Executive Summary: Key Legal and Evidentiary Issues

• Defendant lawyer Lora Anjos applied to strike the plaintiffs' amended notice of civil claim and dismiss the action against her under Rule 9-5 of the Supreme Court Civil Rules.

• Plaintiffs alleged four causes of action against Ms. Anjos: breach of a court order, tortious interference, breach of trust, and negligence, arising from her role as counsel for the former estate administratrix.

• The Court confirmed that breach of a court order is not an independent tort and cannot by itself found a claim for damages, though it may inform a duty of care analysis.

• Claims for tortious interference failed because the plaintiffs did not plead that Ms. Anjos intended to cause harm to them or that her dealings with third parties were unlawful as actionable against those parties.

• No material facts were pleaded to support a constructive trust claim against Ms. Anjos, as she held no property over which a trust could be imposed and was not unjustly enriched.

• The negligence claim survived the strike application, with the Court finding it was not plain and obvious that it was bound to fail, though the plaintiffs were granted leave to amend and properly plead its elements.

The estate dispute and the Mayer J. Order

Larry Daniel Jones died on March 18, 2014, leaving behind a residential property in Terrace, B.C. (the "Property") as part of his estate. After his death, Tracey Ann Davidson applied for and was granted letters of administration based on her purported status as the deceased's common law spouse. The deceased's son, Eric Jones, commenced an estate action challenging Ms. Davidson's status. On September 15, 2020, following a trial in August 2020, Justice Mayer found that Ms. Davidson was not the common law spouse and that Eric Jones was the appropriate person to be named as Administrator of the Estate. The resulting order revoked Ms. Davidson's letters of administration, granted them to Eric Jones, directed Ms. Davidson to transfer the Property to Eric Jones, and ordered Ms. Davidson to provide vacant possession of the Property to the Estate within three months of the judgment. Ms. Davidson was represented in the Estate Action by lawyer Lora Anjos.

The appeal, the flood, and the property transfer delay

Ms. Davidson filed a Notice of Appeal of the Mayer J. Order on February 1, 2021. No stay application of the order was made. In May 2021, while the Property had not yet been transferred to Mr. Jones as Administrator, a flood occurred at the Property. Ms. Davidson's appeal was heard on September 24, 2021 and was dismissed on January 31, 2022. The Property was transferred into Mr. Jones' name in his capacity as Administrator of the Estate on June 22, 2022.

The claims against Ms. Anjos and the insurance adjudication process

Eric Jones, personally and as Administrator of the Estate, commenced this action on May 18, 2023. The amended notice of civil claim ("ANOCC") was filed in February 2024. The claim named multiple defendants, including Ms. Davidson, a credit union, an insurance broker, an underwriter, and Ms. Anjos. Against Ms. Anjos specifically, the plaintiffs alleged that she failed to transfer the Property in a timely manner pursuant to the court order, obstructed and excluded Mr. Jones from the insurance claims adjudication process following the flood, communicated privately and secretly with the credit union and insurers to the prejudice of the plaintiffs' interests, assumed control of the claims adjudication process such that all communication went through her office, and failed to take reasonable steps to ensure timely remediation of the flood damage. The plaintiffs further alleged that additional damage, including mold, was caused to the Property by the failure to take timely remediation, that the Estate suffered a loss for the cost of partial remediation, and that the Estate suffered an economic loss on the sale of the Property as a result of the flood damage and additional damage.

Ms. Anjos' application to strike the pleadings

Ms. Anjos brought an application under Rule 9-5 of the Supreme Court Civil Rules seeking to strike the relevant paragraphs of the ANOCC and dismiss the action against her. She argued that the pleadings were "amorphous," lacked material facts and particulars, and failed to disclose any reasonable cause of action. She submitted that as a lawyer, she owed no duty of care to the opposing party and that breach of a court order could only give rise to remedies under the Supreme Court Civil Rules, such as contempt proceedings, not a claim for damages. The plaintiffs responded that Ms. Anjos' criticism of the ANOCC for lacking material facts was misguided in mischaracterizing what is an appropriate lack of evidence in pleadings, that her obstruction constituted an independent tort, and that the Laiken line of cases supported holding a lawyer to the same standard of compliance with a court order as the client.

The Court's analysis of each cause of action

The Court examined each of the four causes of action asserted against Ms. Anjos. On the breach of court order claim, the Court confirmed that following Syl Apps Secure Treatment Centre v. B.D. at the Supreme Court of Canada, breach of a court order is not an independent tort and cannot by itself found a claim for damages. The proper remedy is contempt proceedings. While the Laiken cases establish that a solicitor of record may be held to the same standard of compliance with a court order as their client who was a party, the Court found that principle relates to the lawyer's obligation to the court to take scrupulous care to ensure respect for court orders and to a possible finding of contempt, not to grounding a claim in damages. The Court struck this cause of action as having no reasonable prospect of success.

On the tortious interference claim, the Court applied the framework from A.I. Enterprises Ltd. v. Bram Enterprises Ltd. and Qualcomm Incorporated v. Barroqueiro, which require three elements: an unlawful act committed against a third party, an intention to cause economic harm to the plaintiff, and resulting economic harm to the plaintiff. The plaintiffs had not pleaded that Ms. Anjos' dealings with the credit union, insurance representatives, and the remediation company were wrongful or unlawful as actionable by those third parties, nor had they alleged that Ms. Anjos' actions taken in relation to those third parties were done with the intent to harm Mr. Jones or the Estate. This claim was struck as disclosing no reasonable cause of action.

On the breach of trust claim, the Court found that the only trust allegation in Part 1 of the ANOCC related to Ms. Davidson being a trustee of the Property after the Mayer J. Order, not to Ms. Anjos. Ms. Anjos held no property over which a trust could be imposed, did not receive any assets as a result of not transferring the Property, and was not unjustly enriched. The plaintiffs had not pleaded the material facts to support the essential elements of a claim for a constructive trust or a breach of trust against Ms. Anjos.

On the negligence claim, the Court acknowledged the general rule that lawyers do not owe a duty of care to third parties who are not their clients, absent special circumstances or fraud. Drawing on Laiken ONSC, Esser v. Luoma, Dhillon v. Jaffer, and other authorities, the Court concluded that given the circumstances of the Mayer J. Order to transfer the Property, Ms. Davidson and Ms. Anjos' failure to timely transfer the Property, the flood, and the allegations against Ms. Anjos related to her dealings with the credit union, insurance representatives, remediation company, and the remediation itself, it could not say that the plaintiffs' claims against Ms. Anjos in negligence could not succeed as a matter of law, and it could not say that it was plain and obvious that the pleadings were bound to fail and could not be cured. Though the pleadings were deficient in not clearly pleading the separate elements of duty of care, standard of care, breach, and causation, the Court considered that the pleadings may be capable of amendment.

The findings on vexatiousness and abuse of process

The Court also rejected Ms. Anjos' arguments that the pleadings were unnecessary, scandalous, frivolous, or vexatious under Rule 9-5(1)(b). Although the claim in negligence against Ms. Anjos may be a difficult claim to make, the Court was not convinced that it could be considered unnecessary, scandalous, frivolous, or vexatious. On the abuse of process argument under Rule 9-5(1)(d), Ms. Anjos submitted that the plaintiffs' "only discernible purpose" for naming her was "to seek to abrogate solicitor-client privilege" as she could not respond fully to the claims without revealing privileged communications with Ms. Davidson. The Court found it difficult to conclude, without more, that the plaintiffs brought the claim for that improper purpose, and noted that counsel for Ms. Anjos did not explain why the Court should reach that conclusion as opposed to, for example, the purpose of obtaining damages from Ms. Anjos.

The ruling and outcome

Justice Jones dismissed Ms. Anjos' application for an order that the action be dismissed against her. However, the Court struck out the causes of action for breach of the Mayer J. Order, breach of trust and constructive trust, and interference with the plaintiffs' financial and legal interests in the Property, and ordered specific portions of the ANOCC struck or amended accordingly. The negligence claim against Ms. Anjos was preserved. The plaintiffs were granted leave to amend and file a further amended notice of civil claim within 30 days of the date of the reasons, relating to the claim in negligence, taking into consideration the Court's reasons. No exact amount of damages was determined or awarded at this stage, as the proceeding remains at the pleadings phase and no trial on the merits has taken place.