TBB/jmj 2003 SKQB 197 Q.B.G. A.D. 1999 No. 3748 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: LYNNE PALMER-JOHNSON and MICHAEL TOCHOR, E. F. ANTHONY MERCHANT MERCHANT LAW LINE REFERRAL INC. DEFENDANTS Lynne Palmer-Johnson representing herself Alan G. McIntyre for the defendants JUDGMENT ZARZECZNY J. April 25, 2003 NON-SUIT APPLICATION [1] After the completion of the plaintiff’s case in this civil trial by judge and jury, counsel for the defendants presented this motion for non-suit pursuant to Rule 278A of The Queen’s Bench Rules. That rule provides as follows: 278A At the close of the plaintiff’s case the defendant may, without being called upon to elect whether he will call evidence, move for dismissal of the action. BACKGROUND CIRCUMSTANCES [2] This case involves a professional negligence claim being advanced by the plaintiff against her former solicitors, Michael Tochor and E. F. Anthony (Tony) Merchant (as well as a related corporate defendant). [3] The defendants were engaged and retained to represent and defend the plaintiff as her lawyers in respect of four charges laid by the College of Physicians and Surgeons against her; three charges alleging that she engaged in the practice of medicine and one charge that she provided medical treatment not being registered under The Medical Professions Act, 1981, S.S. 1980-81, c. M-l0.1, contrary to s. 80 of that Act (the “charges”). The Information was sworn and dated June 1, 1995. The defendant, Michael Tochor primarily undertook her defence. The trial took place in 1997 and on January 21, 1998, Provincial Court Judge Bekolay rendered written judgment finding the plaintiff accused guilty upon all four charges. fine of $1,500.00 was imposed in respect of each count to total of $6,000.00. [4] After this verdict the plaintiff discharged her solicitors and thereafter, as self-represented appellant, appealed the Provincial Court judgment to the Court of Queen’s Bench, the Court of Appeal and ultimately she sought leave to appeal to the Supreme Court of Canada, all appeals and applications being dismissed. She then commenced this action against her solicitors for negligence. She elected trial by judge and jury and to be self-represented. This trial began April 21, 2003. [5] The plaintiff’s Statement of Claim alleges various particulars of negligence and unprofessional conduct against the defendant lawyers. It claims that as result of these actions the plaintiff “was convicted improperly” (paragraph of the Statement of Claim). Particulars of negligence were set out in paragraph of the claim and the plaintiff sought to support these by the evidence that she and her husband, together with number of other witnesses gave at the trial. [6] The particulars of negligence the plaintiff pleaded against the defendants and which she sought to prove at the trial are principally as follows: (a) Allegations that the defendant Tochor failed to call witnesses at the plaintiff’s trial referred to him by the plaintiff and which the plaintiff considers could have provided evidence at the trial helpful to her case; (b) That the defendant Tochor failed to adequately or competently cross-examine the principal witness for the College of Physicians and Surgeons namely, Ms. Karen Clinton-Walker to impugn her character or credibility and failed to call available witnesses to do so; (c) That the defendant Tochor failed to submit written argument to the Provincial Court; (d) That Mr. Merchant undertook to personally handle the plaintiff’s case and in breach of that retainer/agreement assigned the matter to Mr. Tochor. [7] In respect of item (c) the evidence is clear that written argument was filed with the Provincial Court from the record of that Court’s proceedings notwithstanding the plaintiff some years later could not find copy on the Provincial Court file. The plaintiff still does not accept the clear and obvious evidence of its filing. The Statement of Claim does not plead breach of contract against Mr. Merchant in respect of item (d) above. If, read in its widest sense, the Statement of Claim can be taken to allege negligence on Mr. Merchant’s part for assigning the case to Mr. Tochor or that Mr. Merchant, having accepted the engagement, is vicariously or jointly liable for Mr. Tochor’s negligence, that claim falls to be determined upon this non-suit application upon the same analysis as applies generally to the claims of negligence against Mr. Tochor. [8] At the trial the plaintiff and her husband testified as did number of other non-related witnesses. Their testimony focussed upon the nature of the plaintiff’s consultative business giving rise ultimately to the charges against her. number of witnesses were called who were familiar with Ms. Palmer-Johnson’s work and the nature of the services which she provided to them or their immediate relatives. Ms. Palmer-Johnson testified that she brought