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BARRISTERS AND SOLICITORS - Liability - Real estate transactions 

Thursday, March 26, 2020 @ 9:31 AM  

Lexis Advance® Quicklaw®
Appeal by the defendant law firm from the dismissal of its application to strike the respondents’ notice of civil claim. The respondents acted for purchasers in a land transaction for which a certificate of compliance pursuant to s. 116 of the Income Tax Act should have been obtained. No certificate was obtained, and the purchasers were assessed a withholding tax. In a separate action, the respondents were found liable to the purchasers. The respondents had appealed and entered a consent order that purported to allow the appeal and remit the purchasers’ claims for retrial. The appellant was not a party in the prior action. In the within action, the respondents sought contribution or indemnity from the appellant, who acted for the creditor selling the property under an order for conduct of sale. The chambers judge dismissed the appellant’s application on the basis that the consent order permitted rehearing of the claims and because the respondents’ claims against the appellant were not determined in the prior action.

HELD: Appeal dismissed. The consent order in the prior action was not relevant to the claims advanced in the within action. The respondents were not attempting to relitigate their claims against the purchasers. Their claims for contribution and indemnity against the appellant had not been determined in the prior action. It was not plain and obvious that the claim disclosed no reasonable cause of action. It was not plain and obvious that the same question raised by the allegations in the claim was decided in the prior action. Issue estoppel did not apply. The action was not an abuse of process. Dissenting reasons were provided.

Liu v. Borden Ladner Gervais LLP, [2020] B.C.J. No. 182, British Columbia Court of Appeal, P.M. Willcock, G.B. Butler and P. Abrioux JJ.A., February 10, 2020. Digest No. TLD-March232020007