreed to conspire against the plaintiff. Although the defendants have all deposed they did not conspire against the plaintiff to injure him, the plaintiff alleges they did, and points to certain facts he will be relying upon. [56] As noted earlier, in considering whether a reasonable claim is alleged under Rule 9-5 of the SCCR, the court must consider the issue on the basis that the facts as alleged are true: Canadian Bar Assn. v. British Columbia, 2008 BCCA 92. [57] The issue of whether the personal defendants agreed to knowingly use unlawful means, with the predominant purpose to injure the plaintiff cannot be decided on disputed facts. [63] ... Here, the plaintiff alleges the personal defendants knowingly acted unlawfully. If the plaintiff is able to prove the personal defendants were knowingly acting unlawfully, or in bad faith, or maliciously, the sections of the acts relied on by the defendants would not provide immunity. In my view, that issue cannot be determined pursuant to Rule 9-6 of the SCCR because there is disputed evidence. [64] For the reasons set out, I am of the view that the defendants' application to strike the claims against the personal defendants should be dismissed as premature. [71] The rules that the plaintiff relies on in this application are Rules 9-5 and 9-6 of the SCCR. As noted earlier, Rule 9-6 is not available when there are disputed facts on the pleadings. While evidence can be considered under Rule 9-6 in determining whether there is evidence to support a claim, the evidence cannot be weighed. [Emphasis added.] [35] The appellants contend that the judge misdirected herself in her application of Rule 9-6 by reasoning that the factual dispute in the pleadings precluded summary judgment in favour of the appellants. They say, rather, that although the judge was not allowed to weigh the evidence (that being a matter for a trial, summary or otherwise), she was required to consider "whether the plaintiff's contradictory allegations had sufficient support in the evidence he relied upon to found a genuine triable issue", and relying upon Skybridge Investments Ltd. v. Metro Motors Ltd., 2006 BCCA 500, and Canada v. Lameman, 2008 SCC 14, they say the pleadings should carry no weight in this assessment. [36] In my respectful view, the judge erred in principle in saying the rule was not available when there are disputed facts in the pleadings and in declining to consider the evidence on the Rule 9-6 application. In Lameman, the Supreme Court of Canada explained the importance of the summary judgment rule. This Rule has advantages to the administration of justice that are different from those provided by a summary trial such as we have long had in British Columbia. The court said: 10 This appeal is from an application for summary judgment. The summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial. 11 For this reason, the bar on a motion for summary judgment is high. The defendant who seeks summary dismissal bears the evidentiary burden of showing that there is "no genuine issue of material fact requiring trial": Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423, at para. 27. The defendant must prove this; it cannot rely on mere allegations or the pleadings: 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.); Tucson Properties Ltd. v. Sentry Resources Ltd. (1982), 22 Alta. L.R. (2d) 44 (Q.B. (Master)), at pp. 46-47. If the defendant does prove this, the plaintiff must either refute or counter the defendant's evidence, or risk summary dismissal: Murphy Oil Co. v. Predator Corp., (2004), 365 A.R. 326, 2004 ABQB 688, at p. 331, aff'd (2006), 55 Alta. L.R. (4th) 1, 2006 ABCA 69. Each side must "put its best foot forward" with respect to the existence or non-existence of material issues to be tried: Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434; Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14, at para. 32. The chambers judge may make inferences of fact based on the undisputed facts before the court, as long as the inferences are strongly supported by the facts: Guarantee Co. of North America, at para. 30. [37] In Century Services Inc. v. LeRoy, 2015 BCCA 120, we said concerning the differences between Rule 9-5 and 9-6: [32] Century Services sought summary judgment pursuant to Rule 9-6, ... In making this submission it relies upon Skybridge I do not consider, as a general approach, that it is helpful to conflate the various rules. Rule 9-6 is a rule distinct from Rule 9-5; a challenge to pleadings is effected by Rule 9-5, whereas Rule 9-6 allows for the summary determination of a claim in a procedure that engages evidence but does not assume the character of a summary trial. [33] The different character of the rules for summary judgment and striking pleadings was described well by Mr. Justice Low in International Taoist Church of Canada v. Ching Chung Taoist Association of Hong Kong Limited, 2011 BCCA 149: [9] Rules 9-5 and 9-6 are quite different. The former is an attack on the pleadings on the basis that the action or the defence, as pleaded, cannot succeed as a matter of law. It raises a matter of law only. The latter is an assertion that the claim or the defence is factually without merit. It raises an issue of fact only or, at most, an issue of mixed fact and law, unless under subrule (5)(c) the court determines that "the only genuine issue is an issue of law", in which case it "may determine the question [of law] and pronounce judgment accordingly." [10] Rule 9-5 is concerned only with the sufficiency of pleadings. ... An order striking a pleading could not be the basis for a res judicata defence in subsequent proceedings. [11] Rule 9-6 permits an application for summary judgment, either allowing a claim in whole or in part or dismissing a claim in whole or in part. It is clear that the result sought by the application would support a future pleading of res judicata. [38] With these passages in mind, I conclude that the judge applied the wrong test in her paragraphs 36, 55 and 71 in speaking of Rule 9-6. She did not ask whether Mr. McLean, in the words of Lameman and consistent with Rule 9-6, "put [his] best foot forward" with respect to the existence of material facts. It is clear from Lameman that he cannot rely upon mere allegations in his notice of civil claim to answer the evidence of the other side. [39] While I acknowledge that the judge described the affidavits before her, before commenting on Rule 9-6, I do not discern a consideration of the test under Rule 9-6. In my view it cannot be said she considered the affidavits against the standard of Rule 9-6, as is required. [40] What should be done? The appellants