Sigalet v. Cedrone Law Corporation

2017 BCSC 1458 Sigalet v. Cedrone Law Corporation

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sigalet v. Cedrone Law Corporation, 2017 BCSC 1458 Date: 20170818 Docket: D29543 Registry: Chilliwack Between: Trina Sigalet Plaintiff And Marco D. Cedrone, Cedrone Law Corporation and Cascade Law Corporation Defendants Before: The Honourable Mr. Justice Armstrong Reasons for Judgment Counsel for Plaintiff: S.J. Henshaw Counsel for Defendants: J.K. Lamb Place and Dates of Trial/Hearing: Chilliwack, B.C. June 5, 6, 2017 Place and Date of Judgment: Chilliwack, B.C. August 18, 2017 Introduction [1] In this solicitor's negligence case, the plaintiff has elected trial by jury at a trial set for nine days commencing on October 2, 2017. The defendants seek an order under R. 12-6(5)(a)(ii) to strike the jury notice. [2] Since this application was argued, I have been informed that the defendants have admitted liability and that the only question to be resolved at trial relates to damages. Background [3] The plaintiff was injured in a car accident on April 28, 2007 when she was 17 years old and in Grade 12. [4] In October 2007, the plaintiff and her mother attended the offices of Marco Cedrone and instructed Mr. Cedrone to pursue Ms. Sigalet's claim for personal injury. The plaintiff's mother agreed to act as litigation guardian and signed a contingency agreement with the defendant. [5] By October 2007, the plaintiff was enrolled at

Trinity Western University with a long-term career goal of becoming a physician. [6] By January 2008 the plaintiff was diagnosed with "wide-spread chronic pain disorder" and physical symptoms including headaches, neck pain, back pain, sleep disturbance and fatigue. An imaging study indicated she had suffered multiple disc hernias. [7] On June 22, 2009, the plaintiff and her mother met with the defendant to discuss the progress of her case and informed him of upcoming medical appointments. The plaintiff contends Mr. Cedrone did not discuss settling her claim. [8] She said that the following day, the defendant telephoned her about settlement. He spoke with the plaintiff and her mother but did not discuss settlement. She did not instruct him to settle her claim. [9] Subsequently, she learned from counsel that her claim had been settled without her instructions. On June 29, 2009 she signed a full and final release of her claim for $42,500. She received $31,026 after fees and disbursements were paid. She says that she did not know that she had any choice when signing a Full and Final Release of Claims document prepared by ICBC. [10] She said that at the time of settlement, she was waiting for further medical appointments with specialists and her diagnosis had not been confirmed. [11] Subsequently, the plaintiff's ongoing chronic pain continued and interfered with her schooling. She

completed her undergraduate degree with a major in biology one semester behind her peers. Her grades were not strong enough for her to attend medical school, pursuant to her pre-accident plan. According to Ms. Tanya Percy, an occupational therapist, the plaintiff reported that the most challenging aspects of her degree related to the physical demands associated with studying and lab work, due to the demands for prolonged sitting and standing and their effects on her neck and back postures (Work Capacity Evaluation at p. 23). Dr. van Rijn, a rehabilitation specialist, also opined in his report dated September 29, 2010 that the "physical demands following successful entry and during the initial years of education necessary to obtain an MD degree might present considerable challenges for her and for the teaching faculty" (pp. 10-11). [12] She subsequently applied to law school but was not accepted and chose not to pursue a legal career, in part because of difficulties she had with prolonged sitting and studying. [13] In August 2014, the plaintiff followed in her mother's footsteps to become a registered nurse. She abandoned pursuit of a nursing career due to its ongoing physical demands and the effects of her auto accident injuries. [14] The plaintiff now works for the RCMP as a dispatch operator where she does shift work. She is struggling to manage her pain and fatigue. [15]