these witnesses to the attention of Mr. Tochor prior to her trial and advised him of their availability to “witness for her” and what they could say. She testified that none of the witnesses were called or interviewed by the defendants prior to the trial nor were they called as witnesses at the trial. [9] The College of Physicians and Surgeons called only one witness in its prosecution of the charges against Ms. Palmer-Johnson namely, Ms. Walker. Mr. Pat O’Byrne, Ms. Walker’s former probation officer testified at this trial that she had lengthy criminal record and that in his dealings with her he found her to be untruthful on number of occasions. The plaintiff testified that his information and the availability of this witness was brought to the attention of Mr. Tochor as was his availability to give evidence at the original trial. Mr. O’Byrne was not contacted by nor did Mr. Tochor call him to testify at trial. It is these matters along with Mr. Merchant’s failure to personally conduct Ms. Palmer-Johnson’s defence that constituted, in the main, the substantive basis for the plaintiff’s negligence claim against the defendants. NON-SUIT TEST [10] The test to be applied by this Court in adjudicating upon an application for non-suit in the circumstances was recently addressed by the Saskatchewan Court of Appeal in the case of Reid v. Kraus et al., 2000 SKCA 32 (CanLII), (2000), 189 Sask. R. 122. That case was, as is the one presently before the Court, claim of negligence by plaintiff against his solicitors tried by judge and jury. The decision of the trial judge to grant the non-suit was appealed and at para. 13 of the Appeal Court decision the following statement of the test for non-suit is set out: [13] am satisfied the defendant correctly interpreted the test. In Jacques v. The City of Regina (1998) Q.B. 3874/1993 (unreported) Armstrong J. stated the test another way at p. 4: “The test for non-suit is not ‘any evidence’ but ‘sufficient evidence’ and this has been the test since sometime in the Nineteenth Century. See Cross on Evidence, 5th Edition, page 77, where he is dealing with withdrawal of an issue from the Jury.” At para. 12, p. 125 of Reid, the Court of Appeal quotes with acceptance and approval the statement of the non-suit test articulated in Re/Max Crown Real Estate Ltd. v. Ries Estate (1996), 1996 CanLII 7093 (SK QB), 143 Sask. R. 120 at 123 (Q.B.): ... [T]he test in determining an application of this nature is whether there is any evidence, if left uncontradicted, to satisfy reasonable person.... [12] The matter is further addressed as follows at paras. 17 and 18 of the Reid decision, supra: [17] The record discloses evidence, which if left uncontradicted, upon which reasonable jury (i.e. trier of fact) properly instructed, could find negligence and causal connection between that negligence and the alleged injury and consequent damages. [18] The trial judge by weighing the evidence and deciding the substantive issue of causation, applied the higher test of the balance of probabilities rather than the lower standard for non-suit. The plaintiff’s argument is persuasive and must prevail. [13] The Nova Scotia Court of Appeal had occasion to consider and apply this test for non-suit in negligence case against lawyer in the case of Barrett v. Reynolds (1994), 30 C.P.C. (3d) 383 at 388. At para. 13 of this judgment the court put the matter in this way: 13 The trial judge in this case erred by concluding that the appellants had not established prima facie case on the evidence. The issue before him on the motion for nonsuit was whether there was duty of care owed by the respondent to the appellants and, if so, whether it was breached and caused the appellants to suffer damage. The standard of care is that expected of reasonably competent solicitor. If the plaintiff presented evidence from which inferences could be drawn that there was duty of care, that the standard of care had not been met and that damages resulted, the motion should have been denied.... LACK OF EXPERT EVIDENCE [14] The plaintiff did not present any witness to be qualified as an expert to provide opinion evidence to the jury either with respect to the standard of care imposed upon lawyers undertaking the task of representing a client in her circumstances nor with respect to the application and alleged breach of that duty of care by the defendants. No expert opinion evidence was presented by the plaintiff with respect to causation, that is, whether or not it was more probable than not that had the defendants not breached their duty of care to the plaintiff, as she claims, the results of the proceedings at the original trial would have been different, namely, an acquittal, on one or more of the charges. These three issues namely, (1) the standard and duty of care, (2) the breach of the standard and duty of care and (3) causation are fundamental to