2008 BCSC 328 Newton v. Marzban

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*Newton v. Marzban,*
	2008 BCSC 328

Date: 20080318
Docket: S045960
Registry: Vancouver

Between:

Christine Diane Newton (also known as
Christine Beban)

Plaintiff

And:

Dinyar Marzban, Jenkins Marzban Logan,
Gordon F. Hubley, Bestwick & Partners, Gord Hubley Ltd.,
D. Jeffrey Harder and BDO Dunwoody LLP

Defendants

Before: The Honourable Madam Justice Neilson

Reasons for Judgment

Counsel for the Plaintiff	David A. Hobbs
Counsel for the Defendants, BDO Dunwoody LLP and D. Jeffrey Harder	David B. Wende & Emily Stock
Counsel for the Defendants, Dinyar Marzban and Jenkins Marzban Logan	Leslie Muir
Counsel for the Defendants, Gordon Hubley and Bestwick & Partners	Michael Hewitt & Michael Shirreff
Date and Place of Trial:	January 15-19, 22-25, 29-31, February 1, 5-9, 12-16, 19-23, 26, 27 March 7, 26-30, April 2-5, 10-13, 16-20, 23-27, May 7-9, 14-18, 30 and June 1, 2007
	Vancouver, B.C.

INDEX

Page

INTRODUCTION………………………………………………………………….… 3

CHRONOLOGY…………………………………………………………………….. 5

OBSERVATIONS ON WITNESSES – CREDIBILITY

AND ABSENCES ………………………………………………………………..… 81

THE NATURE OF THE PLAINTIFF’S MATRIMONIAL CLAIM ……………... 85

THE ALLEGATIONS AGAINST THE DEFENDANTS ………………………... 86

The Allegations Against Mr. Harder ……………………………..… 93

The Allegations Against Mr. Hubley ……………………………..…162

The Allegations Against Mr. marzban ……………………………..184

CAUSATION……………………………………………..………………………... 234

DAMAGES ……………………………………….………………………………... 271

CONCLUSION …………….…………………….………………………………... 273

INTRODUCTION

[1] In the spring of 2000, the plaintiff separated from her husband, Lyle Newton. A matrimonial proceeding ensued to deal with division of family assets and spousal support. A central issue was the valuation of the family logging business, comprised of a group of companies collectively referred to as the Alliford Bay Group (the “ABG”), in which the plaintiff and Mr. Newton were directors, officers, and equal shareholders. The action was ultimately settled in October 2001 on the basis that Mr. Newton paid the plaintiff $1.771 million. $1.6 million of that represented the value of the plaintiff’s shares in the ABG. Other relatively minor family assets were essentially split equally, and the plaintiff released her claim for spousal support.

[2] In the course of reaching this settlement, the plaintiff received advice and assistance from the defendants in this action. Mr. Gordon F. Hubley, a chartered accountant and partner in Hubley Bestwick & Partners, provided early support to the plaintiff, and ultimately became the principal negotiator of the settlement. Mr. D. Jeffrey Harder, a chartered accountant and chartered business valuator, and a partner in BDO Dunwoody LLP, did a valuation of the ABG. Mr. Dinyar Marzban, a matrimonial lawyer and a partner in Jenkins Marzban Logan, was retained by the plaintiff as her lawyer in the proceeding. In the balance of these Reasons, I use the names of the personal defendants as representative of both the individuals and their partnerships.

[3] The plaintiff now brings this action against these advisors and their professional firms, claiming damages for breach of contract and negligence. She says that their advice and representation fell below the required standard of care in that they failed to develop her best position, fully advise her of her options, and warn her of the risks of settling without further investigation. She maintains that, as a result, she accepted an improvident settlement and lost the benefit of a materially more favourable outcome at a trial, which she estimates would have been in the range of $3 million to $4 million more than the amount for which she settled.

[4] In response to the plaintiff’s claims, the defendants mounted a united defence, arguing that she received a high standard of professional services from each of them. As well, they say that the evidence clearly demonstrates that she would have settled regardless of their actions. Mr. Hubley usefully summarized the defendants’ collective position as follows in his closing argument:

These Defendants respectfully submit that an allegation of professional negligence in a case of settler’s remorse requires far more than a hindsight theory of what might have been tendered as evidence on one party’s behalf at a trial. It requires proof of negligent errors or omissions causing an identifiable loss to the Plaintiff. In this case, it requires credible testimony from the Plaintiff that she would have acted differently and compelling expert evidence that advice given was flawed. The Plaintiff provided neither.

[5] I have concluded that the services and advice provided to the plaintiff by the defendants Gordon F. Hubley, Bestwick & Partners, Gord Hubley Ltd., D. Jeffrey Harder, and BDO Dunwoody LLP met the required professional standard of care, and the action against them is dismissed. I have found that the services and advice provided by the defendants Dinyar Marzban and Jenkins Marzban Logan did not meet that standard of care in certain respects. However, I have concluded that the plaintiff has failed to prove that their negligence caused her to suffer any loss. Her action in negligence against those defendants is accordingly dismissed. She is entitled to recover nominal damages from them for breach of contract.

[6] This action originally included other defendants as well, but the plaintiff abandoned her claim against them before the trial proceeded. While this judgment was under reserve, I received from counsel a Fourth Amended Statement of Claim with amendments that reflect this development. Where it is necessary to refer to the plaintiff’s pleadings, I accordingly use the paragraph numbers from this most recent version (the “Statement of Claim”).

CHRONOLOGY

[7] Credibility is a major issue in this case. I accordingly set out the parties’ varying accounts of the events in some detail.

Background prior to separation

[8] The plaintiff was born in Nanaimo in 1966. She completed high school and attended a community college for two years, but completed only one course. She then moved to the Queen Charlotte Islands where she worked for her father’s logging company.

[9] While in the Queen Charlottes, she met Mr. Newton, who was working as a logger for her father’s company. They were married on July 11, 1987. The plaintiff’s father died shortly after the wedding, and she and Mr. Newton worked for his company in 1988, commuting between Nanaimo, where she worked in the office, and the Queen Charlottes, where Mr. Newton continued to log.

[10] In mid-1988, Mr. Newton had an opportunity to buy a 50% interest in a logging company in the Queen Charlottes. The plaintiff says that they used $175,000 from her inheritance to do so, and the $87,500 for Mr. Newton’s half of the purchase price was a loan from her to him that he agreed to repay (the “Start-up Loan”). They each owned a 25% interest in the company.

[11] Both worked hard in the new business and Mr. Newton was able to increase its productivity substantially. The plaintiff worked in the office. In 1989, they bought out the other owner and each became a 50% shareholder in the business, which they renamed Alliford Bay Logging Ltd. This company was the first of the group of companies that ultimately comprised the ABG. Mr. Brewer, who had been the accountant for the original company, became the accountant for the new company and for Mr. Newton and the plaintiff personally.

[12] Mr. Newton continued to expand the company’s logging operations. The plaintiff says that the business did better each year and they had a very comfortable lifestyle for the duration of the marriage.

[13] In 1993, Mr. Newton and Mr. Brewer negotiated the purchase of a timber company in Nanaimo that had logging interests in Clayoquot Sound. The plaintiff and Mr. Newton relocated to Nanaimo where they purchased a home on Stephenson Point Road (the “Matrimonial Home”) and set up the office of the ABG on property purchased on Cienar Drive (the “Cienar Drive Property”). They also purchased a property in Lantzville (the “Lantzville Property”). When the ABG began logging in Powell River, they bought a house there in the plaintiff’s name to provide accommodation for the logging crew (the “Powell River Property”).

[14] From 1993 until the parties separated in 2000, the ABG continued to acquire new assets and develop new businesses under the guidance of Mr. Newton and Mr. Brewer. The plaintiff worked casually in various roles in the ABG’s office.

[15] In late 1997 and early 1998, the ABG established Duke Point Custom Log Sort Ltd., a dry land sorting operation at Duke Point on land belonging to the Nanaimo Port Authority. The ABG invested a substantial amount in grading and paving the property, and building a booming ground, spillways, and an office. Logs from its operations and from other customers were dumped, sorted, scaled, dewatered, and loaded onto trucks there. The ABG also set up Duke Point Shake and Shingle Ltd. and a chipper plant at the Duke Point site. Later in 1998, the ABG established Alliford Bay Transport Ltd., a hauling business to serve its own companies and other customers. Another of the ABG’s companies, 545161 B.C. Ltd., purchased a Bill 13 logging contract for $500,000 in 1998 that permitted it to log in Boston Bar for J.S. Jones Timber Ltd. (“J.S. Jones”).

The ABG and the forest industry at the time of separation

[16] When the plaintiff and Mr. Newton separated in the spring of 2000, the ABG comprised 11 companies involved in a variety of activities related to the logging industry. The plaintiff and Mr. Newton were equal shareholders and officers in each company, and both were directors in most.

[17] Mr. Newton was the central person in the operations of the ABG. Mr. Len De Clark was the comptroller. Mr. Brewer remained the external accountant, although Mr. De Clark described his role as closer to a chief financial officer.

[18] The ABG’s chief assets were logging equipment, logging and road-building contracts, and real estate. The equipment was by far its largest asset. A brief description of the logging industry at the time of the relevant events is necessary to provide context for the assets and activities of the ABG, as well as the subsequent negotiations between the parties.

[19] At that time, a few large forest companies (the “majors”) held most of the timber tenures in British Columbia through license agreements with the provincial government. These agreements provided for an annual allowable cut (“AAC”) measured in cubic metres, which was set every five years.

[20] The majors typically contracted out a portion of their logging and related road-building operations to logging contractors such as the ABG through agreements known as Bill 13 contracts. Mr. De Clark testified that these contracts gave the contractor a right to a certain logging volume or road-building distance, usually over a five-year period. He said, however, that the volume or distance permitted was not necessarily the same every year. If the government reduced the logging volume of a major, the contractor’s cut would be reduced proportionally. Thus, a Bill 13 contract did not guarantee a consistent annual income.

[21] Logging contractors often engaged in market logging to supplement Bill 13 income. This involved contracts to log private land, or bidding at government auctions for blocks of cut available under a small business forestry enterprise program. Mr. De Clark said that Mr. Newton was good at “chasing wood” through market logging opportunities, but their availability was unpredictable.

[22] Witnesses knowledgeable in the logging industry agreed that it is cyclical due to a number of factors. Productivity and profitability vary due to seasonal and climatic conditions, as well as economic factors such as fluctuating markets, currency variations, trade agreements, and fuel costs. Changes in government policies and regulatory measures also have a significant impact on the industry’s performance.

[23] During the 1990s, environmental concerns in the coastal forest industry played a significant role in changing forest practices, resulting in a reduction of the AAC in some locations, and increasing use of more environmentally sensitive and costly logging methods, such as heli-logging. The result was a reduced profit margin for the affected loggers.

[24] Economic factors also created uncertainty in the coastal forest industry in 2000 and 2001. The impending impact of the expiry of the softwood lumber agreement with the United States at the end of 2001 was unknown. As well, the Japanese market was depressed.

[25] Mr. De Clark acknowledged that the ABG was affected by these challenges. He said that the majors were tightening up when negotiating rates, and it was difficult to budget in advance what volume the ABG would receive from each of its Bill 13 contracts. This contributed to a decreased profit margin and cash flow problems. However, he could not recall any time between 1999 and 2001 when the ABG actually had its AAC reduced, although he said its cash flow was tight during those years.

[26] The financial state of the ABG in 2000 and 2001 was the subject of significant controversy in this action. I will set out some aspects of its historical financial performance as a reference point for issues that will be dealt with later in these Reasons.

[27] The ABG’s fiscal year end was October 31. Its combined financial statements from 1994 to 2001 record its revenue and operating income as follows:

	1994	1995	1996	1997	1998	1999	2000	2001
Revenue	11,345,726	11,728,827	16,899,627	24,346,283	11,220,404	17,734,367	29,325,198	22,902,270
Operating Income	(134,943)	(869,144)	916,528	76,184	(618,689)	420,991	511,160	(29,387)

[28] Management salaries for the plaintiff and Mr. Newton show significant variation in those years:

	1994	1995	1996	1997	1998	1999	2000	2001
Recorded Management Salary	$104,500	$70,700	$185,000	$186,600	$78,100	$92,100	$922,319	$947,500

[29] For tax purposes, any ABG profit over $300,000 was typically split equally between the plaintiff and Mr. Newton and paid out to them as a bonus. After personal tax was paid on those funds, the plaintiff and Mr. Newton paid them back into the shareholders’ loan account of the ABG to assist in maintaining cash flow. As of October 31, 2000, and throughout the settlement negotiations, Mr. Newton and the plaintiff each had a shareholder’s loan account of $408,775, and a net of $182,300 due to them as their share of the 2000 bonus.

[30] In early 2000, the ABG was relying on financing from the Royal Bank of Canada (the “RBC”) to run its operations. In March 2000, the RBC advised that it intended to pull the ABG’s credit as the ABG had breached one of its borrowing covenants by failing to maintain the required debt service coverage ratio. As a result, the ABG began a search for new financing at about the same time that the plaintiff and Mr. Newton separated. As part of that process, the ABG retained American Appraisals Canada, Inc. to appraise its equipment.

May to September 2000 - early negotiations

[31] The plaintiff said that she left Mr. Newton because he joined the Hells Angels. She testified that, while she still loved him, she was concerned about what the future would hold with his new association. He had become verbally abusive, and she was afraid of him.

[32] After the separation, the plaintiff no longer worked in the ABG’s office, but she continued to draw an income of $5,000 a month from the company. She said that because Mr. Newton made it uncomfortable for her to be in the office, she developed a practice of going in at night to copy information that she wanted.

[33] The plaintiff and Mr. Newton initially attempted to negotiate a settlement themselves, with assistance from Mr. Brewer. The plaintiff said that Mr. Newton and Mr. Brewer told her that a settlement must be reached as soon as possible, as they were concerned that the uncertainty arising from the separation would have a negative impact on the ABG’s precarious position with the RBC, and its refinancing efforts.

[34] In early May 2000, Mr. Brewer presented a settlement proposal that valued their joint net worth at $1,320,550, including $817,550 for the ABG shares. It gave Mr. Newton the ABG and the plaintiff the Matrimonial Home, some other smaller assets, and monthly payments of $5,074.70 for seven years.

[35] Mr. Hubley became involved at this point. He had practised as a chartered accountant in Nanaimo since 1981. He had a number of clients who were involved in the logging business and, since the death of the plaintiff’s father in 1987, he had provided accounting services to the plaintiff’s mother and sister related to the family business and personal matters.

[36] In late April 2000, Dolores Beban, the plaintiff’s mother, called Mr. Hubley and asked if he would assist the plaintiff with her matrimonial dispute. She told Mr. Hubley that the plaintiff had left Mr. Newton because of his association with the Hells Angels, and warned him that she knew the plaintiff was sometimes difficult to deal with. Mr. Hubley told Ms. Beban that he did not know how much he could help the plaintiff, but he agreed to look at the offer she had received, and said that he would likely refer her to matrimonial specialists for advice, as he did not know about divorce situations. He said that he did this as a favour to an important client.

[37] Mr. Hubley and the plaintiff met at his office on May 4, 2000. Mr. Hubley testified that it was a short meeting, and the plaintiff appeared very anxious. He advised her that he was not experienced in matrimonial disputes, but that he would try to help her. He told her that he could look at financial information related to the ABG and give her some indication as to whether the current offer from Mr. Newton was fair. He also said that he would try to find people who could help her. He asked her to obtain the financial statements of the ABG to allow him to assess the offer, but told her that he could not do a valuation of the ABG because he was not a trained valuator. Mr. Hubley said that he did not enter into an engagement agreement with the plaintiff as he was uncertain what services he would provide to her other than referring her to professionals competent in the matrimonial field.

[38] The plaintiff agreed that when she met Mr. Hubley she knew that he was a chartered accountant who had worked with her family’s logging companies. She was aware that he was not a lawyer, and understood the difference between these professions. The plaintiff’s recollection of what occurred at their first meeting varied. At her first examination for discovery, she said that she had no recollection of the meeting, except that Mr. Hubley agreed to help her. At the trial, she provided more details about it, but ultimately agreed that she could not testify under oath as to the specifics of their discussions. However, she denied that Mr. Hubley told her he had no experience in divorce cases.

[39] On May 8, 2000, the plaintiff dropped off the ABG’s 1999 financial statements at Mr. Hubley’s office. Mr. Hubley said that they discussed the offer that she had received from Mr. Newton, and she was looking to accept it, but wanted advice from him about whether it was fair.

[40] Mr. Hubley did an analysis of the ABG financial statements, and prepared a spreadsheet setting out possible values of the plaintiff’s shares ranging from $900,000 to $2 million, based on several hypothetical estimates of the fair market value of the ABG’s assets. He described this as a “quick and dirty accountant’s estimate” of what the ABG share value might be, and said that he prepared it to show the plaintiff the impact that the equipment value had on the share value. He and the plaintiff met on May 10, 2000 to review this, and he showed her that these hypothetical estimates were significantly higher than the offer from Mr. Newton.

[41] The plaintiff testified that Mr. Hubley told her at this meeting that he did not know what her shares or the equipment were worth, and that the numbers in his analysis were hypothetical, but he felt her shares were somewhere in that range. She agreed that from that point on she understood that the value of her shares had a direct relationship to the value of the ABG equipment, and that they were worth considerably more than what Mr. Newton was offering her.

[42] Shortly after this meeting, on a recommendation from a friend, the plaintiff retained David Lobay as her matrimonial lawyer. On May 19, 2000, she and Mr. Hubley met with Mr. Lobay at his office.

[43] Mr. Lobay testified that the plaintiff wanted advice with respect to settling her matrimonial dispute. He said that she gave him a handwritten list of her concerns and some of the terms being discussed with Mr. Newton, and that he spoke with her about these. He could not recall all of their discussion, but said that he did advise her of her rights as a shareholder of the ABG, and gave her preliminary advice on her spousal rights. He testified that the plaintiff was concerned about the tax implications of a settlement, and told him that she wanted a lump sum settlement without having to pay tax on it.

[44] Mr. Lobay believed Mr. Hubley was present as a friend. He said that Mr. Hubley did offer the view that the assets of the ABG were worth more than what was being offered, and gave him a valuation of the company that demonstrated this. Mr. Lobay saw the primary issue as the value of the ABG. In his view, any claim for spousal support also depended on that valuation.

[45] Mr. Hubley confirmed that he gave his spreadsheet to Mr. Lobay, and explained the importance of the equipment value to the share value of the ABG. He said that they discussed Mr. Newton’s offer, but felt that they did not have enough information to value the plaintiff’s interest in the ABG or to advise her with respect to the offer. Mr. Hubley said that Mr. Lobay recommended to the plaintiff that they get financial disclosure from Mr. Newton.

[46] The plaintiff’s recollection of this meeting was equivocal. She initially testified that she did not recall very much about it apart from Mr. Lobay recommending that she obtain financial disclosure. On cross-examination by Mr. Marzban’s counsel, however, she identified the list that she had made for the meeting. It set out several topics, among them alimony, a lump sum payout, interest, security, and the debt-to-equity ratio of the ABG. The plaintiff said that this was just a list of things she was throwing out, and she was unable to recreate her thought process at the time she made it. She did not recall discussing these things with Mr. Lobay. In particular, she denied that he discussed her entitlement to spousal support at this meeting.

[47] Later, under cross-examination by Mr. Hubley’s counsel, the plaintiff confirmed that at her examination for discovery she had testified that she remembered nothing about this meeting of May 19, 2000. She said that she had confused it with another meeting, and now she recalled that they had discussed her separation, the offers that had been made, some background on the ABG, and Mr. Hubley’s spreadsheet. She said that she did not recall telling Mr. Lobay what she wanted. Nor did she recall him advising her about her rights. When Mr. Hubley’s counsel put the same list to the plaintiff, she claimed that it was not the same document that Mr. Marzban’s counsel had asked her about earlier.

[48] This list also recorded personal threats made by Mr. Newton against the plaintiff and anyone assisting her in asking for a larger settlement, as well as his comment that “you’ve chosen the wrong time to do this. The company is worth nothing.” The plaintiff said that Mr. Newton had told her that if she did not sign the deal, the bank would cause the ABG to go bankrupt. She said that she told Mr. Hubley and Mr. Lobay about this, and Mr. Hubley explained that the bank could not just force the ABG into bankruptcy. It would have to follow proper protocol.

[49] After this meeting, negotiations proceeded between Mr. Lobay and Mr. Newton and his lawyer, Brett Vining. Mr. Hubley played no part in these.

[50] Later in May, Mr. Newton bought a house and told the plaintiff that she must sign a document for the credit union so that he could obtain a mortgage. This document stipulated that he would receive a monthly salary of $10,000 from the ABG, and that he would not be paying spousal support.

[51] On May 24, 2000, the plaintiff wrote Mr. Lobay asking whether she should waive her rights to Mr. Newton’s personal income and to spousal support as he requested. Mr. Lobay advised her not to do so. The plaintiff said she nevertheless decided to give Mr. Newton what he wanted as she was afraid of him. Mr. Lobay drafted a postponement of her claim to spousal support on her instructions, but wrote to her on May 25, 2000 confirming his advice that she should not sign it. The plaintiff nevertheless executed the postponement. At trial, she denied receiving that letter.

[52] On May 25, 2000, Mr. Lobay wrote to Mr. Newton with respect to resolving the matter. The plaintiff received and approved a draft of this letter before it was sent. In it, he referred to the ongoing appraisal of the ABG equipment, and the difficulty of valuing the plaintiff’s shares until he has reviewed the appraisal with independent accountants. He suggested a possible discount if Mr. Newton bought out the plaintiff’s shares at that time. He invited interim monthly payments of $5,500 to the plaintiff, to be credited against her shareholder’s loan account and against any settlement agreement. He closed by advising that he had recommended to the plaintiff that she not settle quickly before a full review of the financial statements and appraisal.

[53] The plaintiff testified that she had no recollection of this letter or advice of this nature from Mr. Lobay.

[54] Mr. Lobay’s records indicate that on May 29, 2000, the plaintiff left him a telephone message asking him to draft a separation agreement as soon as possible for Mr. Newton to take to his lawyer. The plaintiff testified that she could not recall leaving this message. She agreed, however, that despite Mr. Lobay’s advice not to sign an agreement without getting full financial disclosure, she was going to sign it anyway. She said that she did not understand what financial disclosure was, and she was under a lot of stress and pressure. The plaintiff testified that she gave Mr. Lobay a monthly amount that she wanted, but could not recall the details of the agreement, and said that he did not review it with her.

[55] Mr. Lobay testified that he drafted a settlement agreement that reflected the plaintiff’s instructions and sent it to Mr. Brewer on June 2, 2000. He said that the terms came from the plaintiff, and were contrary to his repeated advice that there must be a valuation of the company first.

[56] In June, the plaintiff rented a condominium in Victoria. She said that she was encountering financial difficulties as she was unable to withdraw funds from the ABG as she had in the past. As a result, she cashed in investments of $65,000 that she and Mr. Newton had at Midland Walwyn (the “Midland Walwyn Shares”), and also borrowed $30,000 from her sister.

[57] Mr. Vining, on behalf of Mr. Newton, commenced a matrimonial action against the plaintiff on June 9, 2000. The statement of claim included a claim for dismissal of spousal support for both parties. The plaintiff testified that she could not recall seeing this, and did not know that Mr. Newton was saying that he would not pay spousal support.

[58] On June 12, 2000, the parties obtained a declaration under s. 57 of the Family Relations Act, R.S.B.C. 1996, c. 178, (the “F.R.A.”) by consent.

[59] On June 13, 2000, Mr. Vining wrote to Mr. Lobay with Mr. Newton’s position on the proposed settlement. His letter included these comments:

Mr. Newton basically told me what I am sure your client has told you, the companies values are dictated by the market and Mr. Newton’s ability to maintain the companies existence. In talking to my client, he advises me that the companies are valued at anywhere between $1.00 and $816,000.00, which would be the combined shareholder’s values of both himself and his wife. He feels that given his debt load in the approximate amount of $11,000,000.00, that the agreement would allow her to receive, at this time, approximately $190,000.00 over a 50% division between the parties, based on book value. To the matter [sic] in its most blunt terms, our client, by retaining the companies, is buying a “pig in a poke”. If he works hard and is lucky with the economy, he will do well. If not, it could be disaster as Mr. Newton could loose it all.

…

All claims of spousal support must be dismissed at this time. If Mr. Newton has not paid the $420,000.00, it means that he has lost everything, and your client will at least have salvaged the real property, and he would be left with nothing. Why would Mrs. Newton be able to come back after reaping the benefits of the tax free monies that she had received, including the lion’s share of real property, and then ask for maintenance when Mr. Newton would be unemployed and without funds?

[60] The plaintiff, Mr. Hubley, and Mr. Lobay met on June 13, 2000 to discuss Mr. Vining’s letter. Mr. Hubley testified that both he and Mr. Lobay advised the plaintiff that they did not have enough information to tell her whether the proposed settlement was fair.

[61] Mr. Lobay testified that he and the plaintiff discussed Mr. Newton’s position that the ABG could become insolvent and that she was lucky to get anything, as well as the fact that if the company was insolvent she may receive nothing for her shares. He said that security was also a concern as the proposed settlement involved payments by Mr. Newton personally over a significant period of time. Mr. Lobay testified that the dismissal of claims for spousal support was a given from Mr. Newton’s perspective. He said that he advised the plaintiff of her right to spousal support, and she understood that she was releasing this claim under the proposed agreement.

[62] The plaintiff testified that she recalled some things about Mr. Vining’s letter, but said that she did not really understand them. She could not recall reviewing the letter with Mr. Hubley or Mr. Lobay. She acknowledged that Mr. Lobay was concerned about the absence of financial disclosure. She denied that Mr. Newton was suggesting that the value of the ABG could be variable, or that his position on spousal support was discussed with her.

[63] Mr. Lobay said that he told the plaintiff that he was concerned about the speed at which things were moving, and gave her strong advice not to execute any agreement until they had full financial disclosure of the ABG. However, on June 14, 2000, he wrote to Mr. Vining and advised that, contrary to his advice, the plaintiff would sign the settlement agreement if some minor amendments were made.

[64] Mr. Vining and Mr. Lobay finalized the proposed agreement on June 15, 2000. Under its terms, the plaintiff was to transfer her interest in the ABG to Mr. Newton in exchange for $650,000, payable in monthly instalments of $5,500 over ten years. That figure included her shares as well as her shareholder’s loan of $408,775. There was no provision for interest on the unpaid balance. As security, the plaintiff’s shares were to be held in escrow until she was paid in full. Mr. Newton was to indemnify her for any tax liabilities arising. The plaintiff was to receive the Matrimonial Home and Mr. Newton was to pay the mortgage on it. The Lantzville Property was to be sold, the proceeds used to first pay the mortgage on the Matrimonial Home, and the remainder to be kept by Mr. Newton. The plaintiff was to transfer the Campbell River Property to Mr. Newton, and they would jointly own the Cienar Drive Property through a new company. The plaintiff reserved her right to spousal support until all payments had been made under the agreement, and then provided a full release of that claim. Other provisions dealt with an equal division of RRSPs, and less significant assets and liabilities.

[65] Mr. Lobay testified that he reviewed this agreement with the plaintiff and it remained his advice that she should not execute it. He wrote her a strongly worded letter on June 15, 2000, advising her that the offer in the agreement appeared substantially below her entitlement, and that it was impossible to assess it until he had more financial information, particularly the asset appraisal.

[66] The plaintiff said that she did not recall reading this letter. She agreed that she reviewed the agreement with Mr. Lobay, and she recalled some advice not to sign it without full financial disclosure. She said that she nevertheless signed it because she wanted to have it over with, and Mr. Newton was making threats. She testified that she did not know if it was a final settlement of all claims or not. She said that she did not think of that when she signed it, and no one told her that.

[67] With respect to the release of spousal support, the plaintiff initially testified that Mr. Lobay did not review this with her, and she did not understand that it meant that her claim for support was gone. Later, she said that when she signed the agreement, she did not understand the full extent of this provision; nor did she ask anyone to explain it to her. She said that spousal support was not a concern in any event because Mr. Hubley had earlier told her that she was not entitled to it. When challenged on this, the plaintiff could not say whether he had told her that before she signed this agreement. Finally, she said that she understood the agreement meant that she was giving up “alimony”, but said that she did not understand what that meant as no one discussed it with her.

[68] Ultimately, the settlement fell apart as Mr. Newton requested a last minute change, and the plaintiff instructed Mr. Lobay to reject the amendment because she had second thoughts about the settlement.

[69] Mr. Hubley was not involved in these negotiations, and was unaware that the plaintiff had almost concluded an agreement until she told him some time later.

[70] On June 26, 2000, the RBC advised the plaintiff and Mr. Newton that it would no longer provide credit to the ABG, and demanded payment of its outstanding loan by August 15, 2000.

[71] The plaintiff agreed that she was concerned that there would be major repercussions if the RBC pulled the ABG’s financing. She was also concerned that Mr. Newton’s connection to the Hells Angels was putting her interest in the ABG at risk. She contacted Mr. Hubley and, at her request, he contacted representatives of the RBC. They confirmed that the RBC had pulled the financing because of a breach of a covenant, but said that the bank was also concerned about Mr. Newton’s relationship with the Hells Angels. They advised, however, that because the Beban family’s logging companies were valuable clients of the RBC, it would give the ABG time to find alternative financing.

[72] Mr. Hubley reported this to the plaintiff. He then had no involvement with her until mid-September.

[73] On June 29, 2000, American Appraisals Canada, Inc. issued their appraisal (the “AA Appraisal”). This valued 214 pieces of the ABG’s logging equipment, as well as smaller miscellaneous equipment, at $10,580,000 on an auction basis and $13,680,000 on an orderly liquidation basis as of June 2, 2000.

[74] After the proposed settlement fell apart, the plaintiff told Mr. Lobay that she had changed her mind and wanted to get financial disclosure from Mr. Newton before settling. On July 10, 2000, Mr. Lobay wrote to Mr. Vining asking for a Form 89 Financial Statement, financial statements of the ABG, and a copy of the AA Appraisal. They also exchanged correspondence as to the draws Mr. Newton and plaintiff were entitled to take from the ABG pending settlement, in view of the difficulties with the RBC. Mr. Newton was receiving $10,000 monthly, and the plaintiff continued to receive $5,000. Their respective draws on the ABG beyond those amounts remained a contentious topic throughout the ensuing negotiations.

[75] Later in July, Mr. Newton changed the locks on the ABG’s offices. Mr. Lobay advised the plaintiff that it may be necessary to take corporate action to ensure her rights were protected. On July 31, 2000, he wrote to Mr. Brewer and advised that, as an equal shareholder and director of the ABG, the plaintiff would take legal action without further notice to ensure that she had access to the business. The matter was rectified and the plaintiff received keys to the office.

[76] The plaintiff, Mr. Newton, and their lawyers had an acrimonious meeting on August 1, 2000. Mr. Lobay said that Mr. Newton’s position was that the company was in financial trouble and the plaintiff would get nothing more than the last offer. As nothing was accomplished, Mr. Lobay believed it was time to get on with litigation, but had difficulty getting instructions from the plaintiff to do so. He had no further substantive involvement in the matter. In mid-September the plaintiff met with Mr. Hubley and told him that she wanted a new matrimonial lawyer.

[77] Mr. Newton and Mr. Brewer continued to seek alternative financing for the ABG. On August 1, 2000, HSBC Bank Canada (“HSBC”) offered credit of $4.7 million. The ABG was unhappy with some of the terms and conditions, however, and turned this down. The RBC extended its demand for payment to October 15, 2000.

October to December 2000 – retaining Mr. Marzban and Mr. Harder

[78] Mr. Hubley and the plaintiff agreed that they obtained Mr. Marzban’s name from Peter Voith, a lawyer who had earlier acted for the ABG. They diverged, however, as to Mr. Hubley’s role in this. The plaintiff was adamant that she obtained Mr. Marzban’s name from Mr. Voith on her own. Mr. Hubley testified that he and the plaintiff spoke to Mr. Voith together after the plaintiff made an initial telephone call to him, and Mr. Voith agreed to help her find a matrimonial lawyer. Mr. Hubley said they later received Mr. Marzban’s name from Mr. Voith when they met with him in Vancouver.

[79] Mr. Marzban is an experienced matrimonial lawyer who had been in practice for almost 20 years at the time of these events. He became a Queen’s Counsel in 2004, and has been active in professional organizations related to matrimonial law. He has also been a frequent speaker and writer on matrimonial issues.

[80] On October 12, 2000, Mr. Hubley called Mr. Marzban at the plaintiff’s request, gave him some background, and asked if he would represent her. Mr. Marzban agreed to do so, and asked for a $5,000 retainer. Mr. Hubley relayed this request to the plaintiff, and her mother provided the funds as the plaintiff could not afford it.

[81] On October 13, 2000, the ABG succeeded in arranging new financing. GE Capital Canada (“GEC”) agreed to provide it with a term loan of just over $4 million, and HSBC committed to a $400,000 line of credit.

[82] On October 17, 2000, the plaintiff told Mr. Hubley that Mr. Newton had assaulted her at the ABG’s office. Mr. Hubley advised Mr. Marzban. The plaintiff reported it to the police, but was afraid to press charges. Instead, she made arrangements to go to Mexico to get away.

[83] On October 25, 2000, before she left for Mexico, Mr. Hubley, Mr. Marzban and the plaintiff met at Mr. Hubley’s office.

[84] Mr. Marzban testified that at this first meeting he covered basic information with the plaintiff, such as the history of the relationship, Mr. Newton’s association with the Hells Angels, what had taken place to date including the earlier negotiations and aborted settlement, the postponement of spousal support, and details of the parties’ assets and income, including the ABG. Mr. Marzban said that they discussed the corporate structure of the ABG, its component companies, and Mr. Brewer’s role as the corporate accountant. Mr. Hubley said a broad “guesstimate” of the share value was between $2 million and $4.5 million, and they discussed the need to retain a qualified valuator to value the shares. The plaintiff told him that she and Mr. Newton were comfortable with the values of the real property they owned.

[85] Mr. Marzban testified that the basic situation appeared quite clear. The ABG was the linchpin. The other assets were relatively small, primarily real property, RRSPs, and vehicles. He recognized there was a question of spousal support, but said there was not much discussion about that, other than he may have said that he could not give the plaintiff any advice on support until he knew where the assets would end up.

[86] Mr. Marzban said that the plaintiff instructed him to get Mr. Lobay’s file, and to send a letter to Mr. Vining advising that unless Mr. Newton made a more satisfactory offer she would pursue financial disclosure. Mr. Marzban said he advised her against this, as they did not know the value of the company and she had already been through one failed settlement. He said that she was insistent, however, and so he agreed to do this as he felt no harm would come of it.

[87] Mr. Marzban testified that at the meeting of October 25, 2000 it was agreed that he could communicate with the plaintiff through Mr. Hubley for reasons of convenience. The same pattern later developed with Mr. Harder. As a result, Mr. Hubley often acted as the plaintiff’s agent in her dealings with both of these advisors.

[88] The plaintiff’s recollection of this meeting varied. In direct examination, she recalled little of what was discussed, other than she had provided a brief history of events, and Mr. Hubley had given Mr. Marzban an idea of the range of the value of the ABG shares. She could not recall receiving any advice from Mr. Marzban or Mr. Hubley during the meeting, and she was unsure if she gave any instructions to Mr. Marzban. She was, however, able to provide a list of things that had not been discussed at the meeting.

[89] On cross-examination, the plaintiff agreed that at her first examination for discovery she had testified that she had no recollection of this meeting with Mr. Marzban, and her only recollection of dealings with him in 2000 was a telephone call while she was in Mexico. She confirmed that at a later examination for discovery her recollection expanded to include a general discussion about the background and companies, and Mr. Marzban’s agreement to take over Mr. Lobay’s file. She agreed that it made sense that they would have discussed past offers, her financial situation, Mr. Newton’s use of company money, issues related to the RBC, and Mr. Lobay’s correspondence, but said that she did not recall this. When pressed on cross-examination as to whether spousal support was discussed, the plaintiff conceded that there had been some mention of it, but said that she could not recall the specifics.

[90] After the October 25, 2000 meeting, Mr. Marzban arranged corporate and title searches of the ABG companies and the real property in which the plaintiff held an interest. He obtained and reviewed Mr. Lobay’s file, and filed a Notice of Change of Solicitor. He also filed Certificates of Pending Litigation and a Statement of Defence and Counterclaim, in which he included claims for spousal support and reapportionment. Mr. Marzban testified that although he viewed this as a case for equal division of assets, he included the claim for reapportionment in case such an argument emerged.

[91] On November 22, 2000 Mr. Marzban sent the plaintiff a letter providing the advice on reconciliation mandated by s. 9 of the Divorce Act, R.S.C. 1985, c. 3 (2nd supp.). On November 24, 2000, after first faxing it to her in Mexico for her approval, he sent Mr. Vining a letter inviting an offer in accordance with the plaintiff’s instructions.

[92] The plaintiff recalled that she left for Mexico after the meeting, and that there was some discussion about obtaining an offer from Mr. Newton and, if none came, proceeding with financial disclosure. She agreed that it was her idea to invite this offer, despite the fact that she was no further ahead in investigating the value of the ABG, and despite advice to the contrary. She said that she did so because she was under a lot of emotional stress, she did not know what she wanted, and she felt that this was one way of possibly obtaining a settlement. She denied that Mr. Marzban advised her against this, or warned her of the risks of proceeding without financial disclosure.

[93] In December 2000, Mr. Newton retained Mr. Edward Mortimer, Q.C. as his new counsel. Mr. Mortimer testified that he met with Mr. Newton and Mr. Brewer around December 12, 2000. He said that Mr. Newton was very frustrated that the action had not settled, and gave him instructions to make an offer to the plaintiff that Mr. Newton said represented his “bottom line”. On December 14, 2000 Mr. Mortimer sent Mr. Marzban an offer to settle on these monetary terms:

· payment of $500,000 for the plaintiff’s shares in the ABG;

· payment of the plaintiff’s shareholder’s loan of $408,775;

· these amounts to be paid at $10,000 per month commencing January 31, 2001, with no interest payable on the outstanding balance, and payment in full to be made by January 31, 2006;

· the Matrimonial Home and the Lantzville Property to be sold and the proceeds shared equally;

· the Powell River Property to be transferred to Mr. Newton in consideration of payment of $13,000;

· security by way of holding the plaintiff’s shares in escrow on graduated release tied into payment amounts; and

· mutual release of spousal support claims.

[94] Mr. Mortimer testified that he advised Mr. Newton that if they could not reach a settlement and had to proceed to trial, he should offer to sell his shares to the plaintiff, or take the position that the parties should remain shareholders in the ABG and leave the resolution of the matter to company law. He said that he also advised Mr. Newton that if the plaintiff received more than a million dollars in assets at a trial she would not receive support due to her age, the length of the marriage, her job skills and family connections, and the fact that she had no children.

[95] Mr. Marzban sent the offer to the plaintiff without comment or advice, as he still had no information as to the value of the assets. The plaintiff testified that she had a limited understanding of this offer, but decided to reject it without seeking advice from Mr. Hubley or Mr. Marzban. She could not recall why. She advised Mr. Marzban of this by leaving a message with his office on December 18, 2000.

[96] Mr. Marzban then proceeded with obtaining financial disclosure. On December 21, 2000, he wrote to Mr. Mortimer rejecting the offer and enclosing a Demand for Discovery of Documents, Notice to Produce and Notice to File a Form 89 Financial Statement. Mr. Mortimer responded with similar demands on behalf of Mr. Newton.

[97] Mr. Hubley learned from Mr. Marzban that the plaintiff had rejected Mr. Newton’s offer. They agreed that it was time to retain a valuator to value the ABG, and that Mr. Harder would be an appropriate person to engage for that purpose. Both had worked with him in the past and both held him in high regard as a valuator.

[98] Mr. Harder has been a chartered accountant since 1983, and a chartered business valuator since 1987. He has fellowship standing in both professions, and has held positions in the Canadian Institute of Chartered Business Valuators, (the “CICBV”). He also holds specialty certifications as a fraud examiner and in investigative and forensic accounting. Mr. Harder has had considerable experience in valuing logging companies, and in doing valuations in matrimonial disputes.

[99] Mr. Hubley spoke with Mr. Harder on December 21, 2000, and Mr. Harder accepted the engagement. Mr. Hubley said that he also telephoned the plaintiff and obtained her agreement to hire Mr. Harder.

[100] The plaintiff agreed that Mr. Hubley told her that Mr. Harder was a highly regarded valuator in Vancouver who had experience with valuations of logging companies, and that she agreed to hire him. She said that she understood that Mr. Hubley was not a valuator, and Mr. Harder would value the shares of the ABG.

[101] Mr. Marzban spoke to Mr. Harder about his engagement, but did not discuss it with the plaintiff. He and Mr. Mortimer agreed that Mr. Harder could contact Mr. Brewer directly to obtain the necessary financial information to value the ABG. As a result, neither of them pursued production of Lists of Documents or Form 89 Financial Statements. Mr. Mortimer testified that he did not think these steps were necessary as the issue was simply how much compensation Mr. Newton was prepared to pay the plaintiff for her shares.

[102] The plaintiff testified that she never withdrew her instructions to Mr. Marzban to obtain financial disclosure. She said that he did not advise her about the different means of doing that, and she did not know what steps he took. She said that at this point she did not know what Mr. Marzban and Mr. Hubley were going to do, but she assumed they would carry on with what they were supposed to be doing.

January to March 2001 – preparation of the valuation of the ABG

[103] Mr. Hubley said that he met with the plaintiff on January 4, 2001 to explain the valuation process, including the concept of fair market value as opposed to the historic cost of equipment reflected on financial statements. The plaintiff had no recollection of this meeting.

[104] On January 9, 2001, Mr. Harder faxed a draft of his engagement letter to Mr. Hubley and Mr. Marzban. Mr. Hubley discussed with Mr. Harder what documents he would review, and was satisfied to leave this to Mr. Harder’s discretion. He also drew Mr. Harder’s attention to the importance of reviewing the AA Appraisal as Mr. Hubley wanted him to use anything that would increase the value of the ABG.

[105] Mr. Hubley said that he reviewed Mr. Harder’s draft engagement letter with the plaintiff, and sent it back to Mr. Harder with some notes to clarify the scope of his valuation. In her evidence in chief, the plaintiff said that she did not recall Mr. Hubley discussing the engagement letter with her. On cross-examination, however, she agreed that she did review the letter with Mr. Hubley.

[106] The plaintiff signed Mr. Harder’s engagement letter on January 26, 2001. The relevant portions stated:

· Mr. Harder would provide an estimate of the en bloc fair market value of the shareholder interests in the ABG companies for the purpose of a division of matrimonial property.

· The valuation date would be October 31, 2000.

· His valuation would include, among other things, a review of “corporate and business documents” including property and equipment appraisals, as well as interviews with management and a tour of the facilities.

· He would provide a draft report following completion of his valuation, and deliver a final report shortly thereafter.

[107] Valuators’ reports can provide three types of conclusions: a calculation, an estimate, or an opinion. Mr. Harder’s report was to be an estimate, which provides the middle level of assurance, analysis, investigation, and corroboration, and is deemed suitable for pre-trial negotiations. It is often a preliminary step to an opinion, which has the highest level of assurance.

[108] Mr. Marzban said that he reviewed Mr. Harder’s retainer letter and was comfortable with its terms and the level of assurance at this stage. He did not discuss it with the plaintiff.

[109] In January 2001, Mr. Marzban and Mr. Mortimer negotiated a consent restraining order covering the family assets. The order inadvertently included an unnecessary duplication of the earlier s. 57 declaration.

[110] On January 8, 2001, Mr. Harder met with Mr. Brewer to obtain preliminary information about the ABG. He requested and received a substantial amount of financial information by mid-January, including a copy of the AA Appraisal and the October 31, 2000 financial statements, which had just been completed. He spoke to Mr. Newton to obtain additional information. He took steps to corroborate some of the information provided by having his staff contact the majors in the forest industry who were familiar with the ABG’s operations.

[111] Mr. Harder reviewed the AA Appraisal and concluded that it was not reliable. He decided that he could not use it for his valuation. On January 24, 2001, he spoke to Mr. Brewer about the AA Appraisal. Mr. Brewer advised him that it had been done for financing purposes, and the values were high and unreliable. He said that Mr. Newton would not accept it as the basis for any settlement. They discussed having the ABG engage Cunningham Rivard to appraise the ABG’s real estate, and Ritchie Bros. to do another appraisal of the ABG’s equipment for the purpose of Mr. Harder’s valuation.

[112] Mr. Harder passed this information on to Mr. Hubley, who said that Ritchie Bros. was acceptable to him as he knew it to be a reputable outfit. Mr. Hubley said that he discussed this with the plaintiff and she raised no objection. Ritchie Bros. was accordingly retained to appraise the ABG equipment.

[113] The plaintiff’s evidence about her knowledge of the AA Appraisal was inconsistent. At one point, she testified that Mr. Newton had told her that the AA Appraisal was inflated and it was ridiculous to rely on it. However, she also maintained that, while she knew it had been obtained for financing purposes, she did not know that such appraisals tend to be on the high side. She denied that Mr. Hubley told her that Mr. Newton wanted another appraisal because the AA Appraisal was too high. Instead, she said that he told her that Mr. Harder needed a value for the equipment because the AA Appraisal was outdated and because of something to do with market conditions. She said that Mr. Hubley told her that Mr. Newton had recommended Ritchie Bros. and that this was what they would do for appraising the equipment. She agreed that she did not object to this.

[114] Mr. Hubley testified that the plaintiff later raised a concern about using Ritchie Bros. She felt that because Mr. Newton had used them to buy and sell equipment in the past he would be able to influence the outcome of the appraisal in his favour, and she asked if they could use someone else. Mr. Hubley said that he did not put much stock in the plaintiff’s concerns due to the size and reputation of Ritchie Bros., but they discussed it, and he told her that Ritchie Bros. would provide a market value appraisal which was likely to be lower than the AA Appraisal prepared for financing purposes. He also explained to her that Ritchie Bros. and Mr. Harder were independent, and it would ultimately be Mr. Harder’s decision as to whether the Ritchie Bros. appraisal would be suitable for his valuation. It would then be up to her as to whether she accepted his valuation. If she did not, she could go to court, or get another valuation. He told her that he did not know of any legitimate commercial reason to refuse an appraisal by Ritchie Bros., and at the end she agreed that they would use Ritchie Bros.

[115] The plaintiff adamantly denied that this conversation took place, or that she had objected to using Ritchie Bros.

[116] The Ritchie Bros. appraisal (the “Ritchie Bros. Appraisal”) was delivered to Mr. Newton and copied to Mr. Harder on February 7, 2001. It valued 166 of the larger pieces of the ABG logging equipment at $4,673,200.

[117] On February 9, 2001, Mr. Harder went to Nanaimo and met with Mr. Newton and Mr. Brewer at the ABG’s office. After a tour of the Duke Point site, they went through the Ritchie Bros. Appraisal and reconciled it with the ABG’s capital asset list. Ritchie Bros. had not appraised 253 pieces of equipment. Most of these were smaller miscellaneous items. Mr. Newton, Mr. Brewer, and Mr. Harder came to an agreed-upon value for most of these, in many cases using their net book value.

[118] On February 21, 2001, the plaintiff went to Mr. Marzban’s office in Vancouver to advise him that Mr. Newton was improperly expensing things through the company, and that she believed that Mr. Newton and the ABG were conducting illegal activities. She testified that she told Mr. Marzban these things in case something happened to her. Mr. Marzban had a limited recollection of this meeting. He said he was not instructed to take any steps as a result of this information.

[119] On the same day, the plaintiff went to Mr. Harder’s office and met with him for the first time. Mr. Harder testified that they discussed her view of the ABG and some of its contracts and equipment, but her primary concern was Mr. Newton’s use of corporate assets for his own purposes and whether he was hiding money. Mr. Harder said that he told the plaintiff that she could hire him to do a forensic investigation to determine if Mr. Newton was hiding assets but that it would be expensive. She did not engage him to do this.

[120] The plaintiff had little recollection of this meeting. She did not remember telling Mr. Harder of her concern that Mr. Newton was spending company money on personal things. She was adamant that they did not discuss a forensic engagement.

[121] After that meeting, the plaintiff telephoned Mr. Hubley. Mr. Hubley testified that she told him that she was concerned that Mr. Harder was biased against her and was not listening to her position on the ABG’s assets. Mr. Hubley said that he told her that they would have to wait and see the valuation but that, as the client, she had every right to ask Mr. Harder for clarification and to find out exactly what was going on. He also reiterated his previous advice that Mr. Harder was an independent valuator and had to make up his own mind about the value of the ABG.

[122] The plaintiff agreed that she spoke with Mr. Hubley about her meeting with Mr. Harder, but disagreed with his account of the discussion. She specifically denied that she was unhappy with Mr. Harder.

[123] Neither Mr. Harder nor the plaintiff could recall whether they discussed the large discrepancy between the AA Appraisal and the Ritchie Bros. Appraisal on February 21, 2001. Mr. Harder testified that he was concerned about the discrepancy, and so he contacted another appraiser, Mr. Robert Pearson of Universal Appraisals, and sent him a portion of the AA Appraisal to review. Mr. Harder said that Mr. Pearson reported to him that the AA Appraisal was too high and not supportable. Mr. Pearson also said that it would cost between $12,000 and $15,000 plus disbursements for Universal Appraisals to do another appraisal.

[124] The Matrimonial Home had been listed for sale by agreement, and was sold in February. Another lawyer handled the conveyance, and the plaintiff and Mr. Newton ultimately split the proceeds from the sale equally. Mr. Marzban testified that he spoke with the plaintiff twice near the end of February about the conveyance and the ongoing valuation.

[125] Mr. Hubley testified that on March 1, 2001, he had a long meeting with the plaintiff to examine the Ritchie Bros. Appraisal at Mr. Harder’s request, and to explain to her how the valuation process worked and where it might end up. He said that the plaintiff was frustrated with the way the valuation was being conducted. Mr. Hubley said that he used the ABG’s financial information and the Ritchie Bros. Appraisal to formulate and explain to her a “guesstimate” of what Mr. Harder’s valuation might produce. This suggested that the plaintiff’s interest in the ABG might lie between $1.5 and $2.5 million. He testified that she knew that his calculations were speculative, but she understood the process better as a result of this exercise. He said that he told her several times during this process that if she was not happy, she always had the opportunity to go to court.

[126] The plaintiff testified that she did not remember what was discussed at this meeting. She nevertheless denied that they discussed Mr. Harder’s role or that she could go to court if she did not like where the settlement discussions were going.

[127] Mr. Marzban’s time records show that he had a meeting with Mr. Harder and a telephone conversation with Mr. Hubley during the first week of March regarding valuation issues. Mr. Marzban had no recollection of these discussions, but said that it was not unusual for him to be updated regarding the status of things.

[128] Mr. Hubley testified that on March 5, 2001, the plaintiff came to see him and told him that Mr. Newton was charging personal expenses to the ABG. She asked him to relay that to Mr. Marzban, and he did so.

[129] Mr. Hubley testified that on March 12, 2001, the plaintiff came to his office, and again raised issues regarding the valuation. She also told him that she was unhappy with Mr. Marzban, and asked what his ethnic background was. Mr. Hubley said that he reminded her that Mr. Marzban had come highly recommended by Mr. Voith, and told her to bear with it and see what happens.

[130] The plaintiff could not recall this meeting, but denied that the conversation about Mr. Marzban occurred.

[131] On March 15, 2001, the plaintiff and Mr. Hubley went to Vancouver to meet with Mr. Harder. Before they left, they met at Mr. Hubley’s office and reviewed an equipment list that recorded the Ritchie Bros. Appraisal values and the AA Appraisal values for each piece of equipment. Mr. Hubley said that they together added a third column of equipment values that he described as their “best guesstimate” of what the equipment could be worth, based on their experience with logging equipment. These revised equipment values totalled about $6.5 million. Mr. Hubley said that, based on his experience in the logging industry, he felt that the Ritchie Bros. Appraisal was fairly accurate, and he denied telling the plaintiff that their values were too low. Nevertheless, he said that he and the plaintiff wanted to come up with a reasonable alternative for the equipment value that Mr. Harder could present to Mr. Newton and Mr. Brewer in an effort to negotiate a higher settlement.

[132] The plaintiff testified that the revised equipment list was prepared because Mr. Hubley felt the Ritchie Bros. values were too low and they wanted to create an argument that higher numbers should be used in the negotiation. She denied that she played any role in estimating the revised equipment values, or that she knew anything about the value of logging equipment.

[133] Mr. Hubley testified that at their meeting with Mr. Harder later that day, they presented the revised equipment values and asked him to send these to Mr. Newton and Mr. Brewer. The plaintiff’s recollection of this meeting varied. At an early examination for discovery, she did not recall the revised equipment list being at the meeting at all. At a later discovery, and at trial, she testified that this document was discussed briefly with Mr. Harder.

[134] Mr. Harder testified that they discussed the revised values and talked about where he was in his valuation. He understood that they presented the new equipment values because the plaintiff was concerned about the Ritchie Bros. Appraisal, and she wanted him to use these values instead in his valuation. Mr. Harder said he was not prepared to do that as they were clearly unreliable and biased. However, he did agree to pass the list on to Mr. Newton and Mr. Brewer. Mr. Harder also testified that they discussed obtaining another appraisal, and said that a reference in his notes of the meeting to “12 to 15 plus disbursements” refers to Mr. Pearson’s estimate of the cost of another appraisal.

[135] Mr. Hubley also testified that at this meeting they discussed the possibility of the plaintiff obtaining a third appraisal, and that Mr. Harder told them this would cost between $12,000 and $15,000.

[136] The plaintiff was confident that the topic of a third appraisal was not raised at this meeting. She emphatically denied that Mr. Harder told her that another appraisal could be obtained for $12,000 to $15,000 plus disbursements, or that she ever discussed a third appraisal with him. She said that none of the defendants advised her about contacting other equipment appraisers, and that Mr. Harder did not tell her that he had contacted Mr. Pearson.

[137] The plaintiff was certain that she was the person who first raised the idea of a third appraisal, and that this occurred later, after she heard from Mr. Hubley that Mr. Newton would not accept the revised equipment values. She said that Mr. Hubley told her that he would pose the idea of another appraisal to Mr. Newton and Mr. Brewer. Later, he told her that they were not keen on her getting her own appraisal. She said that was the end of it and she understood that Mr. Harder was going to value the shares based on the Ritchie Bros. Appraisal. She said that none of the defendants said anything else on the topic, and she did not know that she could challenge that decision.

[138] Mr. Harder testified that he sent the revised equipment values to Mr. Newton and Mr. Brewer. Mr. Brewer called him the following day and told him that they were unacceptable. Mr. Brewer also said that they were not pleased with the suggestion that the plaintiff would not accept the Ritchie Bros. Appraisal.

[139] Mr. Hubley testified that on March 16, 2001 Mr. Harder called and told him that Mr. Newton was very upset, and that he and Mr. Brewer were aggressive in stating that the revised equipment values were a pipedream, and that they would only consider the Ritchie Bros. values. He said they also indicated that if the plaintiff wanted another appraisal she could go ahead, but it was irrelevant to them. They suggested that they could liquidate the ABG and just get out of it, or the plaintiff could buy out Mr. Newton. Mr. Brewer had said they would prepare an offer based on Mr. Newton’s ability to pay.

[140] Mr. Hubley testified that on March 26, 2001 he met with the plaintiff to discuss Mr. Harder’s call, and they talked about the issue of another appraisal again. He said that they discussed the fact that Mr. Newton and Mr. Brewer were already unhappy with the numbers that were being advanced by Mr. Harder, which were based on the Ritchie Bros. Appraisal. Since they were trying to negotiate a settlement, Mr. Hubley said that he and the plaintiff were unsure whether a further appraisal, which could be higher or lower, would advance anything. Cost was also a factor. Mr. Hubley said that he told the plaintiff that if she did not feel that she was being treated fairly she could always take the matter to court. She said that she understood this.

[141] Mr. Harder testified that the uncertainty regarding a third appraisal left him in some difficulty. He was trying to get on with his valuation but knew the plaintiff was unhappy with the Ritchie Bros. Appraisal and was looking at other options. She did not, however, provide instructions to proceed with another appraisal.

[142] Although the source of this information was unclear, it is apparent that by late March the parties had sufficient information about Mr. Harder’s preliminary views to suspect that his valuation might put the plaintiff’s interest in the ABG, including her shareholder’s loan and 2000 bonus, in the neighbourhood of $2 million.

[143] Mr. Harder testified that he had a long phone call with Mr. Newton and Mr. Brewer on March 27, 2001. They wanted him to pass on an offer to the plaintiff. They were not keen on her getting another appraisal. They said that Mr. Newton was considering a job offer that would see him making the same salary and doing the same kind of work as managing the ABG. They also said that if the plaintiff wanted to buy Mr. Newton’s shares, Mr. Newton would not sign a non-compete clause. Finally, they threatened liquidation as Mr. Newton could not afford to pay the plaintiff anything close to $2 million.

[144] On March 28, 2001, Mr. Brewer faxed Mr. Mortimer asking him to speak to Mr. Marzban to ensure that any settlement discussions between Mr. Brewer and Mr. Harder for the next ten days would be without prejudice. That was done. Mr. Brewer’s fax also indicated that he felt that negotiations with Mr. Harder and Mr. Hubley were likely to be more productive than dealing with Mr. Marzban. No reason was given for that.

[145] On March 30, 2001, Mr. Harder received an offer from Mr. Brewer for $1,364,660 for the plaintiff’s interest in the ABG. This included $600,000 for her shares. The balance was comprised of her shareholder’s loan and 2000 bonus. The payment plan included application of Mr. Newton’s share in other assets that were sold to the purchase price, with the balance of $830,775 to be repaid at $5,000 per month plus an amount based on cubic metres logged, with no interest on the outstanding balance. The plaintiff’s shares were to be held in escrow as security. Other adjustments were suggested to less significant assets and liabilities.

[146] Mr. Harder calculated the tax-adjusted offer of the plaintiff’s interest in the ABG to be $1,201,000, and forwarded the offer to her through Mr. Hubley, with a memorandum reporting on his March 27, 2001 conversation with Mr. Newton and Mr. Brewer. He suggested they should review their position in a conference call.

[147] Mr. Hubley said that he discussed the offer and Mr. Harder’s memorandum with the plaintiff. They both thought that the offer was low, given the preliminary information they had from Mr. Harder about the plaintiff’s likely share value. They discussed Mr. Newton’s threat that he would be better off to liquidate the ABG, rather than assume the debt implicit in the plaintiff’s position. Mr. Hubley advised the plaintiff that he did not believe that there was a large enough difference between Mr. Newton’s offer and what they expected Mr. Harder’s going concern value would be to provide an incentive to wind up the ABG; nor was he concerned that Mr. Newton would remove himself from the ABG and accept a management contract elsewhere. He said that the plaintiff observed that Mr. Newton had enough pride in the ABG that he would not wind it up unless Mr. Brewer said that was the better course.

[148] The plaintiff testified that she recalled receiving an offer in late March 2001 and discussing it with Mr. Hubley, but she could not remember its terms or their discussion. She could only say that he had some concerns about the offer and it was rejected. The next step was to wait for Mr. Harder’s valuation.

April 2001 – the valuation, Westwood, and negotiation strategy

[149] Mr. Hubley, Mr. Harder, Mr. Marzban, and the plaintiff scheduled a conference call for April 2, 2001. Mr. Marzban did not get connected to it for unknown reasons.

[150] Mr. Hubley testified that they discussed the latest offer, Mr. Newton’s job prospect elsewhere, and his threat of liquidation. Neither Mr. Hubley nor Mr. Harder believed that liquidation was a serious threat, and both accepted that the ABG should be valued as a going concern. They agreed, however, that Mr. Harder should obtain a liquidation value from Mr. Brewer just to assess the downside risk.

[151] Mr. Harder testified that he was seeking instructions about how to continue his engagement, and directions as to whether the plaintiff was going to get another appraisal, accept the Ritchie Bros. Appraisal, go to court, or accept Mr. Newton’s offer. However, he could not recall what was actually said or decided during the call.

[152] The plaintiff testified that she had no recollection of this conference call.

[153] Mr. Hubley said that he called the plaintiff after the conference call. She was not happy with the offer, based on the preliminary numbers they had from Mr. Harder, and so they discussed the option of having examinations for discovery and going to court. Mr. Hubley told her that he believed that Mr. Harder’s valuation would drive the outcome in court, but that going to court involved matters with which he was unfamiliar, and she needed to speak to Mr. Marzban about these. Mr. Hubley said that the plaintiff told him that she wanted a settlement of $1.8 million, and if she could not get near that she would go to court. She also asked him about the payment of the start-up loan that she had made to Mr. Newton in 1988. Mr. Hubley testified that he told her that they should raise that issue with Mr. Marzban, and that he wrote “Dinyar!!” in large letters at the bottom of his notes of the call.

[154] The plaintiff testified that she did not recall this telephone call. When she was shown Mr. Hubley’s notes of the conversation, she claimed that it was she who had written the word “Dinyar!!” on the page, although she had no recollection of why or how that could be, given that they were Mr. Hubley’s notes of a telephone call to her.

[155] Mr. Hubley testified that he had several calls with Mr. Marzban in early April to update him on the conference call and other events. He also asked him to consider the issue of the start-up loan and let them know what to do with respect to it. He said that subsequently Mr. Marzban told him that it may or may not be a family asset.

[156] Mr. Marzban appears to have received Mr. Harder’s memorandum of March 30, 2001 from Mr. Hubley on April 2, 2001. He could not specifically recall his telephone conversations with Mr. Hubley during this time, but testified that he was kept apprised of the issues being raised.

[157] Mr. Hubley testified that by this point, the relations between the plaintiff and Mr. Newton had improved, and she periodically told him about conversations she had with Mr. Newton. Around this time, she advised him that Mr. Newton told her that Mr. Harder’s draft numbers had upset him and Mr. Brewer. As a result, she was worried she would not get a good settlement if they had to sell the company because there was no incentive to carry it on. She said that there was a lot of acrimony between Mr. Harder and Mr. Brewer and, contrary to her earlier concerns, she was now worried that Mr. Harder’s valuation was too high. Mr. Hubley said she was becoming very frustrated, nervous, and concerned about the process.

[158] The plaintiff denied that she was concerned that Mr. Harder was inflating his values. Nor did she recall being nervous about the process.

[159] Mr. Mortimer testified that, following the s. 57 declaration, Mr. Brewer on behalf of Mr. Newton had sought his advice as J.S. Jones wanted to hire Mr. Newton to manage a logging operation because of his expertise. He wanted to know if this could be done through a company without it becoming a family asset. Mr. Mortimer said that he advised Mr. Brewer of Mr. Newton’s rights under s. 59 of the F.R.A. He told him that, although Mr. Newton had an obligation to the ABG as a director and shareholder, he was not in servitude to the company, and could operate this new venture without it becoming a family asset as long as he did not use or encumber any family assets, notably the ABG, in doing so.

[160] In early April, the plaintiff went to the ABG’s offices at night and obtained some documents. These suggested that Mr. Newton had incorporated two new companies. They also led her to believe that he was going to buy another business and not continue with the ABG, and that he was charging personal expenses to the ABG. On April 9, 2001, she brought these to Mr. Hubley who called Mr. Marzban to discuss them, and then faxed copies to him.

[161] Mr. Hubley testified that on April 10, 2001, the plaintiff called him and asked him to call Mr. Voith to get his advice on whether they should proceed to court or try to settle. The plaintiff also expressed concern about whether Mr. Marzban was the appropriate person to take the case to court. Mr. Hubley said that they discussed the fact that Mr. Newton needed to have some incentive to settle. The situation had been going on for a year, and she had just obtained information of concern from the ABG’s offices. She now wanted Mr. Marzban to show Mr. Newton that they were serious about litigation. Mr. Hubley called Mr. Voith, who told him that if the numbers are close, it is always better to settle than litigate because you never know where the litigation will lead you. Mr. Hubley said he passed that advice on to the plaintiff.

[162] The plaintiff denied that the conversation with Mr. Hubley on April 10 took place, or that she had concerns about Mr. Marzban. She could not recall Mr. Hubley reporting to her about a conversation with Mr. Voith.

[163] Mr. Harder obtained a liquidation calculation from Mr. Brewer, which valued the plaintiff’s 50% interest in the ABG at $1.023 million, including her shareholder’s loan and 2000 bonus. Mr. Harder also prepared his own liquidation calculation, to show the plaintiff his view of her downside risk. Mr. Harder’s liquidation value was $1.308 million. Mr. Harder sent both calculations to Mr. Hubley on April 12, 2001.

[164] On April 14, 2001, Mr. Hubley sent Mr. Harder an e-mail to provide him with an update on the plaintiff’s position and strategy for advancing her claim. He said that he did not send it to Mr. Marzban as he had apprised him of the same matters by phone. The e-mail starts by mentioning the plaintiff’s frustration with the process. It then states:

True to his word Lyle is getting on with things. The documents that Christine obtained were information on two new companies that Lyle has incorporated within the last two weeks. These appear to be incorporated in order for him to acquire other logging assets outside of the Aliford Bay Group. In addition one of the companies is now currently charging Duke Point Shake & Shingle with equipment rentals. Needless to say Christine was livid. She was not consulted with respect to contracting out of any services to these numbered companies. She is also very concerned with an offer made by Lyle through the Aliford Bay Group to acquire another logging contractor and the diverting of that offer to the number company that Lyle has recently incorporated. Her concerns are the [sic] Lyle is using Aliford Bay’s assets to secure financing to acquire another logging contractor’s contract and assets.

…

Christine has requested of Dinyar to proceed with the legal process for the division of matrimonial assets. She is very concerned that Lyle will over the course of the next several months divert assets and value away from the Aliford Bay Group. As I stated earlier she is extremely frustrated at her inability to prevent any of Aliford Bay’s assets being used to finance these new ventures. She is convinced that Lyle is proceeding with the negotiating process as a front to allow him to do what he would like to do and thereby reduce her value in Aliford Bay.

She is not interested in accepting his offer of $1.2 million. A counter offer at this point in time appears to be pointless. Christine would entertain settling the value at the $2 million range as determined by your estimated value. The $2 million is arrived at by taking one half of the company’s value as you determined which would be approximately $1.3 million plus her shareholder’s loans plus her share of the October 31, 2000 bonus.

Jeff, Christine would like for you to communicate to Gary that we cannot accept their offer as presented. However, before you contact Gary Christine would appreciate you discussing with Dinyar the timing of when Lyle’s lawyer will be served with the notice to proceed with the legal process for the division of matrimonial property. She does not want to provide any advanced warning to Lyle regarding the serving of those papers. Once they have received those papers then she believes it would be an appropriate time to have you contact them and let them know that Christine has rejected the offer. Christine believes that the only way that she will be able to get Lyle to truly come to the table is to have the legal proceedings commence while at the same time leaving the door open for them to make a better offer to you on Christine’s behalf. The message we would like you to deliver to them is that she is open for a fair and reasonable offer however given the inadequate offer presented so far she has no option to commence with the legal process.

[165] The plaintiff agreed that Mr. Hubley’s e-mail accurately summarized her instructions, concerns, and frustration at that time, and that she came up with the figure of $2 million herself. She also agreed that throughout the whole process she was hoping to obtain a settlement.

[166] Mr. Hubley testified that he did not know what the upcoming legal process would be. He saw his role as just assisting the plaintiff in communicating her position as she asked. He said that in their discussions leading up to the e-mail, the plaintiff had told him that she had a strong preference to settle, rather than go to court. While her feelings about this did fluctuate during the negotiations, he said that her most consistent theme was that she wanted a settlement as long as it was fair to her. She told him that her desire to settle was influenced by her wish to stay on good terms with Mr. Newton, and to receive compensation for her shares in the ABG sooner rather than later.

[167] Mr. Harder testified that he chose not to accept the instructions in Mr. Hubley’s e-mail to respond to the offer, or to negotiate on behalf of the plaintiff. It was his view that he was engaged to do a valuation, and he did not want to become involved in the negotiations. However, since it appeared that the plaintiff planned to continue to negotiate, he was concerned that she should have some idea of where he was in the valuation process. He knew that Mr. Newton was suggesting that he may liquidate, or walk away and get another job, and that Mr. Brewer was pushing to get a settlement by April 30, 2001 for tax reasons. Mr. Harder said that he was essentially prepared to issue his estimate report, subject to resolution of the issue of whether the plaintiff wanted another appraisal. He therefore decided to prepare a memorandum about issues related to the negotiation of the share value, including his view of the value of the ABG at that point based on the Ritchie Bros. Appraisal.

[168] Up to this point, Mr. Hubley had had no direct dealings with Mr. Newton or Mr. Brewer. On April 18, 2001, he had an unexpected call from Mr. Newton who asked if he could assist in settling the value of the ABG. Mr. Newton told him that Mr. Harder and Mr. Brewer were at loggerheads, and were not making any progress in the negotiation. He felt that Mr. Harder’s values were grossly inflated and said that he could not buy the ABG on those numbers. Mr. Newton expressed his frustration with the whole process, the time it was taking, and the uncertainty. He said he was afraid that it was all going to go down the drain unless a more reasonable negotiation took place, and he asked Mr. Hubley for his help.

[169] Mr. Hubley said there was nothing threatening in the conversation. He told Mr. Newton that he did not know if he could help, and that he would have to talk to the plaintiff. Mr. Hubley then called the plaintiff and Mr. Marzban and told them about Mr. Newton’s call.

[170] The plaintiff denied that Mr. Hubley ever told her about any conversation he had with Mr. Newton.

[171] On April 20, 2001, Mr. Harder sent the plaintiff, Mr. Hubley and Mr. Marzban a memorandum with his opinion as to the value of the ABG shares, and his thoughts on the negotiations. Although it was not his final valuation, it was not marked “draft”. He attached to it schedules of his valuation calculations of the ABG on both a going concern basis and a liquidation basis, and a comparison of those to Mr. Brewer’s liquidation calculation and Mr. Newton’s offer of March 30, 2001.

[172] The key paragraphs read:

For purposes of our negotiations Gerry Brewer has valued Alliford on a liquidation basis. I have told Brewer that we disagree with using liquidation versus a going concern approach. However, BDO prepared both a going concern and liquidation valuation for Alliford as a point of comparison with Brewer. Both BDO valuations are based on the Ritchie Bros. equipment appraisal and my valuation for Alliford’s logging contracts. Brewer’s en bloc (total company) liquidation share value is $895 thousand while BDO’s is $1.465 million. Lyle’s offer to Christine multiplied by two is $1.2 million for all of the Alliford shares. BDO’s going concern value is $2.635 million. Gerry Brewer did not complete a going concern valuation. If we were to litigate this matter, BDO’s opinion would be that a going concern valuation is most appropriate.

My view is that we should counter Lyle’s offer with a value for Christine’s shares of between $700 thousand and $1.3 million as opposed to the offer of $600 thousand. I believe that it will be difficult to deal with Lyle if we ask for $1.3 million for shares, and a total consideration of $1.9 million. Our best position is probably $1 million for shares, which would mean a total consideration to Christine of $1.6 million as opposed to the $1.2 million implicit in Lyle’s offer. The price Christine will accept from Lyle for her shares is obviously Christine’s decision and if her position is $1.3 million for shares and she does not want to compromise on price it is still worthy of a counter offer. We would also counter requesting $409 thousand for Christine’s one half of the shareholder loan and the fiscal 2000 bonus, which will be $171 thousand net of tax.

[173] Mr. Harder’s memorandum also offered a number of suggestions as to terms and conditions for an offer, including a payment schedule, and provisions for security and interest.

[174] After delivering this memorandum, Mr. Harder had no further contact with the plaintiff. His involvement was limited to periodic conversations with Mr. Hubley. He did not complete a final report.

[175] Mr. Hubley testified that he met with the plaintiff on April 23, 2001 to review Mr. Harder’s memorandum. He said that they talked about the reports they had both heard from Mr. Newton that Mr. Harder and Mr. Brewer were unable to negotiate productively because they were too confrontational. Mr. Hubley said that the plaintiff then asked if he would undertake the negotiation of her interest in the ABG for her. She told him that the major reason she wanted him to get involved was that she did not want to take the time to go through the court process, as long as she could receive a fair settlement. She also said that she wanted to remain on good terms with Mr. Newton. Mr. Hubley said that she told him that because he understood the issues faced by logging contractors, she thought that he would be in a better position than Mr. Marzban to counter the issues being raised by Mr. Brewer and Mr. Newton.

[176] Mr. Hubley said he and the plaintiff then discussed Mr. Harder’s memorandum. They decided that they would not consider Mr. Brewer’s view that the shares should be valued on a liquidation basis, but would base their position on Mr. Harder’s going concern calculation. Mr. Hubley said that they looked at Mr. Harder’s value range of $700,000 to $1.3 million for the shares and agreed that they would do their best to get $1.3 million. When the plaintiff’s shareholder loan and 2000 bonus were added, the potential total was $1.89 million. Mr. Hubley said that the plaintiff then told him that she would like to settle for as close as possible to $2 million, but she would be happy if she could get around $1.8 million for her share in the ABG.

[177] Mr. Hubley testified that he told the plaintiff that he felt comfortable accepting her instructions to negotiate the value of the ABG, as long as it was a commercial negotiation. He advised her that he could not deal with the personal assets as he did not have a background in that and did not know what her entitlements would be. He also told her that he would only get involved if Mr. Brewer and Mr. Newton agreed to establish ground rules for a principled negotiation. Mr. Hubley said that at the end of the meeting the plan was that he would undertake negotiations on the terms they had discussed.

[178] The plaintiff’s evidence about this meeting and Mr. Harder’s April 20 memorandum was variable and confused. She testified in chief that she did not have any discussions with any of the defendants about how to proceed after the March 30, 2001 settlement offer and Mr. Harder’s memorandum. She said that, after receiving the memorandum, the defendants just continued to do what they were supposed to do, and she did not know what that was. She agreed that after April 20, 2001 Mr. Hubley began negotiating directly with Mr. Brewer on her behalf. When asked why that was so, she said that she just assumed everybody was working together throughout the process.

[179] On cross-examination, the plaintiff agreed that she discussed the memorandum with Mr. Hubley at a meeting on April 23, 2001, but said that she did not recall him telling her what they should do next. She denied that she was concerned at that point that Mr. Harder and Mr. Brewer could not productively negotiate, and said that she did not recall asking Mr. Hubley to negotiate on her behalf. Nor did she recall telling Mr. Hubley that she wanted to settle for $1.8 million, or Mr. Hubley telling her that he would try to get her the amount she wanted, and that he would establish some ground rules with Mr. Brewer for the negotiations.

[180] As for Mr. Harder’s memorandum itself, at her examination for discovery, the plaintiff said that she saw it in Mr. Hubley’s office but she did not know if he said anything about it. At trial, she initially testified that all she could recall about the memorandum was that there were some share values, and some information regarding negotiations. After reviewing it, she said that she recalled Mr. Hubley recommending an offer between $700,000 and $1.3 million for her shares. She agreed that she understood that Mr. Harder’s valuation was based on the Ritchie Bros. Appraisal. She agreed that she knew that Mr. Harder was not finished and that he still had to prepare a formal report. She said that no one told her that his numbers might change, or that the conclusions in the memorandum had any shortcomings. Nor did any of the defendants discuss with her the underlying valuation premises and how they related to the ABG, although she did recall Mr. Harder mentioning in one memorandum that if they went to court the ABG would be valued as a going concern.

[181] On cross-examination, the plaintiff said that she did not understand that Mr. Harder was including liquidation values in his memorandum only as a point of comparison with Mr. Brewer’s analysis. She said that she quite often got documents like this and read them but did not fully understand them. For example, she said that she did not understand the term “litigate” in Mr. Harder’s memorandum. She said that while people talked about going to court, no one discussed “litigation” with her. Nor did she ask anyone to explain it. She said that she did not feel that was her responsibility as she had three advisors who she assumed were working in her best interests and she did not feel she had to question them on everything. She said that she never understood that, if the case went to court, Mr. Harder would say that the value of the ABG shares was $2.6 million. She agreed that she understood the memorandum provided a range within which to negotiate, but said that she did not know precisely how much her shares were worth.

[182] Mr. Marzban testified that he did not discuss Mr. Harder’s memorandum with the plaintiff. Nor did they discuss her choice of Mr. Hubley as negotiator. He said that he knew that she had asked Mr. Hubley to negotiate for her, and he was not concerned about this. He thought it was a good idea, given Mr. Hubley’s qualifications, and it was understood that he would review any deal reached by Mr. Hubley before it was finalized.

[183] Mr. Marzban had reviewed the documents obtained by the plaintiff from the ABG offices earlier in April, and did company searches that showed that one of the two numbered companies incorporated by Mr. Newton belonged to his brother. The other was controlled by Mr. Newton and was renamed Westwood Logging Ltd (“Westwood”). Some of the documents suggested that Mr. Newton was offering to purchase a substantial logging contract through this new company. Others indicated that he may be improperly expensing things through the ABG.

[184] Mr. Marzban felt that the evidence regarding diversion of the ABG assets by the new companies was thin, and that the plaintiff had a big problem in asserting a claim to Westwood, unless it made improper use of the ABG’s opportunities or assets. He also felt that there were risks in bringing an application too early to find out more. The company had no track record yet. Its value might lie in demonstrating that Mr. Newton had additional income which strengthened a claim for spousal support. However, Mr. Newton might not develop this business opportunity if he thought that the plaintiff was seeking an interest in it. As well, the application could negatively impact the negotiations. Regardless, he advised the plaintiff that an application should be brought to get documents related to these ventures, and to obtain joint signing authority on the ABG cheques to prevent improper spending by Mr. Newton.

[185] The plaintiff instructed Mr. Marzban to proceed. She agreed that she was concerned that Mr. Newton might divert assets and value away from the ABG, and she was frustrated at her inability to prevent this. She was also convinced that he was using the negotiation process as a front to allow him to do what he wanted and to reduce her value in the ABG.

[186] On April 20, 2001, Mr. Marzban faxed a draft affidavit to the plaintiff and Mr. Hubley. The plaintiff made a note on this fax stating “Alimony – now? On top of salary”. She testified that she could not remember what the note meant, but said she was sure that she did not discuss it with Mr. Marzban. She said that she reviewed the draft affidavit with Mr. Hubley and provided Mr. Marzban with her comments.

[187] Mr. Hubley agreed that he reviewed parts of the affidavit with the plaintiff, but said that he did not discuss how it would be used, and did not know what was ultimately done with it.

[188] The plaintiff reviewed the final form of her affidavit with Mr. Marzban, and swore it on April 27, 2001. It exhibits the documents that she had obtained, and sets out her concerns that Mr. Newton was withdrawing company funds for personal use while limiting her access to funds, diverting income from the ABG through the new companies, and making substantial financial commitments without her knowledge.

[189] Mr. Marzban testified that ultimately he was instructed not to proceed with the motion as the settlement negotiations resumed. He did not recall who gave him those instructions.

[190] The plaintiff denied that she gave those instructions to Mr. Marzban. She said that nothing happened with the affidavit and she did not know why. Mr. Marzban did not say anything more to her about the numbered companies and the matters raised in the affidavit. She said that when she spoke to Mr. Newton he just told her that he was going to do a “labour only” contract with J.S. Jones, and that he and Mr. Brewer had set it up so that she would not have a claim to it. She said that she told Mr. Hubley this, but he gave her no advice about it.

May to August 2001 – the settlement negotiations

[191] The plaintiff testified in chief that from May until August she understood that the defendants were continuing to value her shares, and Mr. Brewer and Mr. Hubley were working to come up with an agreement. She said that all she recalled was an offer in May, and an issue about security later in the summer. She said that she did not remember specific conversations or receiving any information from Mr. Hubley. Nor did she recall being at his office. She did agree that they communicated by phone several times a month.

[192] On cross-examination, however, the plaintiff agreed that in some respects there was a fairly constant back and forth discussion and negotiation from May to August. She also acknowledged that Mr. Hubley was in contact with her throughout that process, and that he kept her well apprised of what was going on. However, she had little recollection of their discussions, and said that she did not recall him reviewing offers and counteroffers with her.

[193] Mr. Hubley’s timesheets indicated that during those months he spent over 16 hours with the plaintiff at 12 different meetings, and they spoke on the telephone at least 26 times. His testimony and file documents provided specific details of the advice he gave her and the instructions he received during the negotiations with Mr. Brewer and Mr. Newton.

[194] Mr. Hubley said that the plaintiff’s instructions throughout the negotiations remained that she wanted a fair and quick settlement, but if she could not get that she wanted to be sure that court proceedings were being advanced to minimize delay. She told him that she was having some financial difficulty as she no longer had the funds or the lifestyle that she had enjoyed during the marriage. Mr. Hubley said that he was not aware of the steps being taken in the matrimonial litigation during this time, but the plaintiff told him that she was in contact with Mr. Marzban.

[195] The plaintiff testified that apart from some discussion about setting a trial date, she had few conversations with Mr. Marzban between May and August 2001. She believed that Mr. Hubley kept Mr. Marzban in the loop on the negotiations. She said that she did not talk to Mr. Marzban about how to proceed with her action against Mr. Newton, but agreed that there were times when he applied pressure on Mr. Newton by heating up the court process.

[196] Mr. Marzban testified that during the negotiations the plaintiff and Mr. Hubley called him periodically to report on their status and seek his advice. His time records show sporadic communication. Mr. Marzban said that there was some “slippage” as he did not record all telephone calls, particularly when they were brief. Mr. Hubley’s time records support that, as they record calls with Mr. Marzban that do not appear in Mr. Marzban’s records. Mr. Marzban recalled little of the content of these calls.

[197] Mr. Hubley testified that on May 1, 2001 he and the plaintiff met with Mr. Newton and Mr. Brewer to discuss an approach to the negotiations. He said that Mr. Newton and Mr. Brewer agreed that they would negotiate on commercial principles, and that they wanted to settle rather than go to court. They were firm that some consideration for Mr. Newton’s income tax issues would be important in reaching a settlement. Mr. Hubley said that he made it clear that they must negotiate on the basis that the ABG was a going concern. They agreed that Mr. Hubley and Mr. Brewer would meet as soon as possible to exchange their positions.

[198] The plaintiff testified that she could not recall this meeting, and denied that she was involved in a discussion about negotiating using commercial principals.

[199] Mr. Hubley testified that on May 2, 2001 he met with the plaintiff to discuss their negotiation strategy. He said that they spoke about Mr. Brewer’s stubbornness, and the need to come up with arguments that would allow him to save face if he moved from his liquidation position. They identified some strategies to accomplish that.

[200] The plaintiff testified that she could not recall this meeting, but denied that they discussed giving Mr. Brewer options to allow him to save face as a settlement strategy.

[201] Mr. Hubley testified that on May 7, 2001 he met with the plaintiff and her mother. He had prepared a detailed two-page analysis of the parties’ needs, objectives and purposes as a guide for the negotiation. This defined the plaintiff’s objectives as fair compensation and certainty of payment, and Mr. Newton’s objectives as affordability and flexibility. He also prepared a schedule outlining five potential scenarios based on the numbers that had been discussed up to that point. Mr. Hubley testified that he reviewed this analysis with the plaintiff and her mother to ensure that the plaintiff knew how he was going to approach the negotiations. He said that he told the plaintiff that, at the high end, he thought she could get close to $1.7 million in a negotiation based on Mr. Harder’s top numbers, a tax concession for Mr. Newton, and an acknowledgement of the $87,500 Start-up Loan.

[202] The plaintiff initially testified that this meeting on May 7, 2001 did not happen, and said that her mother was never at a meeting with her and Mr. Hubley. Under cross-examination, however, she did recall her mother being at a meeting, and discussing some of the objectives set out in Mr. Hubley’s notes.

[203] Mr. Hubley and Mr. Brewer met on May 10, 2001. They did not discuss numbers, but focused on the terms and conditions that would satisfy each side in a settlement. The following day, Mr. Hubley sent Mr. Brewer a memo summarizing their discussions, and setting out the terms that were necessary to satisfy the plaintiff’s need for certainty of payment. These included a general security agreement and holding her shares in escrow until full payment was made. The memo proposed using asset sales to pay the plaintiff, and suggested limits on Mr. Newton’s draws beyond a base salary of $10,000 unless the plaintiff received equal payments. It stated a requirement for a significant down payment and stipulated that the plaintiff would be paid the balance in monthly instalments of $5,000 + $0.75 per cubic metre logged. It conceded that interest would not be payable on the outstanding balance for two years. Finally, it raised the concern that Mr. Newton not divert logging activities from the ABG to Westwood after the settlement, thereby limiting the plaintiff’s payments based on monthly logging revenue. Mr. Hubley testified that he and the plaintiff knew that Mr. Newton had just incorporated Westwood but they did not know what it was doing.

[204] Mr. Hubley said that he reviewed this memo with the plaintiff and discussed the need for security, but at this point she was more concerned about the amount of her settlement. She began to appreciate the importance of security as the negotiations proceeded.

[205] The plaintiff testified that she could not recall discussing the issues set out in this memo with Mr. Hubley.

[206] On May 18, 2001, Mr. Brewer called Mr. Hubley and told him that he was concerned that the company could not afford Mr. Harder’s going concern value, and that Mr. Harder had over-valued the Duke Point operation. He took the position that the Start-up Loan was a family asset and said Mr. Newton would not repay it. He asked for a list of all of the family assets from the plaintiff before the negotiations went further.

[207] Mr. Hubley said that he asked the plaintiff to prepare a list of the family assets, but told her several times that he did not know what her entitlements to those would be. He understood that she was dealing with Mr. Marzban about them.

[208] The plaintiff prepared a list of the family assets of both parties, comprised of real estate, vehicles, personal effects, and Westwood. She also listed their values, which totalled $605,000, including an estimate of $60,000 for Westwood, $80,000 for equity in Mr. Newton’s new home, and $87,500 for the Start-up Loan. The plaintiff agreed that Mr. Hubley gave her no advice about these personal, as opposed to corporate, family assets. She gave the list to him, and he sent it on to Mr. Brewer.

[209] Mr. Hubley said that he and Mr. Brewer had agreed that he was to present an offer. On May 24, 2001, the plaintiff left him a voice mail message that she would accept $1.75 million for her share in the ABG.

[210] Mr. Hubley relayed that to Mr. Brewer, who replied that Mr. Newton did not want to negotiate in two stages, and he wanted an all-inclusive number that included all family assets. Mr. Hubley discussed this with the plaintiff on May 25, 2001, and she told him she would accept $2 million for her interest in all of the family business and personal assets. Mr. Hubley passed that on to Mr. Brewer.

[211] The plaintiff testified that she chose the $1.75 million figure on her own, and it did not arise from a recommendation by Mr. Marzban or Mr. Hubley. She said that she based it on the information she received from Mr. Harder, and it looked like a good number to her. She agreed that when the other family assets were introduced to the negotiation, she added another $250,000, and instructed Mr. Hubley to offer an all-inclusive settlement of $2 million without any discussion or advice. She said that she gave these instructions because she did not know how the legal process worked, or what she should do, and she was not getting any help with it. She was trying to do anything to come up with a settlement.

[212] Mr. Hubley made an offer of $2 million to Mr. Brewer on May 25, 2001. Mr. Hubley said that Mr. Brewer telephoned him and complained that the plaintiff was not negotiating, as she was still stuck at $2 million. Mr. Brewer warned that unless there was movement there was no sense in negotiating any further.

[213] Mr. Hubley said he discussed this with the plaintiff. They saw no point in bidding against themselves by making another offer, and they agreed that Mr. Hubley and Mr. Brewer should meet again.

[214] On May 28, 2001, Mr. Marzban’s office booked a five-day trial for the week of January 14, 2002 in Vancouver on the plaintiff’s instructions.

[215] Mr. Hubley and Mr. Brewer had a lengthy meeting in June. Mr. Hubley said that for the first time Mr. Brewer was willing to discuss valuing the plaintiff’s shares at $1.3 million, but he wanted a deduction from that representing a tax concession for Mr. Newton. He offered two different scenarios with respect to taxes.

[216] The scenario to which the plaintiff later agreed gave her approximately $1.08 million for her shares. She was to apply her available capital gains exemption of about $400,000 to the share value of $1.3 million, so that only $900,000 of the purchase price would be taxable. This would give Mr. Newton the benefit of bumping up the adjusted cost base of the shares that he would receive from the plaintiff. There would be a spousal rollover under s. 73 of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) with respect to the remaining $900,000. Mr. Newton would also receive a deduction of $220,000 from the purchase price, representing the potential tax that he would have to pay on the $900,000 if he sold the company.

[217] Mr. Hubley said that Mr. Brewer gave him Mr. Newton’s list of personal assets, which totalled $278,000. The list did not include Westwood, Mr. Newton’s new home, or the start-up loan. It did include $30,000 for the Midland Walwyn Shares that the plaintiff had cashed in for $65,000 in June 2000 without Mr. Newton’s knowledge. It also indicated that Mr. Newton would receive the Powell River Property, as Mr. Brewer took the position that since it provided housing for the ABG employees it was a company asset.

[218] Mr. Hubley said that after this meeting he prepared a two-page review of Mr. Brewer’s offer and the remaining issues, and met with the plaintiff on June 25, 2001 to discuss these. Mr. Hubley said that he went through his notes with the plaintiff, and explained that Mr. Brewer had moved significantly in accepting Mr. Harder’s going concern value of $1.3 million. He explained the tax concession of $220,000 that Mr. Newton wanted. He told her that he thought that the ABG would pay $55,000 toward her professional and legal fees. He set out their real property which they proposed would be split equally. He showed her that all of this produced a total of just over $1.8 million, which meant that they were getting close to the number she wanted. He said that the plaintiff was happy about this.

[219] Mr. Hubley said they also discussed issues that still required resolution. These included security, the value of the Midland Walwyn Shares, repayment of her shareholder draws which were at $62,700, and a possible discount in the settlement amount if Mr. Newton paid the plaintiff early.

[220] At the bottom of Mr. Hubley’s handwritten review prepared for this meeting is a note written in different handwriting that reads:

Dinyar: claim for alimony on management contract with WW? Can I reserve my rights to alimony if I put a claim for alimony? He may say F- it? So I can reserve for a later date.

[221] Mr. Hubley thought that the writing looked like the plaintiff’s, although he could not be sure. He said that around that time she was thinking of whether she would get spousal support. She told him at some point that she was not worried about that as she could always go back and get support later, so he need not look into it. Mr. Hubley said he would not have looked into it if she had asked him to, as he had no idea how to deal with that issue. He told her to speak to Mr. Marzban about support and she said that she would. Mr. Hubley said that he had only discussed support with the plaintiff in a general way. She had asked him if he had ever seen a settlement with no support paid, and he told her that one of his partners had had a divorce settlement that did not include support.

[222] The plaintiff was shown Mr. Hubley’s notes from this meeting. She said that she could not recall discussing many of the things they set out. She testified that it was possible that Mr. Hubley sometimes discussed numbers and concepts that she did not understand and therefore could not recall. She said that she often did not even get the gist of what he was saying and that at one point she asked him a question, and he became a little bit agitated because she did not understand.

[223] The plaintiff denied that Mr. Hubley explained to her that that the value for her shares in the ABG was $1.3 million, and said that she did not know that until much later. She said that she did not recall discussing the tax issues with Mr. Hubley. She said that she recalled something about Mr. Newton requiring concessions around June 2001, but she did not remember agreeing to deduct $220,000 for tax to achieve a deal, or that there was any tax concession in the ultimate settlement. Nor did she recall discussing an issue with respect to the value of the Midland Walwyn Shares. She denied that she wrote the note about alimony at the bottom of Mr. Hubley’s notes. She had no explanation for that note, but was insistent that she never discussed alimony with Mr. Marzban.

[224] Mr. Hubley and Mr. Brewer exchanged memoranda on June 25 and 26, 2001 that summarized the status of the negotiations. At this stage, they had agreed to the share value and tax concessions, and to a number of elements in the payment plan. Most of the issues related to personal property had been settled on the basis that these assets, or the proceeds from their sale, would be split equally. Outstanding issues included treatment of shareholder draws by both parties, payment of professional fees, the Powell River Property, use of the plaintiff’s capital gains exemption, security, interest, the role of Westwood, and the Midland Walwyn Shares.

[225] Mr. Hubley met with the plaintiff on June 28, 2001 to discuss the status of the negotiations. He said that at the conclusion of the meeting she instructed him to continue to try and negotiate the numbers they were looking for.

[226] Mr. Hubley testified that the issue with the Midland Walwyn Shares was ultimately resolved by a trade-off with the Powell River Property which they agreed had equity of $40,000. When Mr. Brewer pressed for further information about the value of the Midland Walwyn Shares, Mr. Hubley said that the plaintiff instructed him to drop her demand for the Powell River Property if Mr. Newton dropped his demand for half of the proceeds from the sale of the shares.

[227] The plaintiff testified that she did not recall making any kind of deal to fix the problem created by her unilateral sale of the Midland Walwyn Shares.

[228] Mr. Hubley testified that in early July the plaintiff told him that Mr. Newton had said that it looked like things were going to settle and she was going to get $1.75 million. When Mr. Hubley mentioned this to Mr. Brewer, however, his response was “not in your lifetime”. Later, Mr. Brewer called Mr. Hubley and told him that the process was not working, that Mr. Newton could not afford to pay the plaintiff that much money, and that Mr. Newton was “going logging”.

[229] The plaintiff recalled being told something to this effect by Mr. Hubley.

[230] Around this time, Mr. Hubley conceived the idea of a retiring allowance of $145,000 as a possible means of avoiding Mr. Brewer’s demand that the plaintiff repay her draws from the ABG, which by now were about $72,500. The retiring allowance would let the plaintiff keep the draws, and allow the ABG a tax deduction to the point that the company would be cash flow neutral. Mr. Hubley knew she did not want to attract tax on any part of her settlement, and so he discussed the concept with the plaintiff on the phone before proposing it to Mr. Brewer. He explained to her that she could mitigate the tax consequences of the retiring allowance through the available room in her RRSP contributions, which was around $100,000. He then sent Mr. Brewer a memo with this proposal on July 9, 2001.

[231] The plaintiff agreed at trial that she knew that her shareholder draws had to be addressed in reaching a settlement, and that she understood that Mr. Hubley negotiated a retirement allowance so that she did not have to pay them back.

[232] On July 12, 2001, Mr. Marzban sent Mr. Hubley copies of the documents that the plaintiff had attached to her affidavit in April to enable Mr. Hubley to discuss Mr. Newton’s personal draws from the ABG with Mr. Brewer.

[233] Mr. Hubley testified that he met with the plaintiff on July 13, 2001 to discuss the status of the negotiations and the outstanding issues in light of the objectives they had set in early May, and to obtain her instructions as to how she wanted to proceed. He said that he prepared three pages of notes which he reviewed with her at this meeting, and they covered the following:

a) The share value being discussed at that point was $1.3 million. The plaintiff had $420,000 available to her in capital gains exemptions, and after the tax concession of $220,000 to Mr. Newton she would net $1.08 million for her shares. When her shareholder’s loan and bonus were added, the total for her share of the ABG would be $1.672 million.

b) The plaintiff’s eligible RRSP room of $92,500 could be used to reduce the tax on the retiring allowance received from the ABG.

c) The total cash that the plaintiff could anticipate at the end of the deal would be $1,758,500, comprised of the settlement amount, the retirement allowance, and her share of the personal assets, less her draws and her share of professional fees.

d) The plaintiff had close to 94% of what they had thought they could get, but security remained a significant issue to be raised in further negotiations with Mr. Brewer.

[234] With respect to the Start-up Loan, Mr. Hubley testified that Mr. Newton’s position remained that it was a family asset. The plaintiff told him to negotiate as best he could around the numbers they had, but ultimately they abandoned an independent claim for this.

[235] Mr. Hubley said that at the end of the meeting, the plaintiff instructed him to continue to negotiate and to try to improve on any of the items that he could. Mr. Hubley also testified that during July, when he discussed the numbers with the plaintiff, he always let her know that if she did not like where they were at, there was the option of going to court to improve on the amount, and he directed her to talk to Mr. Marzban if she wanted to do that.

[236] The plaintiff testified that she had no recollection of this meeting. When she was shown Mr. Hubley’s notes, she denied that he presented them to her, or took her through the numbers in them that represented the offer at that time. She reiterated that it was possible that Mr. Hubley discussed a lot of numbers and concepts with her during this time frame that she did not understand and therefore does not recall.

[237] On July 13, 2001, Mr. Hubley telephoned Mr. Marzban to discuss the difficulties he was having in getting security for the plaintiff, and to get some guidance about what they might do to protect her if Mr. Newton decided to walk away from the ABG and she could not be paid out. He said that Mr. Marzban confirmed the importance of obtaining security.

[238] Mr. Hubley testified that on July 16, 2001 Mr. Brewer told him that the invoices regarding Mr. Newton’s personal expenses would be charged against his shareholder’s loan. Mr. Hubley told the plaintiff, and she was not happy as she felt Mr. Newton was benefiting from the company, but she did not alter her instructions with respect to continuing the negotiations.

[239] On July 17, 2001, Mr. Hubley wrote a long memo to Mr. Brewer about the plaintiff’s need for security. He reviewed the course of the negotiations and the concessions made by the plaintiff to meet Mr. Newton’s needs. He said that now she needed Mr. Newton to recognize her need for security. Mr. Hubley raised the fact that despite Mr. Newton’s personal commitment to pay the settlement, current economic issues in the forest industry could put her at risk. Mr. Hubley testified that he discussed the issues in this memo with the plaintiff and told her he intended to be as stubborn as he could on the security issue.

[240] On July 18, 2001, Mr. Brewer advised that security was not an option. He said that the funds available to the plaintiff immediately under the present offer placed her in a better position than if the company were liquidated.

[241] Mr. Hubley said that he met with the plaintiff on July 19, 2001. He said that he explained to her that Mr. Newton was digging in his heels on security and they needed to find a way around that, or they would not be able to settle.

[242] The plaintiff could not recall this meeting, although she did recall that there was an impasse over security.

[243] Mr. Hubley continued to discuss security with Mr. Brewer. However, on July 23, 2001, Mr. Brewer took the position that discussions had broken down. Mr. Hubley said that the same day the plaintiff called and told him that she had discussed security with Mr. Voith, and that he agreed that she should pursue it. Mr. Hubley told her that the discussions had broken down, but he would come up with a plan. He said that the plaintiff was disappointed, but understood it was in her best interest to get security.

[244] The plaintiff testified that she did not recall discussing the matter of security with Mr. Voith, and she thought that this was unlikely.

[245] Mr. Hubley testified that on July 24, 2001 he met with the plaintiff to discuss security, as well as advancing the legal proceedings since it appeared they could not get past the security impasse. He told her to talk to Mr. Marzban about this as he could not advise her on legal issues.

[246] The plaintiff said she did not recall the option of going to court coming back into the scenario at that time, or speaking to Mr. Marzban about this. She agreed that she instructed Mr. Hubley to continue to speak to Mr. Brewer about a way to solve the security problem.

[247] Mr. Hubley testified that Mr. Brewer called him on July 24, 2001 to discuss parameters for winding up the ABG. Mr. Hubley said he believed that Mr. Brewer was just posturing, but he spoke to Mr. Marzban about Mr. Brewer’s call.

[248] Around this time, the plaintiff obtained documents from the ABG’s office that indicated that Westwood was overdue in paying an invoice of over $486,000 to Hayes Forest Services Limited for heli-logging at Pitt Lake in May and June, and that J.S. Jones had sent a cheque to Westwood to cover this. The plaintiff claimed that she did not read these documents beyond noting they had to do with Westwood, but said that she gave them to Mr. Hubley as she thought they were significant. She denied that she knew that Mr. Marzban could obtain additional information about Westwood if she wished, and said she did not ask him about this. She said that no one gave her advice about these documents.

[249] Mr. Hubley faxed the documents to Mr. Marzban on July 24, 2001. Mr. Marzban believed that they showed that Mr. Newton was doing a fair bit of work through Westwood, but they gave no indication of profitability. Mr. Marzban remained of the view that Mr. Newton was entitled to go off and do his own thing. His time records show a lengthy telephone call with the plaintiff and Mr. Hubley that day, and he testified that he believed they discussed the significance of the documents, but no action was taken.

[250] On July 27, 2001, Mr. Marzban delivered a formal notice of trial to Mr. Mortimer, confirming the trial date of January 14, 2002 set earlier.

[251] Mr. Hubley said that on July 30, 2001 he met again with the plaintiff to provide an overview of the financial aspects of the settlement. He gave her a typed analysis demonstrating the cash flow impact of the various RRSP alternatives she could use to demonstrate how the settlement was modified by the retiring allowance, and how much money she would receive at the end of the process. He said that they also discussed the ongoing security issue, and he suggested that she speak directly to Mr. Newton about it.

[252] By this point, the plaintiff and Mr. Newton were on good terms, and had even resumed intimate relations. Mr. Hubley said that the next day the plaintiff told him that Mr. Newton had agreed to grant security, and Mr. Hubley was to contact Mr. Brewer to make the arrangements. Mr. Hubley did so. The end result was that Mr. Newton provided security covering about 81% of the outstanding balance owed to the plaintiff, primarily from a general security agreement over the ABG assets, and mortgages on personal property owned by him.

[253] The plaintiff said she could not recall speaking to Mr. Newton in late July about the issue of security, and denied that she had done so. She testified that the issue was resolved by Mr. Hubley and Mr. Brewer.

[254] Once the issue of security was resolved, the remaining aspects of the proposed settlement fell into place. Mr. Hubley testified that on August 14, 2001 he faxed the plaintiff a three page summary of the proposed settlement, showing how much she could expect to receive immediately, and the security she would have on the outstanding balance.

[255] The terms dealing with proposed payments to the plaintiff indicated she would receive a total of $1,771,000, prior to deductions for a portion of Mr. Harder’s fees, and the anticipated RRSP contribution to cushion the tax liability related to the retirement allowance. $1.6 million of that amount represented the purchase price of her interest in the ABG, comprised of $1.08 million for her shares, and $592,000 for her shareholder’s loan and 2000 bonus. The balance of the settlement amount was comprised of the retiring allowance of $147,500 and a contribution of $30,000 toward Mr. Harder’s fees. She was to receive $400,000 on signing the agreement. The balance was payable by monthly instalments of $5,000 plus 75 cents per cubic metre logged by the ABG, excluding logging done under the Westwood contract with J.S. Jones. No interest was payable on the outstanding balance for the first two years. Mr. Newton was to receive the Powell River Property. The proceeds from the sale of the Matrimonial Home and the Lantzville Property were split equally. Those amounts were not included in the $1,771,000 received by the plaintiff. The proposal made no reference to spousal support. The settlement was subject to the approval of GEC and HSBC pursuant to the ABG’s financing commitments.

[256] Mr. Hubley met with the plaintiff to review these terms. He said that he explained to her that this was the best he could get for her in the negotiation, and told her that if she had any issues about agreeing to it to let him know. Otherwise he would tell Mr. Brewer that they had an agreement.

[257] The plaintiff testified that she recalled a meeting like this, but said that she did not recall all of the numbers. She agreed that the deal presented to her on August 14, 2001 was consistent with what she had asked Mr. Hubley to negotiate for her.

[258] On August 20, 2001, the plaintiff told Mr. Hubley she would accept the proposal. Both parties expected that the proposed settlement would be reviewed by their respective lawyers. Mr. Hubley accordingly reported the settlement to Mr. Marzban, who advised him that they should retain a corporate lawyer to draft the security and settlement documents. Mr. Hubley retained Mr. Thomas English to do that.

[259] Mr. Hubley wrote to Mr. Brewer on August 23, 2001 confirming the terms of the settlement.

September to December 2001 – the conclusion of the settlement

[260] Mr. Hubley testified that during September he had some further negotiations with Mr. Brewer over the plaintiff’s draws, which were now over $80,000. She remained upset with what she believed to be Mr. Newton’s use of company funds for his own purposes, when her monthly payments of $5,000 from the ABG were not sufficient for her living expenses. When Mr. Hubley asked Mr. Brewer about this he remained firm that she must repay her draws, and reiterated that Mr. Newton’s expenses were being charged back against his shareholder’s loan.

[261] On September 28, 2001, Mr. English provided a draft separation agreement to Mr. Marzban, Mr. Hubley, and Mr. Moore, the ABG’s corporate counsel. This included a release of spousal support by both parties, a term not included in the settlement reached by Mr. Hubley and Mr. Brewer.

[262] On October 2, 2001, Mr. Marzban met with the plaintiff, her sister, and Mr. Hubley in Nanaimo to review and discuss the draft agreement. The details of this discussion are reviewed later in these Reasons. By way of summary, Mr. Marzban said he went through the agreement clause by clause to ensure that the plaintiff understood the terms. He discussed the valuation, and questioned the exclusion of spousal support and Westwood from the agreement. He said he did not make a recommendation to the plaintiff with respect to whether she should accept the settlement, but advised her that he felt that the terms were within the range of likely outcomes. In essence, he told her that she could do better or she could do worse if the matter proceeded to trial. Mr. Marzban said that at the end of the meeting the plaintiff indicated that she was going to go with the settlement.

[263] The plaintiff testified that it was quite a long meeting, and she recalled reviewing the agreement with Mr. Marzban clause by clause, but she could not recall what he or Mr. Hubley said. She said that she thought that Mr. Marzban had drafted the agreement and she understood that he was happy with it. He did not raise any concerns about it and neither did she, although she agreed that she had the opportunity to do so. She said that quite often she did not understand some of the legal wording, but she did not question it. She said that she settled on these terms as her advisors told her they were good. She said she was prepared to release her claim to spousal support under the agreement as she understood that she was not entitled to it, based on the advice she said she had received from Mr. Hubley.

[264] After the meeting Mr. Hubley and Mr. Marzban gave Mr. English comments on the agreement that Mr. English incorporated into a new draft.

[265] On October 9 and 10, 2001, Mr. Brewer and Mr. Hubley had further discussions about the plaintiff’s draws, as she had taken a further $8,000 from the ABG. Mr. Hubley relayed Mr. Brewer’s concern to the plaintiff.

[266] On Mr. Newton’s side, Mr. Mortimer testified that he discussed the final settlement with Mr. Newton through Mr. Brewer and thought it was a good settlement from the point of view of both parties. He did not believe that they could have obtained this kind of structured settlement through the courts had the matter been litigated and, as he understood it, there was not enough cash available in the ABG for Mr. Newton to pay out the settlement as a lump sum.

[267] In the course of concluding the settlement, Mr. Mortimer requested that a consent order be done incorporating the terms of the agreement and Mr. Marzban agreed. The order was entered on January 10, 2002.

[268] On November 2, 2001, Mr. English met with Mr. Hubley and the plaintiff in Nanaimo to review and execute the security and settlement agreements. He said he went through the settlement agreement clause by clause with the plaintiff to ensure that she understood its terms, and she executed it.

[269] The plaintiff said that she understood the basics of the agreement, but not the legal wording. She said that she did not tell Mr. English or Mr. Hubley that, or ask questions, since Mr. Marzban had already approved it, and she assumed her advisors were working in her best interests.

[270] Mr. Newton obtained the approval of the GEC and HSBC to pay the down payment of $400,000 to the plaintiff from his shareholder’s loan account in the ABG. The plaintiff came to Mr. Hubley’s office to pick up that payment shortly after she signed the documents. Mr. Hubley said that she was happy the ordeal had come to an end, and she told him that she was happy with the settlement. He suggested to her that she had a decent amount of money, and that if she invested it properly and took on employment, she could look after herself quite well in the future. He said that the plaintiff replied, “You’re not my father, don’t tell me how to spend my money.”

[271] The plaintiff recalled meeting with Mr. Hubley at his office to receive her cheque but denied the exchange related by Mr. Hubley.

After 2001

[272] Mr. Hubley remained involved in overseeing the payments under the settlement until the fall of 2003, when Mr. Brewer advised that Mr. Newton wanted to pay out the plaintiff. She accordingly received the full payment of the settlement by the end of October 2003.

[273] In mid-2002, the plaintiff consulted a lawyer with respect to commencing an action against Mr. Newton to re-examine the settlement agreement or revisit the issue of spousal support. That lawyer expressed concern about the merits of such an application as the settlement had been merged into a court order.

[274] The plaintiff consulted a second lawyer who commenced a Supreme Court action against Mr. Newton in October 2003 seeking to set aside or vary the consent order and the settlement agreement. The statement of claim in that action includes this statement:

The Defendant threatened and pressured the Plaintiff into signing the agreement and consent order prior to disclosing all of the relevant information and material facts regarding the Defendants assets. The Plaintiff relied on the Defendants representations as to the nature of the value of the Defendants assets and financial position. At the relevant times, the Plaintiff and Defendant had a special relationship such that the Defendant influenced or controlled the Plaintiff to his advantage.

[275] There is no evidence that the defendants were aware of threats or pressure from Mr. Newton during the negotiations conducted by Mr. Hubley, or when the settlement was concluded. At the time of this trial, the plaintiff had not proceeded with that action.

OBSERVATIONS ON WITNESSES – THE CREDIBILITY OF THE PARTIES, THE ABSENCE OF MR. NEWTON AND MR. BREWER

[276] Credibility is a significant issue in this case. Many of the plaintiff’s allegations focus on advice and instructions given or not given, and her testimony about her communications with the defendants diverged significantly from theirs. My views on credibility play a significant role in my findings of fact.

[277] The plaintiff’s recollection of her dealings with the defendants was significantly limited and often inconsistent. While some lapse of memory is understandable when testifying about events that occurred six years ago, her evidence in chief was remarkable for its gaps. For example, her account of events jumped from the affidavit prepared in April to the final settlement in October with almost no mention of the extended negotiations that took place in that time frame. While cross-examination produced a somewhat fuller account of events, it also revealed internal inconsistencies in her testimony.

[278] The plaintiff attempted to explain her lack of recollection by saying that she was unable to understand many of the complex matters the defendants, and particularly Mr. Hubley, discussed with her and so cannot recall them. While that might apply in some instances, it fails to explain her inability to remember the details of almost every encounter she had with the defendants. Instead, I had the impression that either she was so focussed on her “bottom line” throughout the negotiations that she was not interested in nor attentive to the advice she received, or that her lack of recollection is deliberate.

[279] The plaintiff’s limited memory of her communications with the defendants did not prevent her from testifying with certainty as to advice the defendants failed to give her. For example, she agreed that she could not recall what was discussed during a lengthy meeting with Mr. Hubley on March 1, 2001. Yet, when it was suggested that they talked about Mr. Harder’s role and the fact that she could always pursue her claim through court, she adamantly denied this. Such evidence appears selective and self-serving, and is difficult to accept.

[280] At times her evidence was demonstrably false. For example, she said that she was the person who wrote “Dinyar” on notes Mr. Hubley made when speaking to her on April 2, 2001. It is difficult to understand how that could be, as they were talking on the phone. She also denied that she wrote a note about “Dinyar” and “alimony” on Mr. Hubley’s notes of their June 25, 2001 meeting although that note, written as it is in the first person, could only have been made by the plaintiff.

[281] At times, the plaintiff tried to avoid damaging admissions or explain inconsistencies by quibbling over the use of particular words. For example, she denied that she gave her advisors “permission” to do things on her behalf. When pressed, she acknowledged that she did give them instructions but said she did not use the word “permission” in doing so. When challenged on her statement that she never instructed anyone to negotiate for her, she said that she did not use the word “negotiate”, but agreed that she asked some of her advisors to do things for her in the context of the negotiations. She testified that she did not understand that she could go to court as she did not know what the word “litigate” meant. I find that statement incredible in the context of her extended matrimonial dispute.

[282] I am left with serious reservations as to the reliability and credibility of the plaintiff’s evidence.

[283] By contrast, I found Mr. Hubley a credible, careful and straightforward witness. He presented as a practical and conscientious advisor, with an organized and detailed approach to both the events that transpired and his testimony about them. He was quietly certain in his description of his dealings with the plaintiff, and his evidence had no suggestion of embellishment. His memory was assisted and supported by his comprehensive notes, time records, and the handwritten presentations he had prepared specifically for his discussions with the plaintiff.

[284] I find that Mr. Hubley provided by far the most complete and accurate account of the events. Where the plaintiff or the other defendants have given uncorroborated evidence that is at odds with Mr. Hubley’s testimony, I prefer the evidence of Mr. Hubley.

[285] Mr. Harder was methodical and clear in describing the steps he took to value the ABG, and his dealings with Mr. Brewer and Mr. Newton. He was less clear in his account of his dealings with the plaintiff. He had a limited recollection of their discussions, which was not greatly assisted by his abbreviated notes of those encounters. For example, although he said he was concerned about confirming his instructions during the conference call on April 2, 2001, he had no recollection of what was discussed during the call. I nevertheless found him credible as to the events he recalled. There were no significant internal inconsistencies in his evidence, and I did not discern any attempt by him to reconstruct events in a manner that assisted his defence.

[286] Mr. Marzban was also a credible witness, but his evidence was significantly limited by his inability to recall many of his communications with the plaintiff and the other defendants. He had virtually no written record of his instructions or the advice he provided after his initial meeting with the plaintiff on October 25, 2000. Although he was able to provide a detailed account of his own analysis of the legal issues that arose during his retainer, it was difficult to discern how much of this he imparted to the plaintiff. He was, however, straightforward in conceding these difficulties and made no attempt to fill in the gaps in a self-serving manner.

[287] Mr. Newton and Mr. Brewer did not give evidence. Statements reportedly made by them to others were admitted by agreement of counsel, on the understanding that they are relevant to the state of mind of other witnesses, but not admissible for their truth. No adverse inference can be drawn from their absence since they were adverse in interest to all of the parties to this action during the matrimonial dispute. Nevertheless, their absence creates a difficulty in reaching reliable conclusions on some of the issues before me.

THE NATURE OF THE PLAINTIFF’S MATRIMONIAL CLAIM

[288] I find it useful to define at the outset the elements of the plaintiff’s matrimonial claim against Mr. Newton, which provided the context for the defendants’ actions, and for my analysis.

[289] The plaintiff advanced a claim for division of family assets under Part 5 of the F.R.A. and for spousal support under s. 15.2 of the Divorce Act.

[290] There were two main issues with respect to the assets. The first was the value of the ABG. It was the Newtons’ major asset, and its valuation was the most significant and contentious issue between them. The second was whether Westwood, Mr. Newton’s new corporate endeavour, had a role to play in the plaintiff’s claims.

[291] The rest of the family assets were comparatively minor, and it was evident early in the dispute that the parties agreed on their values and that they would be divided equally. The only exception was the allocation of the Powell River Property to Mr. Newton, and the Midland Walwyn shares to the plaintiff, an exchange that operated to her benefit in terms of their respective values. Given the limited and uncontroversial role that these assets had, I have not considered them in my analysis.

[292] The plaintiff also advanced a claim for spousal support. All of the lawyers who testified at this trial held the view that at the time of the plaintiff’s matrimonial dispute, the law was clear that her entitlement to support could only be determined after the result of the division of assets was known. The decision in Newson v. Newson (1993), 78 B.C.L.R. (2d) 35 (C.A.) had established a strong line of authority to the effect that, if a spouse received assets of substantial value, this often precluded an award for spousal support, particularly where there were no considerations of ill health, no children, and the spouse was able to work.

THE ALLEGATIONS AGAINST THE DEFENDANTS

[293] The parties agree that there can be concurrent liability in contract and tort for professional negligence: Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147 at paras. 49-53.

[294] They are also in substantial agreement as to the elements that must be established to succeed in an action for professional negligence. John A. Campion & Diana W. Dimmer, Professional Liability in Canada, looseleaf (Toronto: Carswell, 2007) at 3-18 [Campion & Dimmer] summarize these as follows:

1. A duty of care exists between the defendant and the plaintiff;

2. There has been a breach of that duty in that the defendant’s conduct is negligent or in breach of the standard of care required of him;

3. Damages have been suffered by the plaintiff which have been caused by the conduct of the defendant; and

4. That damage is reasonably foreseeable as arising from the defendant’s conduct or in other words the damages are not too remote a result of the defendant’s conduct.

[295] Each defendant has appropriately conceded that he owed a duty of care to the plaintiff. My analysis therefore begins with an examination of the standard of care, and whether any of the defendants breached the standard applicable to him in his dealings with the plaintiff.

General legal principles with respect to the standard of care for all professionals

[296] The standard of care defines the degree or content of the duty of care: Ryan v. Victoria (City), [1999] 1 S.C.R. 201 at para. 25. It guides the court in determining whether a defendant’s particular act or omission breached that duty.

[297] The standard of care imposed on all professionals shares a common core, described in Campion & Dimmer at 3-26:

A professional is required to exercise reasonable care, skill and knowledge in the performance of the professional service which has been undertaken. Thus, the professional will be judged by what is reasonable and appropriate to expect of a professional in the same calling exercising reasonable care and skill in similar circumstances. The standard of care is an objective one and it will not be sufficient to disprove negligence if the professional simply proves that he did the best that he was able to based on his skill and knowledge in the circumstances.

[footnotes omitted]

[298] While that standard is refined by the characteristics and responsibilities associated with the defendant’s particular profession, key common principles nevertheless emerge from the authorities.

[299] First, the terms of the professional’s engagement inherently inform the applicable standard of care and what is expected from that professional: Nussbaum v. Rajesky (1988), 3 R.P.R. (2d) 108 at paras. 12-17 (Ont. H.C.), aff’d (1991), 16 R.P.R. (2d) 78 (Ont. C.A.); Fasken, Campbell, Godfrey v. Seven-Up Canada Inc. (1997), 142 D.L.R. (4th) 456 at para. 59 (Ont. Gen. Div.), aff’d (2000) 182 D.L.R. (4th) 315 (Ont. C.A.); and Krabbendam v. Brito (November 10, 1998), Vancouver C961170, at para. 9.

[300] Second, a professional will not be found liable for an error in judgment unless that error was one that an ordinarily competent professional in the same field would not have made: Nichols v. Warner, 2007 BCSC 1383 at para. 106 [Nichols].

[301] Third, institutional professional standards or customs provide some evidence of the standard of care, but are not conclusive: Kripps v. Touche Ross & Co. (1997), 33 B.C.L.R. (3d) 254 at para. 73 (C.A.).

[302] Fourth, the standard of care will be judged on the standards in place at the time of the relevant events, and not with the benefit of hindsight: ter Neuzen v. Korn, [1995] 3 S.C.R. 674 at para. 47.

[303] Elements of the standard of care applicable to the different professions of each of the defendants will be discussed later in these Reasons.

Defining the Allegations against the Defendants

[304] Defining the precise allegations against the defendants, particularly Mr. Harder and Mr. Hubley, has been difficult for three reasons.

[305] First, during the trial the plaintiff pursued a number of allegations in addition to those set out in the Statement of Claim. Some of these were put forward by Mr. Barbour, the plaintiff’s expert, who testified to the standard of care of a chartered accountant and chartered business valuator. Others arose for the first time during the cross-examination of the defendants.

[306] The law is clear that the pleadings must define the issues between the parties, so that they may know the case to be met, and the court may know the matters to be determined: Brook v. Wheaton Pacific Pontiac Buick GMC Ltd., 2000 BCCA 332 at paras. 22-24; Homalco Indian Band v. British Columbia (1998), 25 C.P.C. (4th) 107 at paras. 5-6 (B.C.S.C.). I have accordingly limited my analysis to those allegations set out in the Statement of Claim.

[307] Second, paragraphs 26, 28(a), 32, and 36 of the Statement of Claim state that damages may be measured in two ways: first, the difference between the settlement that the plaintiff obtained and a more advantageous settlement; and second, the difference between the settlement obtained and the judgment that the plaintiff could have obtained and executed upon after a trial.

[308] During her closing argument, however, the plaintiff effectively conceded that she could not establish that a better settlement was available, given the intransigence of Mr. Newton and Mr. Brewer, and the multitude of factors at play in the negotiations. I find that the evidence clearly supports that view. There was nothing to indicate that some act by any of the defendants would have achieved a more advantageous settlement. The multiplicity of variables, and the absence of testimony from Mr. Newton or Mr. Brewer as to their side of the negotiations, make it impossible to determine what other outcome might have been available through the negotiations.

[309] This means that the plaintiff’s claim is based on her decision to settle rather than go to trial. Only those allegations that are related to that decision and to her state of mind when she made it are relevant. In my view, these fall into two main categories: allegations that the defendants omitted key steps in investigating her claim and so were not in a position to fully inform her; and allegations that they gave her erroneous or inadequate warnings and advice that led her to choose settlement instead of trial. My analysis deals only with the allegations that fall into one of those categories.

[310] Third, the pleadings with respect to Mr. Harder and Mr. Hubley, set out at paragraphs 34-38 of the Statement of Claim, include uncommonly broad allegations. Paragraphs 34 to 36 set out the general allegation that Mr. Hubley breached the standard of care of a chartered accountant in his advice to and representation of the plaintiff. Paragraph 37 states that the particulars of his breaches are the same as those alleged against Mr. Harder in paragraph 30 and Mr. Marzban in paragraph 27. Further complexity arises from paragraph 38 which reads:

In the premises, as Mr. Harder and Mr. Hubley undertook and did advise and represent Ms. Newton in relation to her ongoing matrimonial dispute and the Settlement, Mr. Harder and Mr. Hubley were subject to and owed Ms. Newton the same contractual duties and duty of care measured to the standards of a reasonably competent solicitor as alleged herein against Mr. Marzban, and further, breached such standards of care in the same manner as alleged against Mr. Marzban, thereby causing Ms. Newton damage, loss and expense.

[311] In effect, the plaintiff says that in acting as her advisors and representatives during her matrimonial dispute, Mr. Hubley and Mr. Harder assumed a role properly performed by a lawyer, and should accordingly be judged against the standard of care of a reasonably competent solicitor. In support of this position, the plaintiff relies on the decision of Cohen J. on a pre-trial motion brought by Mr. Hubley to strike an earlier version of similar pleadings: Newton v. Newton, 2005 BCSC 1880. Mr. Justice Cohen dismissed the motion, relying on the decisions in Drabinsky v. KPMG (1998), 41 O.R. (3d) 565 (S.C.J.), and Bolkah v. KPMG, [1998] E.W.J. No. 2937 (C.A.) Those cases dealt with the standard of care applicable when an accounting firm accepted an engagement to conduct a forensic investigation involving a former client. Mr. Justice Cohen stated at para. 16:

What I take from these authorities is the general principle that if a chartered accountant holds himself out as possessing special skill and knowledge to provide forensic accounting services then he undertakes to use care, knowledge and skill in providing those services. That is his clear professional duty to the client. However, in certain circumstances, the fair and reasonable standard of care and competence to be applied to determine whether the chartered accountant's duty has been met may be that of a solicitor.

[312] I do not agree that this statement serves to import the particulars of breaches alleged against Mr. Marzban to Mr. Hubley and Mr. Harder, or the particulars alleged against Mr. Harder to Mr. Hubley. The cases relied on by Mr. Justice Cohen dealt with issues of confidentiality and breach of fiduciary duty that are common to both the legal and accounting professions. Particulars of professional negligence, on the other hand, typically introduce standards related to the diverse training and experience of each of these professions.

[313] I accept that there are areas in which the duties of these professionals may overlap. For example, the rules of the Institute of Chartered Accountants of British Columbia (the “ICABC”) govern both Mr. Harder and Mr. Hubley. Rules 201.5 and 213.2 permit accountants to serve as advocates for clients, but prohibit advocacy that constitutes the practice of law. Thus, if Mr. Hubley and Mr. Harder, as chartered accountants, act as a client’s advocate in negotiating a commercial settlement, their role may mirror that of a solicitor. I do not agree, however, that their actions will therefore be judged by the standard of a solicitor. As long as their activities remain within the realm of accounting expertise, they will be judged against the standard of their own profession, which is informed by the training and expertise of that calling.

[314] Should they venture beyond their expertise and purport to provide legal advice in the course of commercial negotiations, I do not interpret Mr. Justice Cohen’s decision as importing a solicitor’s standard of care to measure that advice. Such an interpretation would make little sense. For example, many of the particulars of negligence related to Mr. Marzban are allegations related to actions that only a lawyer can perform, such as a failure to conduct an examination for discovery, or prepare for trial. Mr. Harder and Mr. Hubley are clearly not qualified to perform such services. If they undertook them, there would be no reasonable expectation that they would do so to the standard of a reasonable solicitor. Instead, they would be in breach of the standard of care of their own profession for venturing beyond their expertise. The breach would lie in doing such work at all.

[315] Finally, many of the allegations against Mr. Marzban in paragraph 30 deal with his failure to take action as a solicitor. It is nonsensical to allege that Mr. Harder or Mr. Hubley was negligent in failing to act as a solicitor when they were not qualified to do so.

[316] I conclude that the plaintiff’s attempt to impose the entirety of the solicitor’s particulars in paragraph 27 on Mr. Hubley and Mr. Harder, and the chartered business valuator’s particulars in paragraph 33 on Mr. Hubley, is ill-conceived. Having said that, I acknowledge that where some of those particulars cover areas of common expertise, they should be dealt with.

[317] The three issues I have outlined in this section guide my selection of the allegations that must be addressed with respect to each defendant later in these Reasons.

The Allegations Against Mr. Harder

[318] The plaintiff’s allegations against Mr. Harder centre on the thesis that no reasonable chartered business valuator would have valued the shares of the ABG at his figure of $2,635,000. She argues that this valuation significantly underestimated the value of the shares, resulting in a settlement that Mr. Newton was prepared to accept. She says that if Mr. Harder had performed his valuation to the standard expected of a reasonably competent business valuator, he would have produced a higher value, rendering settlement unlikely. She would have then proceeded to trial with that valuation and obtained a judgment well in excess of the settlement amount.

[319] Paragraph 33 of the Statement of Claim sets out the particulars of negligence alleged against Mr. Harder. There is some overlap in these. As discussed above, there is also the question of whether some of the particulars alleged against Mr. Marzban in paragraph 27 should be imported to Mr. Harder by virtue of paragraph 38. Having considered these matters, I am satisfied that the following list, cross-referenced to the relevant paragraphs in the Statement of Claim, fairly summarizes the allegations against Mr. Harder and the manner in which the case against him was presented and defended at trial:

1. Failing to give appropriate advice about and selecting an inappropriate valuation date of October 30, 2000 [para. 27(l)];

2. Relying on advice and information about the ABG from Mr. Brewer without question, and failing to obtain all necessary information for his valuation [paras. 33(g) and (i)];

3. Failing to consistently endorse the valuation of the ABG as a going concern, rather than on a liquidation basis, in particular, failing to use an appropriate equipment appraisal consistent with a going concern premise, and failing to advise the plaintiff of the implication of these matters [paras. 33(d) and (h)]. In particular:

(a) rejecting the AA Appraisal without a proper investigation [para. 33(b)];

(b) failing to obtain an appraisal based on the premise of fair market value in continuing use [para. 33(h)];

(c) relying on the Ritchie Bros. Appraisal which used an auction premise inconsistent with valuation as a going concern [paras. 33(b), (d) and (j)];

(d) failing to properly reconcile the differences in the asset list provided by Mr. Newton and Mr. Brewer, the AA Appraisal, and the Ritchie Bros. Appraisal [para. 33(e)]; and

(e) failing to give appropriate advice to the plaintiff about an equipment appraisal to be used in his valuation [paras. 33(c) and (h)];

4. Failing to take into account the equity held by the ABG in leased equipment [para. 33(f)];

5. Failing to discount the tax shield foregone [para. 33(a)];

6. Inappropriately taking on the role of an advocate in relation to the plaintiff’s matrimonial dispute and settlement [para. 38].

The law with respect to the standard of care of a chartered business valuator

[320] Decisions dealing with the standard of care applicable to valuators and appraisers acknowledge that these professions deal with matters of art rather than science, and that variations in their conclusions are therefore common. Nevertheless, their judgements must be exercised within acceptable standards of skill and expertise, and be based on rational assumptions: Phelan v. Realty World Realty Ltd. (1994), 38 R.P.R. (2d) 128 at para. 57 (B.C.S.C.); Kokanee Mortgage MIC Ltd. v. Concorde Appraisals Ltd., 2000 BCSC 1197 at paras. 51-55.

[321] This view was expressed in a context somewhat similar to this case in Debora v. Debora (2006), 83 O.R. (3d) 81 (C.A.). At para. 51, Weiler J.A. made this observation about a valuator engaged in calculating the value of shares held as family assets:

In both corporate law and family law, where the goal is to determine the fair market value of the business, perfect accuracy is impossible. As Viscount Simon wrote in Gold Coast Selection Trust Ltd. v. Humphrey (Inspector of Taxes), [1948] A.C. 459 [1948] 2 All E.R. 379 (H.L.) at p. 473 H.C., "Valuation is an art, not an exact science. Mathematical certainty is not demanded, nor indeed is it possible." The valuator must make assumptions as to how a prospective purchaser would have evaluated the business based on the purchaser's knowledge at the time in question and the amount of risk the purchaser would likely have been willing to assume concerning a lawsuit. Hindsight information is not admissible on the question of whether that assumption was correct but, as indicated in Ford, supra, it can be used to test whether that assumption was reasonable.

[emphasis in original]

Expert evidence with respect to the standard of care

[322] Mr. Daniel Barbour, an experienced chartered accountant and chartered business valuator with extensive forensic background, prepared four reports and testified as an expert witness on behalf of the plaintiff. His Report #1 dealt with the standard of care of a chartered business valuator. His Report #2 was critical of Mr. Harder’s valuation, and sets out an alternative valuation of the ABG in the amount of $7,586,972 as of October 30, 2000, based on an appraisal prepared by Springer Appraisal and Consulting LLC (the “Springer Appraisal”). His Report #3 dealt with the standard of care of a chartered accountant. His Report #4 calculated the potential increase in value of the ABG as at October 31, 2001, and the financial impact of Westwood on the earnings of the ABG.

[323] The defendants challenged the admissibility of these reports and mounted a full scale attack on Mr. Barbour’s credibility. Following a voir dire, I ruled some parts of Report #1 and Report #3 inadmissible as they did not set out the assumptions on which his opinions were based, as required by Rule 40A of the Rules of Court. The balance of Mr. Barbour’s evidence was then accepted as evidence on the trial by consent.

[324] I will not recount the details of the challenges made to Mr. Barbour’s credibility by the defendants. I do not accept the validity of all of them. Some, however, lead me to approach his evidence with caution.

[325] Mr. Barbour was retained in December 2003, at an early stage of the plaintiff’s investigation of the defendants. It became clear during his evidence that over the course of time, in preparing for this litigation, he relinquished the limited role of an independent expert and entered the realm of advocacy, providing strategic advice to the plaintiff and her counsel, and adjusting his opinion for tactical reasons. His demeanour during cross-examination enforced this impression. He was at times evasive and argumentative, conduct that is not expected of an impartial expert. I weigh his evidence against that of the defendants’ experts with this in mind.

[326] As well, despite his familiarity with the court process, Mr. Barbour’s Reports #1 and #3, dealing with the standard of care, contained virtually no statement of assumed facts. He rejected a statement of facts provided to him by the plaintiff’s counsel, and instead, on his own initiative, prepared generic reports based on a hypothetical chartered business valuator and chartered accountant, practising in essentially a factual vacuum. The reason for his reticence was unclear, particularly when it was apparent during cross-examination that Mr. Barbour was extremely familiar with the factual background to the plaintiff’s claims. Mr. Barbour testified that he did not like to see Mr. Harder’s name in a critical context, and so wrote in general terms. That explanation is difficult to understand, and leaves one to wonder why Mr. Barbour would choose to undertake this case if he did not wish to be critical of Mr. Harder. The defendants argued that this tactic was a deliberate attempt by Mr. Barbour to shield his opinions from cross-examination. While I am not prepared to make that finding, I do conclude that his superficial approach to the facts was inappropriate and unhelpful, and significantly limits the weight to be placed on his opinions. I will return to Mr. Barbour’s credibility on specific issues later in these Reasons.

[327] The defendants called three chartered business valuators as expert witnesses, who each reached his opinion independently of the others. Mr. Michael Bowie has practised in this field for over 25 years, and has had experience with valuations in both logging and matrimonial contexts. His opinion was based on a lengthy statement of assumed facts, and I found his evidence thoughtful and credible. Mr. Bowie admitted that he knows Mr. Harder quite well, as a “friend in a professional context”, but nevertheless testified that he believed he could be objective in his evidence. I have scrutinized his evidence with some care, due to that relationship.

[328] Mr. Clayton Schultz, who has been a chartered accountant since 1971, and a chartered business valuator since 1980, gave evidence for the defence with respect to both Mr. Harder’s valuation and the standard of care of a chartered accountant, based on an extensive statement of assumed facts. Mr. Schultz has had considerable experience with the coastal logging industry, and in providing accounting and valuation services in the context of matrimonial disputes. He did not know Mr. Harder as well as Mr. Bowie did. I found his valuation evidence credible and helpful.

[329] The third valuation expert called by the defendants was Mr. Michael Cheevers. He has been a chartered business valuator since 1995, although more than half of his work is in the insolvency field. Mr. Cheevers had not testified as an expert before, but his evidence was straightforward, and I have no reason to doubt his credibility. Any limitations in his opinion arise from the fact that its factual basis was limited to the ABG financial statements.

Introduction to Mr. Harder’s Valuation

[330] I find that Mr. Harder was engaged on December 21, 2000 with the concurrence of the plaintiff and her advisors. All agreed that a valuation of the ABG was integral to the resolution of her matrimonial dispute. I find that he was retained as an independent expert to provide an objective valuation of the ABG shares, not as an advocate for the plaintiff to obtain the highest share value possible.

[331] I am satisfied that the plaintiff retained Mr. Harder directly by signing his engagement letter on January 26, 2001, and that she understood its terms after reviewing them with Mr. Hubley. I am also satisfied that, for reasons of convenience and with her consent, Mr. Hubley generally acted as the plaintiff’s agent in her dealings with Mr. Harder

[332] Mr. Harder was engaged to provide an estimate as to the “en bloc fair market value” of the shareholder interests in the ABG. Mr. Barbour and Mr. Harder agreed that this was the appropriate method to use in valuing the business for matrimonial purposes, and concurred that Mr. Harder’s engagement letter set out the approved definition of “fair market value” used by the CICBV:

The highest price, expressed in terms of cash equivalents, at which property would change hands between a hypothetical willing and able buyer and a hypothetical willing and able seller, acting at arm’s length in an open and unrestricted market, when neither is under compulsion to buy or sell and when both have reasonable knowledge of the relevant facts.

[333] It was common ground that there are two valuation approaches to ascertaining fair market value: liquidation value and going concern value. The former is used when the highest value will be obtained by winding up the business and selling its assets. Mr. Harder and Mr. Barbour agreed that the CICBV approves this definition of liquidation value:

The net amount that would be realized if the business is terminated and the assets are sold piecemeal. Liquidation can either be orderly or forced.

[334] A going concern premise is used to value a viable business that will continue operations. The CICBV defines going concern value as:

The value of a business enterprise that is expected to continue to operate into the future. The tangible elements of going concern value result from factors such as having a trained work force, an operational plan, and the necessary licences, systems and procedures in place.

[335] Mr. Harder and all of the expert valuators who testified agreed that it was appropriate to value the ABG on a going concern basis as that was likely to produce the higher value.

[336] As well, all agreed that Mr. Harder correctly used a tangible asset backing methodology in valuing the ABG. An income-based approach was not appropriate because the cyclical nature of the logging industry and the impossibility of predicting future income from logging contracts made it difficult to detect any discernible trend to the ABG’s future earnings. A tangible asset backing approach requires determination of the net value of the tangible and identifiable intangible assets of the business, representing the fair market value of those assets less associated liabilities. It also requires an allowance for loss of the tax shield resulting from the assumed purchase of shares rather than assets.

[337] Mr. Harder gave extensive evidence about how he proceeded with his valuation. The primary assets to be valued were logging equipment, land and buildings, and road building and logging contracts. By far the most valuable was the equipment. Mr. Harder relied on the Ritchie Bros. Appraisal for the equipment value of the pieces it covered. For those items not included in that appraisal, he assigned values based primarily on net book value. The resulting value for the ABG equipment in his valuation was $4,889,800. The appraisal of the real estate was straightforward. Where information was available, he used an EBITDA (earnings before interest, taxes, depreciation and amortization) analysis to value the logging and road-building contracts and to assess the earning power of each of the ABG companies. Mr. Harder calculated a deduction of $724,900 for the tax shield foregone. He concluded that the shares of the ABG had a fair market value of $2,635,400.

[338] Mr. Barbour took issue with only two aspects of Mr. Harder’s valuation, but his criticisms, if accepted, would increase the value of the ABG shares by almost $5 million. First, he attacked Mr. Harder’s reliance on the Ritchie Bros. Appraisal in assigning a value of $4,889,800 to the equipment in his valuation. He said that Mr. Harder instead should have relied on an equipment appraisal based on the higher value premise of fair market value in continued use, such as the Springer Appraisal, which valued the equipment at $10,790,000. Second, it was his view that the tax shield foregone, which represented a deduction of $724,900 from the share value in Mr. Harder’s tangible asset backing calculation, should have been discounted by 50%. In his Report #2, Mr. Barbour concluded that correcting these two errors in the tangible asset backing calculation would place the fair market value of the ABG shares at $7,586,972.

[339] I turn to consider each of the allegations raised against Mr. Harder.

Inappropriate selection of October 31, 2000 as the valuation date

[340] It was common ground that selection of the valuation date can be strategic. The plaintiff was critical of Mr. Harder for unilaterally choosing October 31, 2000 without consultation with Mr. Marzban, and for failing to obtain updated financial information as the negotiations proceeded.

[341] I find no support for this allegation. All of the expert valuators, including Mr. Barbour, supported the choice of October 31, 2000 as the last fiscal year end of the ABG. Mr. Marzban knew that Mr. Harder had chosen this date when he received a copy of his engagement letter, and testified that this was the reasonable choice. The ABG financial statements for 2000 had just become available in mid-January as Mr. Harder commenced his work.

[342] With respect to obtaining updated financial information before the settlement, Mr. Harder’s engagement effectively ended when he delivered his memorandum of April 20, 2001. He had no involvement in the ensuing negotiations, and received no further instructions. He cannot be held responsible for a failure to update the valuation in these circumstances, and I find that he did not breach the standard of care in this respect.

Reliance on Mr. Brewer for financial disclosure with respect to the ABG, and failure to obtain all necessary disclosure

[343] Mr. Marzban instructed Mr. Harder to obtain the financial disclosure necessary to complete his valuation directly from Mr. Brewer. The consensus of the legal and valuation experts was that it is a common and useful practice to have a valuator deal directly with the company’s financial officer to obtain such information. If the valuator encounters difficulties, he or she typically reports these to counsel who decides if steps should be taken within the legal process to obtain sufficient disclosure.

[344] This practice is reflected in the standards of the CICBV in place in 2000 and 2001. General Standard No. 120 III and V stated that a valuator must obtain sufficient evidence to ensure that the valuation report and conclusion are properly supported. Determining the extent of evidence necessary is described as a matter of professional judgment. If access to essential information is denied or unavailable, the valuator must clearly indicate any related qualification or limitation in the valuation report.

[345] The plaintiff argues that Mr. Harder failed to obtain and review all documents necessary for his valuation. Instead, he simply accepted information from Mr. Brewer at face value, and did not treat it with the scepticism appropriate to material obtained from an advocate for Mr. Newton. Nor did he follow up on outstanding requests for information with Mr. Brewer, tell Mr. Marzban about these, or mention them as a limitation in his memorandum of April 20, 2001. The plaintiff alleges that Mr. Harder’s timidity arose in part from his fear of Mr. Newton’s association with the Hells Angels.

[346] The plaintiff provided a long list of documents that she says Mr. Harder should have obtained from Mr. Brewer or third parties. These include records of the ABG’s transport business, the shake and shingle business and chipper plant; scaling records; the Duke Point lease; additional information on market logging; documents related to the ABG’s attempt to sell its Sewell road-building contract for $250,000 in August 2000; equipment leases and purchase agreements; and records of financial institutions related to the ABG refinancing in 2000.

[347] I deal with the documents related to equipment leases later in these Reasons. With respect to the balance of the plaintiff’s complaints, I am satisfied that the question of obtaining adequate financial disclosure for a valuation is a judgment call, left to the discretion of the valuator by his professional body. Mr. Harder agreed that it can be difficult to obtain information when dealing with the person who controls the business, as he has all the cards in his hands. He also conceded that Mr. Newton’s reported association with the Hells Angels was a concern, and he may not have pushed as hard in the fact-gathering process as a result. Nevertheless, it is apparent that he obtained hundreds of pages of material from Mr. Brewer, and that he had sufficient information to permit him to prepare his valuation estimate without any stated limitations related to missing material. As well, Mr. Newton reported to the plaintiff and Mr. Hubley that Mr. Harder was overly confrontational in his dealings with Mr. Brewer. This suggests that any caution on Mr. Harder’s part was not apparent to the opposing side.

[348] It is an easy thing for the plaintiff to list other documents that could have been obtained but, in my view, unless she can demonstrate that information material to Mr. Harder’s valuation was overlooked, or deliberately withheld to his knowledge, Mr. Harder’s professional judgment as to the sufficiency of financial disclosure meets the standard of care.

[349] I find no evidence to support a finding that Mr. Harder had any reason to suspect that Mr. Brewer deliberately misrepresented or withheld information that was material to the valuation. The requests to him that were outstanding at the time Mr. Harder prepared his estimate related to historical market logging data, an analysis of which equipment was necessary to perform each Bill 13 contract, and a business plan for financing. Mr. Harder testified that Mr. Brewer told him the first two did not exist.

[350] At trial, the plaintiff produced only a few of the documents from the list that she says Mr. Harder should have obtained. She did not produce the business plan for financing requested from Mr. Brewer. Thus there is no evidence that it contained information that would have had a bearing on the valuation.

[351] Exhibit 26 is a binder of HSBC documents related to the ABG’s refinancing applications in 2000. The plaintiff argues that these demonstrate that HSBC accepted the validity of the AA Appraisal in offering to provide financing of up to $4.7 million to the ABG, and suggest that Mr. Harder should have done so as well. I deal at length with Mr. Harder’s rejection of the AA Appraisal later in these Reasons. For the reasons set out there, I am unable to find HSBC’s acceptance of the AA Appraisal would have affected his judgment on that issue.

[352] The plaintiff also argues that the HSBC documents contain positive representations as to the ABG value put forward by Mr. Brewer in his efforts to obtain financing. These were not put to Mr. Harder during his cross-examination, and I find it difficult to understand what use he could have made of them in the context of his valuation. Had he raised them with Mr. Brewer, it is reasonable to infer that Mr. Brewer’s response would have been similar to his view of the AA Appraisal: they were made for the purpose of financing, and had no relevance to the resolution of Mr. Newton’s matrimonial dispute. While they might have been useful to cross-examine Mr. Newton or Mr. Brewer at a trial, it was not Mr. Harder’ role to amass documents for that purpose.

[353] The plaintiff produced a document indicating that the ABG attempted to sell its Sewell road-building contract for $250,000 in August 2000. Mr. Harder valued that contract at $120,000. He agreed that he was unaware of the proposed sale price, and said that had he known about it, he would have wanted to consider it. the plaintiff argues that this demonstrates that his value for that contract was inappropriately low. I am unable to draw that conclusion. Mr. Barbour accepted Mr. Harder’s valuation of this and every other logging and road-building contract. As well, Mr. Harder obtained corroboration as to the historical and future value of each contract from the majors with whom the ABG held these contracts. Finally, the Sewell contract did not sell at that price, which leaves it open to infer that it was over-valued at $250,000.

[354] The plaintiff produced the Duke Point lease but this provided nothing to demonstrate that Mr. Harder’s valuation would have been different had he obtained it.

[355] I conclude that Mr. Harder did not breach the standard of care in the manner in which he obtained financial disclosure for his valuation.

Failing to use an appropriate equipment appraisal in the valuation, and failing to provide appropriate advice to the plaintiff with respect to appraisals

[356] The ABG’s equipment was its most significant asset, and the value of its shares was closely related to the value assigned to that equipment. The equipment fell into two main categories: over 200 pieces of heavy equipment of significant value, and around 250 pieces of smaller and less valuable miscellaneous equipment, such as office and shop equipment and radios.

[357] To complete his valuation, Mr. Harder required a reliable appraisal of this equipment. The plaintiff argues that he breached the standard of care in rejecting the AA Appraisal and using instead the lower Ritchie Bros. Appraisal in his valuation. She says that the Ritchie Bros. Appraisal valued the equipment on a forced liquidation basis, which was inconsistent with a going concern valuation of the ABG. She argues that Mr. Harder should have commissioned an appraisal based on the premise of fair market value in continued use, also known as “value-in-use”.

[358] To properly consider these issues, it is necessary to provide some introduction to the methodology that underlies equipment appraisals, and to the four equipment appraisals that were placed in evidence at this trial.

[359] In assessing the fair market value of equipment, an appraiser has a choice of several underlying methodologies. For introductory purposes, I adopt the definitions of these from the textbook by the Machinery and Technical Specialities Committee of the American Society of Appraisers, Valuing Machinery and Equipment: The Fundamentals of Appraising Machinery and Technical Assets (Washington, D.C.: American Society of Appraisers, 2000) at 3-4 (the “ASA Text”):

Fair market value is the estimated amount, expressed in terms of money, that may be reasonably expected for a property in an exchange between a willing buyer and a willing seller, with equity to both, neither under any compulsion to buy or sell, and both fully aware of all relevant facts, as of a specific date.

…

Fair market value in continued use is the estimated amount, expressed in terms of money, that may reasonably be expected for a property in an exchange between a willing buyer and a willing seller, with equity to both, neither under any compulsion to buy or sell, and both fully aware of all relevant facts, including installation, as of a specific date, and assuming that the business earnings support the value reported. This amount includes all normal direct and indirect costs, such as installation and other assemblage costs to make the property fully operational.

…

Orderly liquidation value is the estimated gross amount, expressed in terms of money, that could be typically realized from a liquidation sale, given a reasonable period of time to find a purchaser (or purchasers), with the seller being compelled to sell on an as-is, where-is basis, as of a specific date.