Medical evidence indicates that Ms. Sigalet is permanently affected by her injuries and faces a poor prognosis and restricted lifestyle. She has been in encouraged to avoid heavy lifting as well as long periods of standing or sitting. Parties' Positions The Defendants [16] The Defendants state in the Notice of Application that: 7. Adjudication of this matter will involve a trial within a trial to assess what would have happened if the plaintiff's motor vehicle claim had not settled in June 2009. This will involve consideration of when the underlying claim would have settled or gone to trial and what the plaintiff would have received for the underlying claim if it had not been settled in June 2009. The plaintiff has pleaded that the plaintiff has suffered financial loss based on a specific range of non-pecuniary damages. The jury is not well-positioned to evaluate what an appropriate award of damages would have been if the underlying claim did not settle when it did. Evaluating the plaintiff's economic loss is far different than asking a jury to award damages for a personal injury suffered. [17] Notwithstanding the defendants' admission of liability, they still plead that their negligence did not cause or contribute to any damages suffered by the plaintiff, that the plaintiff failed to mitigate her damages and that the plaintiff's damages occurred as a result of her

instructions, actions or inaction and/or her mother's advice. They also suggest a post-accident slip and fall may have compromised her damages claims. [18] They argue that the questions to be decided at trial include: a. when the action would likely have gone to trial or been settled, absent the settlement made in 2009; b. what amount would likely have been payable at that time, either through settlement or trial, measured by an assessment of probabilities of a future hypothetical event; c. what material facts need to be assessed to measure the loss of opportunity based on the hypothetical trial or settlement dates; and d. whether the defendants' entitlement to a fee ought to be deducted from the amount awarded. [19] Overall, they submit that solicitor's negligence cases involve a level of complexity best left to trial judges alone because the issues are too complex and interdependent for a jury to decide. [20] The defendants refer to Rose v. Mitton (1994), 111 D.L.R. (4th) 217 (N.S.C.A.), leave to appeal ref'd [1994] S.C.C.A. No. 132 [Rose], a case in which a solicitor negligently settled a plaintiff's personal injury claim. The question in Rose was whether damages ought to be assessed as the difference between the settlement amount and the amount that would have awarded to the plaintiff as of the date of the settlement or as of the date of the application, having regard to

the plaintiff's medical condition at that time. The chambers judge determined that the proper date was the date of settlement. The Court of Appeal agreed and dismissed the appeal. In separate concurring reasons, Hallett J.A. of the Nova Scotia Court of Appeal said that damages should be assessed as the difference between the amount a competent solicitor would have recommended considering all of the circumstances and the amount of the actual settlement. [21] The defendants also refer to Startup v. Blake and MacIsaac & Co., 2001 BCSC 8 [Startup]. In that case, Kirkpatrick J. (as she then was) framed the timing of an assessment of damages in a solicitor's negligence claim as follows: [97] Mr. Startup advances a claim for past and future income loss, non-pecuniary damages and cost of future care. He says the loss amounts to between $649,666 to $790,078. [98] In assessing damages, I am assessing the probabilities of a hypothetical future event, namely what a court would have awarded Mr. Startup if he had not settled his claim but had proceeded to trial. [22] In Startup, Kirkpatrick J. did not consider Rose but assessed damages on the "notional trial date" and what she would have expected a jury to award at that time: paras. 99-107. This finding is contrary to the Nova Scotia Court of Appeal's conclusion in Rose where the court determined that damages should be assessed on the date

of the breach. [23] Rather than attempt to resolve this conflict, which the defendants characterized as a question of law, the defendants argue that the conflicting authorities on how to properly assess damages highlight the complexity of this case and its inappropriateness for a jury. [24] The defendants also rely on Singleton v. McKinsey Fujisawa LLP, 2014 BCSC 1543 [Singleton]; Persall v. Buxton, 2012 BCSC 347 and Cedarland v. Bilkey, 2001 BCSC 1152 for the principle that solicitors' negligence cases engage sufficient complexity that a jury would be incapable of dealing with the issues raised. [25] Finally, the defendants argue that it is inappropriate for a jury to hear evidence of the plaintiff's post-June 2, 2009 medical status and that the inclusion of this information in the pleadings adversely impacts the ability of a jury to try this case. They point to the portion of the plaintiff's pleadings that mention a range of non-pecuniary damages and say that since the BC Court of Appeal has held that it is inappropriate to instruct juries on the appropriate range of general damages or awards made in seemingly analogous cases, it is improper to comment on or provide this information to a jury: Brisson v. Brisson, 2002 BCCA 279 at paras. 62, 64 and 65 [Brisson]. The Plaintiff [26] The plaintiff set out the basis of her claim as follows: 56. As a result of the respective