this trial and the plaintiff’s claims. The latter two would be the main issues which the jury would have to decide in this case. [15] There is no evidence that has been presented by the plaintiff in respect of these fundamental legal issues to assist the jury in respect of their prospective deliberations and ultimate verdict in this case. [16] It is well settled that the issue of the standard of care that is applicable in professional negligence cases is question of law and to that extent it is the responsibility of the trial judge to articulate that standard as part of the judge’s charge to the jury. Nevertheless, simple articulation of the standard of care in professional negligence case such as this may well be meaningless or at best inadequate to assist in the jury’s task without some expert opinion to explain what the standard requires and how it applies to the work of these trial lawyers. [17] The plaintiff’s claim, and the evidence she did present at this trial, deals with the very complicated and difficult issue of the duty of care owed and the breach of that duty by the defendant lawyers in respect of the preparation for and conduct of the plaintiff’s trial in what is known as prosecution for quasi-criminal statutory offence(s). The first threshold issue to be considered and answered by the jury will be whether or not any of the defendants breached their professional duty of care to the plaintiff. This necessarily involves consideration by the jury of the professional judgment exercised by the defendants in choosing to contact and/or call witnesses available to the plaintiff to testify for her and the legal admissibility of their evidence at the trial. As well the advisability of calling their evidence needs to be carefully considered. Sometimes witness may have some beneficial evidence to give but may be expected, on cross-examination, to proffer evidence highly prejudicial to the case. The judgment exercised by the defendants with respect to the identification of legal issues likely to be raised at the trial, the appropriate strategy to address those legal issues and the judgments and decisions taken in pursuit of that strategy all are complex and important professional judgments to be made by the trial lawyer. These factors and more are all matters in respect of which the plaintiff has called no expert evidence. The jury therefore has no evidence upon which they could possibly render competent verdict upon the disparate facts relied upon by the plaintiff in the evidence that she has presented. [18] The same is true with respect to the question of causation. If the jury would be competent to find that the defendants were negligent the jury would then have to decide whether that negligence caused the plaintiff to be convicted on one or more of the charges. Alternatively stated they would have to decide, had the defendants not been negligent, was it more probable than not that the plaintiff would have been acquitted of one or more of the charges. Once again, there is no expert evidence that has been presented by the plaintiff to the jury to provide the jury with the competence to reach conclusion on this second most fundamental issue in this case. [19] The Supreme Court of Canada had occasion to consider these issues in the case of ter Neuzen v. Korn (1995), 1995 CanLII 72 (SCC), 127 D.L.R. (4th) 577. [20] That case concerned the trial of professional negligence claim advanced by plaintiff against medical specialist physician in respect of an HIV infection which the plaintiff contracted as result of an artificial insemination procedure conducted by the defendant. In its analysis of the trial judge’s handling of the issue of professional negligence in his instructions to the jury, the majority of the Supreme Court concluded as follows at p. 588 of its judgment: [32] In order to properly address the issues relating to professional negligence, it is useful to consider what were the matters which the jury was obliged to decide. In each aspect of the claim the jury was bound to consider whether the evidence established that standard of practice existed. If the answer was in the affirmative, the next question was whether the defendant conformed to that practice. An affirmative answer to this question would result in finding of no negligence in favour of the respondent unless the jury was entitled to consider and hold that the standard practice was itself below the required legal standard and that conduct below that standard constituted negligence. Similarly, if the jury found that no standard practice was established by the evidence, the appellant would have failed to prove her case unless the jury was entitled to fix the standard without the necessity of expert evidence .... [Emphasis added] [21] Having identified this issue the court proceeded with the following analysis at p. 590: [36] The appellant, therefore, can