Wednesday, July 7, 2010

Holland v. Douglas - Suing Opposing Counsel for "lawyer misconduct" Leads to Finding of "abuse of the court" ~ By Corey D. Steinberg

Holland v. Douglas 2010 BCCA 345 - July 5, 2010

This was an appeal from an Order handed down by a judge in January dismissing the Claim of the Plaintiffs on the basis that the Statement of Claim must be struck as disclosing "no reasonable claim" at law.

The underlying action was framed in medical malpractice, but this appeal was specifically directed at the conduct of defence counsel, Ms. Douglas, and to the opinions expressed by Dr. Joschko, an expert who had prepared a report for the Defence. The self-represented plaintiff, Ms.Holland, brought this Appeal (in her words) to “deal with misconduct in court”.

She argued, despite direction by the Court to the contrary, that the Court had deprived the plaintiffs of their “day in court” and had swept the allegations of “lawyer misconduct” under the rug. Her alternative argument was that Madam Justice Levine of the Court of Appeal had committed a “deliberate act of misconduct” by “refusing” to hear the matter by way of an “evidentiary hearing”

Madame Justice Newbury wrote the unanimous judgment for the court, which included Madame Justice Kirkpatrick and Justice Groberman, concluding that:

[13] Ms. Holland made no attempt to come to grips with the fact, of which there can be no doubt, that with few exceptions (none of which applies here), a lawyer owes a duty of care only to his or her client and cannot be sued for consequences that may be suffered by other parties as the result of the lawyer’s doing his or her job. Ms. Holland simply refuses to recognize this fact. Similarly, Ms. Holland steadfastly insists that her son is under a disability and has a constitutional right to have counsel paid for by “the state” to act for him in the private litigation that Ms. Holland has pursued on his behalf and her own behalf.

[14] I have no doubt that Truscott J. was correct in concluding that the plaintiffs’ statement of claim disclosed no cause of action and indeed was an abuse of the court. I must also say in response to Ms. Holland’s complaint that she has not had her “day in court”, that the purpose of R. 19(24) is to ensure that claims that fail to disclose a viable cause of action or are frivolous, vexatious or abusive do not take up valuable trial time in the Supreme Court of British Columbia. The defendants’ application pursuant to R. 19(24) was an application in the normal course and the plaintiffs’ claims were not ‘swept under the rug.’ The outcome reflects the fact that the claims have no merit.

Link to full judgment: