






Citation:


Davies 
          v. Pedersen


Date:
20030120









2003 
          BCCA 36


Docket:


CA030125






Registry:  
          Vancouver




COURT OF APPEAL FOR BRITISH COLUMBIA




BETWEEN:




JULIE ANNE DAVIES, JUDITH DIANE DUCHARME and

VICTORIA DALE GREIDANUS




RESPONDENTS

(PLAINTIFFS)




AND:




DONALD HARVEY PEDERSEN




APPELLANT

(DEFENDANT)



















Before:


The 
          Honourable Madam Justice Saunders







(In 
          Chambers)












M. 
          Skorah


Counsel 
          for the Appellant




L.G. 
          Schafer


Counsel 
          for the Respondent J. Davies




Place 
          and Date of Hearing:


Vancouver, 
          British Columbia






December 
          10, 2002






Place 
          and Date of Judgment:


Vancouver, 
          British Columbia






January 
          20, 2003










Reasons for Judgment of the Honourable 
    Madam Justice Saunders:





[1]

This is an application for leave to appeal a Chambers order made August 
    22, 2002, and if leave is granted, for an order for a stay of proceedings.

[2]

The order sought to be appealed dismissed Mr. Pedersen's application 
    for an order that Mr. Schafer cease to act as counsel or as solicitor of record 
    for the plaintiffs.

[3]

The underlying action arises from a landlord tenant dispute.  Mr. Pedersen, 
    the landlord, visited premises he owned and rented to the plaintiffs.  An 
    altercation ensued between Mr. Pedersen and the plaintiff Ms. Greidanus, and 
    a subsequent fire destroyed the premises.  Mr. Pedersen was charged with arson, 
    breaking and entering, assault and uttering a threat.  The arson charge was 
    stayed by the trial judge, and Mr. Pedersen was acquitted of the other charges 
    by the jury.

[4]

The plaintiffs claim damages for destruction of their possessions and 
    Ms. Greidanus claims additionally for damages for assault.  All plaintiffs 
    are represented by Mr. Schafer.  Mr. Pedersen denies the claim, pleading in 
    his Amended Statement of Defence that the actions of the plaintiffs caused 
    the fire and that Ms. Greidanus assaulted him.  He has counterclaimed for 
    damages, alleging malicious prosecution by Ms. Greidanus.  Mr. Pedersen's 
    theory is that Ms. Greidanus set the fire.

[5]

At a pre-trial conference the trial judge on the criminal matters advised 
    the parties that he would not be the trial judge on the civil matters, and 
    added, without deciding, that there could be an issue of conflict of interest 
    for plaintiffs' counsel because of the allegation by Mr. Pedersen that one 
    of the plaintiffs caused the fire which destroyed the other plaintiffs' possessions.

[6]

In the matter now sought to be appealed, the learned Chambers judge 
    dismissed Mr. Pedersen's application to have the plaintiffs represented by 
    different counsel, accepting Mr. Schafer's assurance that he had complied 
    with the provisions in the
Professional Conduct

Handbook
, that 
    are applicable when a lawyer represents clients in circumstances that might 
    give rise to divided loyalties, that is, the provisions for informed consent.

[7]

In order to satisfy this Court that leave to appeal should be granted 
    on an interlocutory order, the applicant must satisfy this Court of the requisite 
    merits and importance of the proposed issues, and generally persuade this 
    Court that it is in the interest of justice that the appeal should be heard.

[8]

In this case the learned Chambers judge relied, as he was entitled 
    to do, upon an assurance from counsel that he had complied with the
Handbook
.  
    He found there was no demonstrated prejudice to Mr. Pedersen by Mr. Schafer's 
    continuing to act, and he referred to the relevant jurisprudence.  Considering 
    the general practice that plaintiffs who sue together should be jointly represented 
    (
Attorney General of Canada v. Canadian Pacific Limited and Marathon 
    Realty Company Limited
(1981), 30 B.C.L.R. 230 (B.C.S.C.), and the 
    restraint usually exercised by courts in interfering with counsel of choice 
    (
Mara v. Blake
(1996), 23 B.C.L.R. (3d) 225 (C.A.), I see little 
    prospect that a panel of this Court would interfere with the Chamber judge's 
    exercise of discretion.

[9]

Nor is an appeal at this stage, in my view, conducive to efficient 
    conclusion of that underlying litigation.  Rather, an appeal may well delay 
    the conclusion of the action.  And given recent cases on the issue of conflict 
    of interest, I do not consider that an appeal should be heard simply to elucidate 
    the issue.

[10]

Mr. 
    Skorah, for Mr. Pedersen on this application, eloquently addressed the possibility 
    that the interests of the plaintiffs may diverge at some later point in the 
    litigation.  While that potential exists, the development of real prejudice 
    may be dealt with in costs and a fresh application to the Supreme Court of 
    British Columbia at that time.

[11]

For 
    these reasons I would not grant leave to appeal.



The 
    Honourable Madam Justice Saunders