only support favourable finding on this aspect of the case on the basis that the jury was entitled to find that the standard established by the evidence itself departed from that of prudent and diligent physician and that the respondent, in failing to conform with higher standard, was guilty of negligence. This raises the issue as to the correctness of the trial judge’s charge to the jury to the effect that the jury was so entitled. [37] With respect to the second aspect of the claim in professional negligence, the Court of Appeal considered that verdict for the appellant was open to the jury. It is, however, by no means clear that the evidence establishes standard practice with respect to the screening and follow-up of donors. This was matter for the jury to determine. If the jury found that the evidence fell short of establishing the existence of standard practice, the question arises as to whether the jury could determine the applicable standard without the aid of expert evidence. This is legal issue upon which the Court of Appeal did not pronounce but which is closely related to the issue raised by the trial judge’s instruction referred to above. [38] It is generally accepted that when doctor acts in accordance with recognized and respectable practice of the profession, he or she will not be found to be negligent. This is because courts do not ordinarily have the expertise to tell professionals that they are not behaving appropriately in their field.... [22] The court went on to consider the issue of what evidence needs to be presented in order to support finding of professional negligence by jury. The court quotes Professor John G. Fleming at p. 110 of his publication, The Law of Torts, 7th ed. (Sidney: Law Book Co., 1987), at p. 591 in part, as follows: ... [C]ourts have resorted to the safeguard of insisting that negligence in diagnosis and treatment (including disclosure of risks) cannot ordinarily be established without the aid of expert testimony .... [23] At pp. 592 and 593, paras. 43 and 44, the Supreme Court observes and concludes as follows: ... The question that remains is under what circumstances will professional standard practice be judged negligent? It seems that it is only where the practice does not conform with basic care which is easily understood by the ordinary person who has no particular expertise in the practices of the profession. That is, as Professor Fleming suggests, where the common practice is fraught with danger, judge or jury may find that the practice is itself negligent. [44] As was observed in Lapointe, courts should not involve themselves in resolving scientific disputes which require the expertise of the profession. Courts and juries do not have the necessary expertise to assess technical matters relating to the diagnosis or treatment of patients. Where common and accepted course of conduct is adopted based on the specialized and technical expertise of professionals, it is unsatisfactory for finder of fact to conclude that such standard was inherently negligent. On the other hand, matters falling within the ordinary common sense of juries can be judged to be negligent. [Emphasis added] [24] The Supreme Court’s discussions at pp. 593-97 [paras. 45-58] of the ter Neuzen judgment provides ample illustration of the kinds of circumstances in which jury would be competent to render verdict in respect of professional negligence claim by the use of “ordinary common sense” as opposed to expert evidence. At p. 594 the court commented upon statements of Coyne J.A. in the case of Anderson v. Chasney, 1949 CanLII 236 (MB CA), [1949] D.L.R. 71 (Man. C.A.). That case involved claim by plaintiff of medical negligence against doctor performing surgery who left surgical sponge in his patient. After commenting that this is the kind of medical negligence case in which jury would be competent to apply ordinary common sense without the necessity of relying upon expert evidence, the court in ter Neuzen observed as follows: [49] As well, Coyne J.A. emphasized that the case involved no difficult or uncertain questions of medical or surgical treatment nor any matters of scientific or highly technical character. It was simply matter of whether obvious and simple precautions, easily understood by ordinary individuals, were required to be taken.... [25] At p. 595 the court concludes: [51] conclude from the foregoing that, as general rule, where procedure involves difficult or uncertain questions of medical treatment or complex, scientific or highly technical matters that are beyond the ordinary experience and understanding of judge or jury, it will not be open to find standard medical practice negligent. On the other hand, as an exception to the general rule, if standard practice fails to adopt obvious and reasonable precautions which are readily apparent to the ordinary finder of fact, then it is no excuse