Karl Girdhari

The plaintiff, the Estate of Henry Goldentuler, sought damages against the defendants for intentional wrongful interference with commercial relations and breaches of trust/fiduciary duty, arising from the defendants' surreptitious removal of client files from Goldentuler's law office.

The defendants' statement of defence and counterclaim had been struck due to their failure to pay costs and repeated administrative dismissals of their appeals.

The court conducted an assessment of damages, considering expert evidence on lost fees and disbursements.

The court found the defendants breached their duties of loyalty and good faith.

Damages were calculated by applying a contingency factor for files that might not have settled (1/3 reduction) and a 44% reduction for overhead expenses, then a 50% reduction based on the original fee-splitting arrangement.

The court declined to award punitive damages for litigation delay, deeming it compensable by costs.

The defendants brought a motion for summary judgment dismissing a civil claim alleging conspiracy relating to vehicle brake repairs and allegedly inflated pricing for brake disc/rotors.

The plaintiff alleged that the defendants conspired to overcharge for parts and to conceal a warped rotor by loosening a wheel bearing, seeking compensatory and punitive damages.

The court held that the tort of civil conspiracy requires proof of an agreement and resulting damages, as articulated in Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd. The evidentiary record contained no evidence of any agreement among the defendants or of damages arising from the alleged conspiracy.

Summary judgment was therefore granted dismissing the conspiracy claims, while the remaining repair-related claims were allowed to proceed to trial.

The defendants brought a motion to set aside an earlier order striking their statement of defence and counterclaim after their former solicitor failed to respond to motions, failed to pay costs awards, and failed to properly perfect an appeal.

The court considered whether litigants may rely on solicitor neglect to obtain relief, and whether the court’s inherent jurisdiction and Rule 59.06 could justify setting aside the order.

Applying factors similar to those used for setting aside default judgments—adequate explanation, prejudice, and defence on the merits—the court found that although the defendants had ignored several warning signs about their lawyer’s conduct, there was no prejudice to the plaintiff and the defendants had an arguable defence.

The interests of justice favoured deciding the matter on its merits rather than through procedural default.