Defendants' breach of contract and breach of their fiduciary duty, the Plaintiff received deficient compensation for her ongoing chronic pain condition to which she was entitled in law, and/or will continue to suffer financial loss as follows: a. loss of proper damages for pain and suffering ranging from $125,000.00 to $175,000.00; b. special expenses to date that are continuing to accumulate; c. wage loss from graduation from high school to the present; d. future care costs including home keeping assistance and future assistance for childcare; and e. loss of income earning capacity due to loss of professional careers and due to physical and cognitive demands. [27] The plaintiff argues that she suffers from chronic pain from a very serious car accident that has rendered her partially disabled. She says that the most likely date for assessment of her injuries would be 2014. She contends it is also possible that the appropriate trial date would be 2017: Mackey v. British Columbia, 2016 BCSC 1333. She claims determination of this date is a question of law for the trial judge. [28] With respect to the question of the appropriate date for the assessment of damages, she argues that this is also a question of law for a trier of law to decide. She refers to Kelly v. Lundgard, 2001 ABCA 185 [Kelly] in which the Court dealt with a claim against a physician who negligently reported on a

plaintiff's fertility prospects caused by an accident. The case was settled on the basis of those reports which were, in fact, inaccurate. In Kelly the Court of Appeal affirmed that the appropriate measure of damages is the amount that would have been awarded if, with reasonable diligence the action had come to trial or settled: Kelly at para. 182 [29] However, the Alberta Court of Appeal referred to Rose and said "there may be circumstances where it would be appropriate to consider the date of settlement" if there was evidence that a settlement would likely have occurred at a different date, However would be required. I was not informed if there is any evidentiary basis to support an earlier date. [30] She argues that a jury can fairly and competently assess damages based on her current medical state and that the defendants have not proven that justice to the parties would be better served by the discharge of the jury: Cowles v. Balac (2006), 83 O.R. (3d) 660 (C.A.) at para. 37 [Cowles]. She says a jury can and should decide: i. when the trial of this matter would have occurred had it not settled, which she suggests would likely be in 2014; and ii. what amount of damages might be awarded for the lawyer's errors. [31] She points to Franson v. Caladarella, 2014 BCSC 853 as a case where juries have been found capable of understanding the use of hypotheticals and contingences. In

that case, Fisher J. found a jury to be capable of understanding the industry-specific framework for the compensation of hockey players in the NHL, particularly in light of the fact that expert evidence would be led about the technical details of players' contracts, the ways injuries impacted the plaintiff's rights under these agreements, the plaintiff's performance and compensation as a hockey player compared to other similar players, as well as the unique physiological, medical, mental and emotional issues confronting hockey players: paras. 19-29. [32] In the alterative, she suggests that the Court adopt a "wait and see" approach. In other words, she recommends that this case proceed with a jury and decide whether the discharge of the jury is warranted after a substantial portion of evidence has been heard: Cowles at para.

70. Law [33] Rule 12-6(3) sets out: Notice requiring jury trial (3) Subject to Rule 15-1 (10) and subrules (2) and (4) of this rule, a party may require that the trial of an action be heard by the court with a jury by doing the following: (a) within 21 days after service of the notice of trial but at least 45 days before trial, (i) filing a notice in Form 47, and (ii) serving a copy of the filed notice on all parties of record; (b) at least 45 days before trial, paying to the sheriff a sum sufficient to pay for the jury and the jury process. [34] Rule 12-6(5) sense of the basis for refusing a jury: Court may refuse jury trial (5) Except in cases of defamation, false imprisonment and malicious prosecution, a party on whom a notice under subrule (3) has been served may apply (a) within 7 days after service for an order that the trial or part of it be heard by the court without a jury on the ground that (i) the issues require prolonged examination of documents or accounts or a scientific or local investigation that cannot be made conveniently with a jury, (ii) the issues are of an intricate or complex character, or (iii) the extra time and cost involved in requiring that the trial be heard by the court with a jury would be disproportionate to the amount involved in the action, or (b) at any time for an order that the trial be heard by the court without a jury on the ground that