for practitioner to claim that he or she was merely conforming to such negligent common practice. [52] The question as to whether the trier of fact can find that standard practice is itself negligent is question of law to be determined by the trial judge irrespective of the mode of trial.... [26] At p. 596 the position is summarized for the majority of the court as follows: ... If the alleged act or acts of negligence are such that the jury could reject expert evidence as to standard practice and set the appropriate standard without reliance on expert evidence, then it can do precisely that where the expert evidence fails to establish standard practice. In either case, the basic question is whether the nature of the issue can be decided on the basis of the ordinary knowledge possessed by the jury or, on the contrary, the matter requires expert evidence because it is beyond the ken of the average juror.... [Emphasis added] [27] Finally, at p. 597 the court concludes: [58] In light of this characterization, agree with the conclusion reached by the Court of Appeal that with respect to the first aspect of the case the question of the standard of care was not one which the jury could decide without the aid of expert evidence.... As have pointed out above, the Court of Appeal correctly held that finding of negligence on this branch of the case would not be supportable in that it was not finding which jury acting judicially could make.... [Emphasis added] [28] The Supreme Court recognized in ter Neuzen that the issue of whether or not the professional negligence claimed is within or beyond the competence of jury to decide without expert evidence is question of law that it is the trial judge’s responsibility to decide. In this case, it is decision to be made in the context of this non-suit motion. [29] In considering this question have considered the recently released decision of the Saskatchewan Court of Appeal in the case of Hagblom v. Henderson and Campbell, 2003 SKCA 40 (CanLII), 2003 SKCA 040. In that case the court had to consider whether or not claim for professional negligence against two lawyers for failing to call an available expert witness to testify at the original civil trial of the plaintiff constituted negligence. The court concluded that it did and further concluded that but for this negligence it was more probable than not that the plaintiff would have succeeded at his original trial. While not on all fours with the issue which must decide upon this application nevertheless, this case recognizes the importance of calling expert evidence at trial where the issue involved is matter beyond the ordinary competence of the trier of fact to decide, in that case, the trial judge. [30] In the case at bar, the evidence presented by the plaintiff in respect of the particulars of the defendant lawyers’ negligence raises issues of legal judgment and tactics respecting the conduct of the plaintiff’s case both in preparation for and at the trial. The issues raised involve substantial legal expertise and judgment including knowledge of the legal rules of admissibility respecting the evidence of witnesses, the identification of an appropriate defence strategy, the judgments and decisions that are appropriate to the pursuit of that strategy as well as the other matters previously outlined. [31] These matters are beyond the competence of jury to decide based upon ordinary common sense and experience. In the absence of the presentation of opinion evidence on these matters by an expert qualified by the Court to give the required evidence there is no evidence upon which the jury could decide the two fundamental issues which are raised by this case which must be referred to the jury for decision by them namely; whether the standard of care which they are instructed to apply in the circumstances of the case was breached by the defendant lawyers and secondly whether that breach caused the plaintiff, more probably than not, to lose an acquittal upon one or more of the charges upon which she was convicted at the original trial. [32] Simply put the calling of legal expert to provide these required opinions in this case was not matter of convenience or choice for this plaintiff—it is necessity. The consequence of not doing so cannot be overcome by any other efforts whether they be other evidence, argument or judicial instruction to the jury. [33] It is appropriate for me at this stage to make comment with respect to the position of Ms. Palmer-Johnson as self-represented plaintiff in connection with this issue of the necessity of calling expert legal evidence. The Court record establishes that September 17, 2001 was set as the first date for the pre-trial settlement conference in this case. The plaintiff herself presented notice of motion dated September 4, 2001, applying to adjourn the pre-trial “due to the fact that the expert witnesses