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CIVIL PROCEDURE - Parties - Adding or substituting - Appeals

Thursday, June 27, 2019 @ 6:33 AM  

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Appeal by the plaintiff Swaleh from the dismissal of his application to add the Law Society of Alberta (LSA) and the Alberta Lawyers’ Insurance Association (ALIA) to the action as defendants and to further plead particulars in relation to purported causes of action against them. In May 2006, Swaleh retained the defendant Lloyd to represent him in relation to a contract with Beattie Homes to build a high-end home. Swaleh alleged that due to various contractual breaches related to the construction of the home, he further retained Lloyd to sue Beattie Homes. Lloyd filed a statement of claim against Beattie Homes in October 2010. Swaleh alleged that at some point after the service of the statement of claim, Lloyd disappeared without leaving his contact information and all attempts to find him failed. Swaleh’s claim against Beattie Holmes was dismissed for long delay in 2015. Swaleh filed a claim with ALIA and alleged that ALIA was aggressive and uncooperative. In March 2017, Swaleh filed a statement of claim against Lloyd, alleging professional negligence. Swaleh stated that he learned that Lloyd was reprimanded by the LSA on more than one occasion. Swaleh submitted that the mere fact that the LSA found issues with Lloyd’s governability and ability to deal with trust money should have resulted in a breach of the LSA’s duty to protect the public. Swaleh further alleged that ALIA was negligent in its dealings with him. The respondents took the position that the amendments sought, and the proposed allegations were hopeless and could not succeed. The respondents relied on section 115(1) of the Legal Profession Act (LPA), which they stated granted immunity against such claims.

HELD: Application dismissed. The relevant citations in the LSA Committee Hearing Report were unrelated to Swaleh and the reports post-dated any dealings Swaleh had with Lloyd. Furthermore, no complaints were filed by Swaleh against Lloyd. Any potential cause of action against the law societies was extinguished by section 115(1) of the LPA. The proposed claims against the LSA did not allege any facts which, if provable, would have placed Swaleh in a relationship of proximity with a foreseeable harm. The claims against the LSA also did not include allegations of gross carelessness and serious negligence. Swaleh’s claim against the LSA was hopeless. Swaleh made a bare assertion that ALIA dealt with him in an aggressive and uncooperative manner. Since ALIA owed no duty of care to Swaleh and the conduct pleaded did not disclose a cause of action that would have resulted in a breach of the requirement to act in good faith, ALIA could not have been held liable to Swaleh. The proposed claim against ALIA was hopeless.

Swaleh v. Lloyd, [2019] A.J. No. 603, Alberta Court of Queen's Bench, A. Loparco, May 10, 2019. Digest No. TLD-June242019011