the trial relates to a fast track action or to one of the proceedings referred to in subrule (2). [35] The capacity of modern juries should not be underestimated. As N. Smith J. stated in Bartram v. GlaxoSmithKline Inc., 2016 BCSC 1409 [Bartram]: [11] the court has repeatedly acknowledged both the intelligence of contemporary juries and their ability to assess properly presented expert evidence: MacKinnon v. Ebner, [1997] B.C.J. No. 364 at para. 26 (S.C.); Cliff v. Dahl, 2012 BCSC 276 (CanLII) at para. 28. [36] As Griffin J. noted in Han v. Cho, 2008 BCSC 1192: [15] The onus is on the applicant seeking to set aside a jury notice to show that the party who selected trial by jury is not entitled to that mode of trial: Creasy v. Sweny (1942), 57 B.C.R. 457, [1942] 3 W.W.R. 457 (C.A.). [37] This onus is not easily met; in Bartram, N. Smith J. reaffirmed the plaintiff's presumptive right to a civil jury trial and the onus on a party seeking to strike a jury notice that is "not easily satisfied", citing MacPherson v. Czaban, 2002 BCCA 518 at para.

17. Discussion [38] The question on this application is whether the defendant has met the heavy onus of proving that the issues to be decided in this case are so complex that the court should exercise its discretion to obviate the plaintiff's prima facie right to have a jury decide the issues. [39] Because the question of liability has been settled, there will be no need to conduct a trial within a trial. [40] I do not agree with the plaintiff that the question of when damages should be assessed is a question of law. In Kelly, Conrad J.A. said that damages should be assessed as of the date that the trial might have "proceeded with reasonable diligence": see paras. 182 and 187. This would be a factual inquiry turning on expert opinion evidence or a judge's ability to form their own opinion on the issue. [41] In Kelly, Conrad J.A. referred to Rose on the point of assessing damages closer to the actual settlement date. I accept that the assessment date in professional negligence claims is, at best an estimate and these estimates of future trial or settlement dates may be informed by evidence from the parties. There may be cases where it is possible to assess damages as of an earlier settlement (before the estimated date of trial) if there is some evidence on the point. In my view, this analysis of potential trial dates or settlement possibilities involves considerable

complexity. [42] The issue to be determined at trial is not simply an assessment of damages resulting from the accident injuries; rather the question will be quantification of the plaintiff's loss of economic opportunity due to her solicitor's negligence in prematurely settling the case or settling in the absence of her instructions to do so. [43] There are significant challenges in conducting trials concerning solicitor's negligence that might not be faced in accident related damage assessment cases where the tortfeasor causes a plaintiff's injuries. In Nichols v. Warner, Scarborough, Herman & Harvey, 2009 BCCA 277 [Nichols], the Court of Appeal came to a similar conclusion: [26] In a case of this kind, the court is required to essentially conduct a trial within a trial to the extent possible: the first to determine whether the solicitor has been negligent in respect of the litigation undertaken; the second to determine, if so, what loss the solicitor's negligence has caused the client. In some instances, whether there has been a loss and what it was can be readily established. In others, however, the prospect of success and recovery may not be easily shown due to uncertainties of proof and perhaps legal consequences inherent in any given case. Indeed, the mere passage of time may render the conduct of a trial within a trial virtually impossible. What the court must do in such

circumstances where the prospect of recovery in the original action is inconclusive is to quantify as best it can the value of what the authorities regard a lost opportunity. The Alberta Court of Appeal summarized the approach to be taken in Fisher v. Knibbe, 1992 ABCA 121 (CanLII), [1992] 5 W.W.R. 385 at para. 12, 3 Alta. L.R. (3d) 97: After conducting the "trial within a trial" to determine what damages, if any, a negligent solicitor is liable for missing a limitation period, three results are possible. First, the trial judge could find that had the case gone to trial the plaintiff would have been successful and in such case 100 per cent of the lost damages would be awarded against the solicitor. Second, the trial judge could find that the plaintiff would not have been successful therefore only nominal damages may be awarded against the solicitor. Finally, where time has passed to such an extent that a "trial within a trial" would be impossible, then the court must to the best of its ability calculate the value of the opportunity lost to the plaintiff and award damages against the solicitor on that basis. [27] At least in this jurisdiction, the threshold for recovery of a lost opportunity appears to be one of a "reasonable possibility" that something was in fact lost. That was the term used in Papageorgiou v. Seyl (1990), 1990 CanLII 779 (BC CA), 45 B.C.L.R. (2d) 319 (C.A.)