and the accompanying documentation will not be ready for submission as set out in Rule 190 ....” Her explanatory letter to counsel for the defendants dated September 10, 2001 referred to an economist. This adjournment requested by Ms. Palmer-Johnson was granted by the Court. Alan McIntyre, legal counsel for the defendants, swore an affidavit April 2, 2002 in support of an application to set new pre-trial conference date. He deposed in paragraph that he had written letter to the plaintiff July 12, 2001 outlining the requirements in The Queen’s Bench Rules with respect to expert witness notices and evidence and again wrote the plaintiff September 17, 2001 (exhibit “B”) which stated in part as follows: Your suggestion at chambers to Mr. Justice McLellan that you were seeking an expert to provide an opinion about negligence was the first you had ever said anything about that. Based on your representation that you were seeking such an opinion, Mr. Justice McLellan adjourned the pre-trial conference. Of course, the problem you are faced with is that no one will give you the opinion you are seeking because neither Mr. Tochor nor Mr. Merchant failed to meet the standard of care of reasonable competent lawyer. He deposes in paragraph 10 of his affidavit in part: While her matter was before the court, Mr. Justice McLellan, did not seem disposed to granting such an adjournment but when the plaintiff raised the issue of whether or not Mr. Tochor had met the standard of care, the court promptly granted the requested adjournment. In paragraph 11 Mr. McIntyre deposes to letter he received from the plaintiff dated March 7, 2002 (exhibit “D”) in which Ms. Palmer-Johnson states: At present, am still in consultation and seeking legal advice. am waiting for reply from several lawyers. reassure you, however, once the legal representatives are in place, the pre-trial will commence shortly thereafter. [34] In addition to these communications about an expert witness or witnesses Mr. Justice Kyle, the judge originally designated to hear this trial, in an effort to provide some general guidance to Ms. Palmer-Johnson as self-represented plaintiff, caused the local registrar to send letter to the plaintiff (with copy to Mr. McIntyre) dated December 18, 2002 which stated in part as follows on p. 2: The plaintiff should be advised, for example, that the testimony is not receivable simply to the effect that the witness agrees with the plaintiff. witness, non-expert, who was at the trial and does not think the lawyer did very good job will not be permitted to give that evidence before jury. more common approach would be to have senior lawyer or law professor experienced in court matters testify after convincing the court that he or she is “qualified expert”. Such testimony would be based upon transcript as the person would not have been present at the trial. [35] Finally, the plaintiff has been in possession of the defendants’ notice to produce their intended expert legal witness and the nature of his intended testimony since December, 2002 when the defendants’ Notice of Expert Witness was served upon her. [36] These matters are reviewed simply to establish that it was clearly known to the plaintiff that the calling of legal expert to provide opinion evidence was important to her case. This Court and Mr. McIntyre for the defendants have attempted to assist and accommodate Ms. Palmer-Johnson in her efforts to do so by granting adjournments and giving some direction in communications to her. The plaintiff, Ms. Palmer-Johnson, was given every opportunity, if not encouragement, to call required experts. She chose not to do so. CONCLUSION [37] In the result, having concluded that the plaintiff has presented no evidence upon the fundamental issues which this jury might be called upon to consider in this case, I must and do grant the non-suit applied for. The case against the defendants, and each of them, is hereby dismissed and the jury will be discharged. The defendants will be entitled to one set of costs only against the plaintiff, the same to be taxed pursuant to column unless any other provisions of the rules with respect to offers of settlement are applicable.
The plaintiff brought a professional negligence claim against her former solicitors with respect to their handling of three charges against her for practising medicine without a licence and one charge for providing medical treatment, while not registered under the Medical Professions Act. The solicitors brought a motion for non-suit pursuant to Queen's Bench Rule 278A. HELD: The motion for a non-suit was granted. The claim was dismissed. Although given an opportunity, the plaintiff failed to call expert evidence respecting the elements of negligence including the duty of care, standard of care, breach of the duty of care or causation. The solicitors were awarded one set of costs taxed on column 4.