would have us dismiss the claims against the individual defendants, with the exception of the claim in assault and battery against Mr. Dirk. Mr. McLean refers to the discretionary nature of an order under Rule 9-6 (summary judgment), and says it was the appellants' burden to "negative the existence of a bona fide triable issue beyond a reasonable doubt". In his oral submissions, and to some degree in his factum, Mr. McLean says the nature of a conspiracy requires inferences to be drawn of the existence of the agreement, and that the events disclosed to the courts in the affidavits provide a foundation for the necessary inferences to be drawn. [41] I have had the opportunity to review the three affidavits relied upon by Mr. McLean before the judge, and the documents newly produced in the fresh evidence discussed earlier. Often this court, on a Rule 9-5(1)(a) case, will review the materials and if required, determine whether the test for striking pleadings has been met. [42] This case, however, requires an assessment of evidence against the Rule 9-6 test. That is inherently a matter for the trial court. The first impression assessment of evidence is not a function well suited to the role of an appellate court. Accordingly, I consider that the dismissal of the claim against the individual defendants (except Mr. Dirk) should be remitted to the trial court for consideration on the approach discussed in Lameman and Century Services. [43] For these reasons, I would allow the appeal by setting aside paragraphs 6, 8, 9 and 10 of the order and I would remit the appellants' Rule 9-6 application to the trial court for fresh determination. As I earlier stated, I would also dismiss the application to admit fresh evidence. "The Honourable Madam Justice Saunders" I AGREE: "The Honourable Madam Justice Neilson" I AGREE: "The Honourable Mr. Justice Willcock" Appendix The Rule 4-43 order 1. Pursuant to Law Society Rule 4-43, I order that an investigation be made of the books, records and accounts of Kevin A. McLean and Kevin A. McLean Law Corporation. 2. I direct Kevin A. McLean and Kevin A. McLean Law Corporation to: a. immediately produce and permit the copying of all files, vouchers, records, accounts, books and any other evidence regardless of the form in which they are kept, c. assist the Executive Director or designate to access, in a comprehensible form, records in the possession or control of Kevin A. McLean and Kevin A. McLean Law Corporation that may contain information related to the practice of Kevin A. McLean by providing all information necessary for that purpose, including but not limited to i. passwords, and ii. Encryption keys. 3. Kevin A. McLean and Kevin A. McLean Law Corporation must not alter, delete destroy, remove or otherwise interfere with any book, record or account within the scope of the investigation without the written consent of the Executive Director. 4. This order extends to all electronic records and process set out in the Attachment to this Order will be followed. Rule 3-5.01(1) 3-5.01 (1) Subject to subrules (2) and (3), a lawyer who is required under Rule 3-5 [Investigation of complaints] or 4-43 [Investigation of books and accounts] to produce and permit the copying of files, documents and other records, provide information or attend an interview and answer questions and who fails or refuses to do so is suspended until he or she has complied with the requirement to the satisfaction of the Executive Director. Rule 3-5(6) 3-5(6) A lawyer must cooperate fully in an investigation under this Division by all available means including, but not limited to, responding fully and substantively, in the form specified by the Executive Director (a) to the complaint, and (b) to all requests made by the Executive Director in the course of an investigation. Rule 3-5(6.1) (6.1) When conducting an investigation of a complaint, the Executive Director may (a) require production of files, documents and other records for examination or copying, (b) require a lawyer to (i) attend an interview, (ii) answer questions and provide information relating to matters under investigation, or (iii) cause an employee or agent of the lawyer to answer questions and provide information relating to the investigation, (c) enter the business premises of a lawyer (i) during business hours, or (ii) at another time by agreement with the lawyer. Rule 4-43 4-43 (1) If the chair of the Discipline Committee reasonably believes that a lawyer or former lawyer may have committed a discipline violation, the chair may order that an investigation be made of the books, records and accounts of the lawyer or former lawyer, including, if considered desirable in the opinion of the chair, all electronic records of the lawyer or former lawyer. (1.1) When electronic records have been produced or copied pursuant to an order under this Rule, the lawyer concerned may request that a specific record be excluded from the investigation on the basis that it contains personal information that is not relevant to the investigation. (1.2) The lawyer must make a request under subrule (1.1) in writing to a person designated under subrule (2) within 7 days of receiving a copy of the order under this Rule. (1.3) An order under this Rule that permits the production or copying of electronic records must provide for a method of evaluating and adjudicating exclusion requests made under subrule (1.1). (1.4) A request under subrule (1.1) must be refused unless the records in question are retained in a system of storage of electronic records that permits the segregation of personal information in a practical manner in order to comply with the request. (2) When an order is made under subrule (1), (a) the Executive Director must designate one or more persons to conduct the investigation, and (b) the lawyer or former lawyer concerned must (i) immediately produce and permit the copying of all files, vouchers, records, accounts, books and any other evidence regardless of the form in which they are kept, (ii) provide any explanations that the persons designated under paragraph (a) require for the purpose of the investigation, (iii) assist the persons designated under paragraph (a) to access, in a comprehensible form, records in the lawyer's possession or control that may contain information related to the lawyer's practice by providing all information necessary for that purpose, including but not limited to (A) passwords, and (B) encryption keys, and (iv) not alter, delete, destroy, remove or otherwise interfere with any book, record or account within the scope of the investigation without the written consent of the Executive Director.