at 326. In Trinden Enterprises Ltd. v. Ramsay, 2009 BCCA 125 (CanLII) at para. 22, Graybriar Industries Ltd. v. Davis & Co. (1990), 1990 CanLII 1572 (BC SC), 46 B.C.L.R. (2d) 164 (S.C.), aff'd (1992), 1992 CanLII 1838 (BC CA), 72 B.C.L.R. (2d) 190 (C.A.), was cited. There, on a consideration of the authorities, it was said (at 193) the client is entitled to an award if the claim said to have been lost is "not merely 'fanciful'" but is established as a possibility. Once the threshold is met, it remains for the court to assess the strength of the possibility, having regard for the exigencies of the litigation. [44] A jury might encounter a number of other difficulties in assessing damages due to complexities associated with the case, including in: i. Assessing damages that a notional jury would award on a notional trial date (possibly in 2014): see Startup; ii. Understanding the approach to settlement negotiations in personal injury actions and assessing damages on the basis of lost opportunity: see Nicols; iii. Dealing with assessment of non-pecuniary damages in the context of the plaintiff's Notice of Civil Claim pleading that loss of "proper damages for pain and suffering range from $125,000-$175,000". This pleading implies that other decisions of the court must be referred to and commented on by parties and the court: see Brisson; iv. Assessing that part of the plaintiff's

loss that is "more properly attributable to and caused by the instructions, actions or inactions of the plaintiff and her other advisors, including Mrs. Sigalet": see Response to Civil Claim at para. 27; v. Deductions under s. 98 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231; including the determination of the tax rate to be used in achieving net income rather than gross income loss; vi. How to take into account questions of legal fees otherwise payable to the solicitor under the parties' retainer agreement; vii. Determining differences in assessments of non-pecuniary losses and future income loss claims between 2009 and 2014 or 2017; and viii. Assessing how the plaintiff's post-accident slip and fall might have contributed to her solicitor's advice about her settling or going to trial or reduced the damages the defendants were willing to pay. [45] I accept the plaintiff's argument that juries are capable of assessing many different types of claims, evidence and hypothetical propositions in personal injury damage assessment cases. However, I am concerned that the issues and analyses inherent in a solicitor's negligence case involving a negligent compromise of a personal injury claim involve more complexity and nuances than those extant in other types of tort claims. [46] By comparison, a trial judge would be in a relatively better position to make findings of fact on

the issues due to his or her experience as a trial judge and would be better equipped to wrestle with some of the more subtle challenges related to timing of claims or assessment of the ranges of damages proposed by the plaintiff in this case. A trial judge is capable of explaining the law to juries but charging a jury on the multiplicity of complex issues would be onerous and the jury's task could be overwhelming. [47] As an example, a trial judge may be able to determine, as Kirkpatrick J. did in Startup, what a notional trial date might have been, even in the absence of evidence led on this point, simply due to his or her experience. A jury would likely find the task of determining when the trial or settlement might have occurred relatively more difficult, if not impossible. This jury's chore could also be unduly complicated when considering differences in the proper awards for non-pecuniary damages as alleged by the plaintiff as between hypothetical trial dates in 2014 as opposed to in 2017 or some other date, without being instructed on similar cases. In Brisson the BC Court of Appeal explicitly advised against comments or references to quantum in jury trials. [48] In the end I conclude reliance on the plaintiff's pleadings of specific non-pecuniary damage claims must linked to an evidentiary basis which should not be part of a jury's function. I find that the manner in

which the case is pled increases the complexity and these issues cannot likely be adequately remedied by clear judicial instructions. h specifically, the Court of Appeal has said comments about quantum of damages or range of damages in ordinary automobile accident damage assessment cases are not appropriate [49] I find that the defendants have established that the complexity of issues relating to measuring historical economic losses of opportunity resulting from the solicitor's negligence or contract breach coupled with the pleadings relied on by the plaintiff and other matters I have referred to above make this case unsuitable to be tried by a jury. I find the jury's task would be overly difficult and complex and that the order requested by the defendants should be granted. Accordingly, I order that the jury notice be struck. "Armstrong J."