Forced liquidation value is the estimated gross amount, expressed in terms of money, that could typically be realized from a properly advertised and conducted public auction, with the seller being compelled to sell with a sense of immediacy on an as-is, where-is basis, as of a specific date.

[footnotes omitted]

[360] Unfortunately, these terms were not used consistently by the witnesses who testified in this area. I therefore find it useful to set out an admittedly simplistic summary of my own understanding of the two main principles that appear to underlie this gradient of theoretical equipment appraisal premises, based on the evidence at trial. First, they can be divided into two main categories: value-in-use and value-in-exchange. The former presupposes that the assets will be sold as part of an ongoing, operating enterprise. It generally, but not always, produces a higher value. The latter assumes that the business will be sold and its assets liquidated on a piecemeal basis. Second, there is a hierarchy of value-in-exchange premises. Those expected to produce higher values assume the sale of assets will take place in conditions of longer market exposure and minimal compulsion on the seller. However, it appears that there is at least a degree of compulsion in any value-in-exchange premise, insofar as the concept assumes the asset will be sold, rather than retained.

[361] At the trial, evidence was led about four appraisals of the ABG equipment: the AA Appraisal, the Ritchie Bros. Appraisal, the GEC Appraisal and the Springer Appraisal. All used a sales comparison approach. However, it is difficult to make direct comparisons among them for a number of reasons. They used different methodological premises and did not define these consistently. They obtained their comparables from different data banks. They were done on different dates, and did not cover exactly the same equipment. Some of the appraisers viewed the equipment, while others did “desk-top” appraisals. I will briefly describe each.

[362] The AA Appraisal was commissioned by the ABG during its refinancing process in mid-2000. It was the most recent of a series of bi-annual appraisals which had been done by American Appraisal Canada, Inc. for the ABG for financing purposes since 1992. It was prepared by Mr. Joseph Martins, an appraiser accredited by the American Society of Appraisers (the “ASA”), who had 20 years experience. Mr. Martins was not, however, presented as an expert to give opinion evidence at the trial. Instead, he simply testified to what he did.

[363] He said that he appraised 214 pieces of the ABG’s large equipment, viewing 86 of these, as well as the miscellaneous equipment. His appraisal stated that the equipment was “observed and reported to be in good to very good condition overall”. He concluded that as of June 2, 2000 it had an orderly liquidation value of $13,680,000, of which $569,000 was the miscellaneous equipment, and an auction value of $10,580,000, of which $400,000 was the miscellaneous equipment. The AA Appraisal, however, defines those terms differently from the ASA Text. Mr. Martins’ definition of “orderly liquidation” is something of a hybrid between the definition of fair market value and orderly liquidation, and anticipates a sale within 180 days of market exposure and orderly disposition.

[364] Mr. Martins testified that he equated auction value with forced liquidation. His report gives this definition and stipulates a 90-day period for disposal under this premise:

Auction Value which is defined as the estimated gross amount an asset or group of assets should realize if sold piecemeal at a properly advertised and conducted auction sale. The assets would be offered for sale in an “as-is, where-is” condition and location with the buyer assuming any cost to dismantle and remove.

[365] Mr. Martins said that he relied on comparables based on historical data from earlier American Appraisals of the same equipment, and adjusted these down for depreciation. He then checked that value against information from auction sales and publications listing new equipment. He said that he also relied on information and records from Mr. Newton.

[366] The GEC Appraisal was commissioned in October 2000 in the process of GEC’s consideration of the ABG’s application for financing, because GEC was sceptical of the values in the AA Appraisal. It was carried out by Mr. Guy Gauthier, an equipment appraiser with over 40 years experience. Although Mr. Gauthier was not an ASA certified appraiser, he was qualified as an expert on the appraisal of heavy equipment at the trial.

[367] Mr. Gauthier testified that he used an orderly liquidation premise to do a desktop appraisal of 214 pieces of heavy equipment that mirrored as closely as possible those pieces that had been appraised in the AA Appraisal. He valued the miscellaneous equipment at $100,000 as a block. He said that he assumed that the equipment was in good condition. He concluded that the ABG equipment was worth $5,492,000. Mr. Gauthier said that he relied on comparables from Ritchie Bros., his own experience, and the “black book” for trucks.

[368] The Ritchie Bros. Appraisal was commissioned by the ABG in early 2001 to provide an appraisal for use in Mr. Harder’s valuation. It covered 166 pieces of large equipment, 143 of which were viewed and reported to be in variable condition. It did not include the miscellaneous equipment. It concluded that this equipment had a value of $4,673,200 as at February 7, 2001. The appraisal does not set out a formal methodological premise, but indicates that the value is based on what would be achieved at a public auction conducted within 45 days of February 7, 2001, if all equipment was in good running order and refurbished to Ritchie Bros. sale standards.

[369] The appraisal was done by Ritchie Bros. staff, using the Ritchie Bros. Appraisal template. None of the staff involved with the appraisal gave evidence at the trial. Instead, Mr. Gary Caufield, manager of special projects for Ritchie Bros., described the process. The territory manager for Ritchie Bros. inspects the equipment, photographs it, and makes detailed notes about its condition. This data is put into the Ritchie Bros. computer base which records prices for similar equipment sold recently at their auctions. Five employees in the appraisal department then appraise the equipment independently, using that database. They are not ASA certified, but have been trained by Ritchie Bros. The resulting five prices for each piece of equipment are averaged to obtain a final value. Two managers review these, and adjust the result if there are any major discrepancies.

[370] The Springer Appraisal was commissioned by the plaintiff for this lawsuit. It was a desk-top appraisal of most of the large equipment covered by the AA Appraisal, using a premise of fair market value in continued use. Its final value for the ABG equipment was $10,790,000 as of October 31, 2000. It did not include the miscellaneous equipment.

[371] Mr. Greg Thornton and Mr. Raymond Springer, both ASA certified appraisers practising in the United States, prepared the Springer Appraisal. Both were qualified as experts at the trial. Mr. Thornton appraised the ABG equipment at $6,036,300(USD) using a “fair market value” premise. He was the only appraiser who seemed to treat that concept as an independent premise in the hierarchy of appraisal premises. Other appraisers and valuators appeared to use “fair market value” as a general term referable to the final value reached under other methodological premises. Mr. Thornton described his fair market value concept as a higher level of trade in the retail market place, with no time limit and no compulsion to sell. He used comparables from direct sales where they were available, and otherwise used adjusted auction prices. He assumed that the equipment was in good to very good condition, based on the AA Appraisal.

[372] Mr. Springer converted Mr. Thornton’s fair market value to fair market value in continued use, by adding the costs associated with placing the assets in operation. These included converting Mr. Thornton’s value to Canadian dollars, and adding $1,000 per unit for transportation costs, 5% for assemblage costs, 5% for contingencies, and 7% sales tax. The resulting total was $10,790,000.

[373] There are five allegations against Mr. Harder that deal with the equipment appraisals.

1) Rejecting the American Appraisal without proper investigation

[374] Mr. Harder was not an equipment appraiser, and so had to rely on the opinion of a specialist in that field for the value to be placed on the equipment in his valuation. The standards of the CICBV in force in 2001 provided guidance to valuators with respect to relying on other specialists in Specific Valuation Standard 120 VI, which reads:

The valuator must consider the necessity of relying upon the work of a specialist (e.g. real estate appraiser, engineer, etc.). Recommendation: If it is deemed appropriate to request the assistance of a specialist, the valuator should obtain reasonable assurance concerning the specialist’s reputation for competence and degree of independence. Explanatory comment only: The appropriateness and reasonableness of the assumptions and methods used by the specialist are the responsibility of the specialist. Ordinarily, the valuator may accept the specialist’s judgement and work in this regard unless the report of the specialist, the valuator’s communication with the specialist or the valuator’s knowledge of the business being valued lead the valuator to believe that the specialist’s assumptions or methods are unreasonable in the circumstances.

[emphasis in original]

[375] Mr. Harder reviewed the AA Appraisal and rejected it as unreliable early in his valuation. He testified to a number of reasons for this. The capital equipment list and the 1999 financial statement of the ABG showed that, before depreciation, the ABG had paid a little more than $12 million for the equipment that the AA Appraisal valued at $10,580,000 and $13,680,000. In his experience, logging equipment suffered economic and functional obsolescence, and it did not make sense that the original equipment cost would be so close to the appraised cost. He also reviewed the values for the equipment with which he was familiar, and found some of these surprisingly high. As well, Mr. Brewer told him that the AA Appraisal values were very high and had been obtained for financing purposes, and that the GEC Appraisal was around $5.3 million. Mr. Brewer also told him that Mr. Newton would not accept the AA Appraisal values. Mr. Harder said that while it did not matter to him whether Mr. Newton accepted them, since the plaintiff wanted to try to negotiate a settlement using the AA Appraisal would not meet his client’s objective from a practical point of view. He felt there were also a number of practical hurdles to using the AA Appraisal, such as having to reconcile the equipment to mid-January, and considering the effect of the 2000 logging season on its condition.

[376] The plaintiff argues that Mr. Harder reached that decision too quickly. She says that he should have investigated the AA Appraisal more thoroughly before rejecting it as unreliable. In particular, he should have called Mr. Martins and HSBC, which relied on the AA Appraisal in offering financing of $4.7 million to the ABG in August, 2000.

[377] I find that there is no basis for this allegation against Mr. Harder.

[378] First, I find the plaintiff’s position on this point significantly diminished by her decision to rely on the Springer Appraisal instead of the AA Appraisal in presenting her case at this trial. Even Mr. Barbour expressed doubts about the reliability of the AA Appraisal.

[379] Second, the Ritchie Bros. Appraisal, the GEC Appraisal, and the Springer Appraisal all shed doubt on the validity of the AA Appraisal. The first two, which were both available to Mr. Harder at the time, placed the value of the ABG equipment at less than half that of the AA Appraisal, although they were done on the same premises of orderly liquidation value and auction value. Mr. Gauthier, who undertook his appraisal because GEC had serious doubts about the AA Appraisal, observed in an e-mail to GEC about the AA Appraisal at that time:

I can’t believe these guys would give an opinion with such high numbers when everybody knows how weak is the actual market in Western Canada.

[380] During his testimony, Mr. Thornton was referred to a number of AA Appraisal values that were as much as two to five times higher than his appraised values of the same equipment. He said that he had not seen comparables that would justify such values, and that he would be curious to see where Mr. Martins obtained such comparables.

[381] Mr. Pearson, the appraiser from whom Mr. Harder sought an informal opinion at the time, testified that after reviewing part of the AA Appraisal he told Mr. Harder that it was too high, that the economy in the forestry industry was down, and the AA Appraisal values could not be achieved in the market.

[382] Mr. De Clark confirmed that the capitalized cost of the ABG equipment recorded as of October 31, 1999 was $12,881,207, and that some of the equipment had been on the books for some time. He agreed that it would be unusual if equipment that was a few years old had a market value close to its recorded capitalized value. He testified that while he did not review the AA Appraisal in depth, it was his impression that the appraisal was high on a few pieces.

[383] While the plaintiff maintains that HSBC accepted the validity of the AA Appraisal, a close examination of their financing documents shows that the loan officer did not rely on the appraisal itself, but required a transmittal letter from American Appraisal as a condition precedent for the loan. This permitted HSBC to look directly to the appraisal company if a difficulty arose with the ABG. In view of this, I am unable to find that communicating with HSBC would have altered Mr. Harder’s view of the reliability of the AA Appraisal.

[384] Mr. Martins’ own testimony suggested that Mr. Harder had been correct to view the AA Appraisal with scepticism. Mr. Martins conceded that his report erroneously implied that he had inspected all of the equipment and that it was well maintained and in good to very good condition, whereas he had inspected only about 40% of it. He could not explain why he made these misrepresentations, and agreed that they were not in keeping with his professional standards.

[385] Mr. Martins had not kept a record of the specific comparables he employed. He said he gave more weight to higher end comparables. When he was shown contemporaneous comparables for some pieces of equipment that were significantly lower than his values, he agreed that if he had had those at the time he would have had to reconsider his appraised values of those pieces. He also conceded that he did not know an auction company that could have obtained his auction values for the ABG equipment.

[386] It appeared that Mr. Martins had relied heavily on his company’s past appraisals of the ABG. He said that he generally started with the 1998 appraisal values, and depreciated them by about 10%. He also relied on information from Mr. Newton as to the purchase prices and condition of the equipment, particularly with respect to the equipment he did not see. It appeared that he may have depended too heavily on such information, provided by a person who was motivated to obtain the highest appraisal possible for financing purposes. For example, he said Mr. Newton told him that the chipper at Duke Point was worth $350,000. Mr. Martens valued it at $300,000 on an orderly liquidation value basis. The other three appraisers valued it in the range of $75,000 to $125,000.

[387] I am unable to find that information from Mr. Martins would have allayed Mr. Harder’s concerns about the AA Appraisal.

[388] I conclude that Mr. Harder’s decision to reject the AA Appraisal was reasonable based on the information available to him, and in the context of his professional guidelines. As an independent valuator retained to provide an objective opinion on the value of the ABG shares, it was essential for him to have an appraised value for the equipment that he viewed as reliable. I find that his decision to look beyond the AA Appraisal was strongly supported by the evidence at trial.

2) Failing to use an appraisal based on fair market value in continued use

[389] The plaintiff, supported by Mr. Barbour, argues that, having rejected the AA Appraisal, Mr. Harder should have commissioned an independent equipment appraisal based on a premise of fair market value in continued use, or value-in-use, for his valuation, as that is the appraisal methodology consistent with an operating business valued as a going concern. Had he done so, the appraisal would in all likelihood have produced a much higher equipment value, in the range of the Springer Appraisal, and a significantly higher value for the plaintiff’s shares. She points to Mr. Barbour’s valuation in his Report #2, which relied on the Springer Appraisal in calculating a share value of $7,586,972.

[390] I set out the ASA Text definition of fair market value in continued use at paragraph [359] of these Reasons. Two features distinguish that premise from other appraisal premises. First, it includes not just equipment costs but also the expenses incurred in making the equipment operational, such as installation, assemblage, and transportation. Second, it assumes that the appraised asset value is supported by the business earnings from those assets. I will refer to this as the “earnings assumption”.

[391] Mr. Harder argues that his failure to use an appraisal based on fair market value in continued use was not a breach of the standard of care because the ABG equipment did not accommodate either of those features. First, its nature did not justify the additional expenses imposed by a fair market value in continued use premise. Second, when the earnings assumption was properly tested, the business earnings of the ABG equipment could not support a value-in-use approach.

[392] With respect to the nature of the equipment, Mr. Harder testified that he did consider fair market value in continued use as a possible premise for valuing the equipment, but had difficulty justifying the additional expenses relating to it. First, it was not clear that all of the ABG’s equipment was consistently in continued use in the business’ operations. It appeared that the ABG had surplus equipment due to the cyclical nature of the logging industry and the resulting variation in logging volumes and marketing contracts. Moreover, he could not see logging equipment attracting assemblage or installation costs similar to those incurred by a manufacturing plant or sawmill. Nor was there economic value to assembling the equipment in one location. The ABG’s logging activities required that various combinations of its equipment be moved from job to job. While some transportation costs might be incurred, a lot of the ABG equipment, such as trucks and boats, was mobile. Larger pieces were easily transported by a truck or barge. As well, Mr. Harder questioned whether it was appropriate to add provincial sales tax to the fair market value of the equipment, as the Springer Appraisal had done, since that is a matter between the vendor and the government, not the vendor and the purchaser.

[393] Mr. Bowie expressed similar views with respect to the appropriateness of adding assembly and installation costs. He acknowledged that some consideration might be given to sales tax and the cost of moving equipment to a logging site, but said he had not seen such adjustments made to appraised values in a going concern tangible asset backing valuation in his experience of valuing logging contractors.

[394] There was no evidence as to likely contingencies that would justify the 5% increase in the equipment value put forward by the Springer Appraisal.

[395] I am satisfied that the nature of the ABG equipment and the logging industry made it unlikely that the substantial additional costs imposed by a fair market value in continued use premise could be justified. Some amount might be added for transportation costs, but it is difficult to estimate what those would be on the evidence available. I find Mr. Springer’s approach of simply assessing $1,000 for each piece of equipment to be too arbitrary. I have no information against which to apply his alternative estimate of a dollar a mile.

[396] The second argument raised by Mr. Harder as to the suitability of a value-in-use premise is more complex. This involves an analysis of whether the business earnings from the ABG’s equipment could support an appraisal based on fair market value in continued use such as the Springer Appraisal.

[397] It was common ground that any purchaser of the ABG would want a reasonable return on the investment, commensurate with the associated risk. Mr. Bowie, for example, testified that it is basic in any business transaction to relate the proposed purchase price to the earnings that the business will generate in the future. This analysis is an essential factor in assessing fair market value on a going concern basis. He said that there must be a rational reconciliation between the going concern value and the expected cash flow to the investor. If they cannot be reconciled, it is necessary to re-examine the approach to the valuation, or the values attributed to the assets.

[398] The earnings assumption is typically tested by an analysis of the business’ historical financial performance. This is generally done by normalizing corporate earnings through removal or adjustment of business expenses such as tax, interest, capital expenditures, and management income, which may vary due to management decisions or other reasons unique to the company. The result is what Mr. Shultz referred to as a “purification of the operating cash flow” that permits comparisons between companies, and an objective assessment of the cash flow available from business operations independent of management decisions. Various approaches may be used, including calculation of the discretionary cash flow or normalized income before taxes, or an EBITDA analysis.

[399] The Springer Appraisal clearly assumed that business earnings would support its equipment value of $10,790,000. Mr. Springer testified that this is a fundamental assumption. He said that he was told that the ABG was an operating business, and so he chose fair market value in continued use as the appropriate premise for his appraisal. He did no investigation into earnings, however, and assumed that the valuator, in this case Mr. Barbour, would test his appraised value against the business earnings of the ABG to ensure that he had not overvalued the equipment. He agreed that he advised the plaintiff’s counsel that if his equipment value was not supported by the business valuator, he would likely have to change his conclusion to a supportable level. Mr. Springer testified that he has a professional obligation to do so, and said that generally in such cases the appraiser works with the valuator to revise the equipment value downwards to the point that it is reconciled to an appropriate return. This may be done by an adjustment for external obsolescence, or the valuator may conclude that the business is not a going concern as originally assumed, and ask for an appraisal on a lower premise of value.

[400] Mr. Springer said that in this case, he heard nothing about Mr. Barbour’s analysis or conclusions with respect to the earnings assumption.

[401] Mr. Barbour’s valuation is set out in his Report #2, dated August 24, 2006. It clearly relies on the Springer Appraisal for the equipment value. It does not, however, address the question of whether that value can be supported by the business earnings of the ABG. When Mr. Bowie and Mr. Shultz filed reports in response that pointed this out, Mr. Barbour did not file a report in reply undertaking such an analysis. Instead, his views on this issue emerged for the first time during his cross-examination.

[402] Mr. Barbour agreed that a purchaser of the ABG would want a reasonable rate of return commensurate with the risk of the investment, that the premise of fair market value in continued use reflects this in the earnings assumption, and that he knew that Mr. Springer had made no investigation of the ABG’s earnings. He also agreed that he did not address the earnings premise directly in his report.

[403] When asked about this omission, Mr. Barbour said that he thought it was self-evident that the earnings premise was satisfied by the ABG’s earnings in 2000. It was his view that the ABG had been in a growth position for several years, as evidenced by its large capital acquisitions in 1998 and 1999, related to the establishment of the Duke Point Custom Log Sort Ltd., Duke Point Shake & Shingle Ltd., Alliford Bay Transport Ltd., and the acquisition of the new J.S. Jones Bill 13 contract. As well, it had a significant increase in revenue from $11 million in 1998 to $29 million in 2000. Mr. Barbour said that, as a result, he did not view the ABG’s historical earnings as necessarily representative of the return that could be generated. Instead, he concluded that 2000 was likely its most representative year. He acknowledged that 2000 also happened to be the ABG’s best year.

[404] Mr. Barbour conceded that two-thirds of the ABG’s total revenue in 2000 came from its Bill 13 and market logging contracts, and that the prediction of future income from those sources is difficult. He nevertheless maintained that it was not imprudent to use 2000 alone as the year most representative of the rate of return that the ABG could generate, and said that this rate more than satisfied the earnings assumption inherent in the Springer Appraisal, as well as his tangible asset backing valuation based on that appraisal.

[405] Asked about the appropriate rate of return, Mr. Barbour said that selection of that rate is subjective, and unique to each business. He emphasized that the rate of return must reflect the fact that the ABG valuation has been done on a tangible asset backing basis, which involves a lower level of risk than an income-based valuation. He estimated a reasonable rate of return to be in the range of 10 to 12%. During re-examination, he testified that he calculated the ABG’s after-tax cash flow for 2000 to be $1.4 million, and dividing that by his share value of $7,800,000 would provide a reasonable rate of return. By my calculation, that rate is in the range of 17.9%.

[406] Mr. Barbour’s evidence as to whether and when he actually performed any analysis of the ABG’s historical cash flow to test the earnings assumption was contradictory and difficult to follow.

[407] He initially testified that he had done an analysis of the ABG’s historical earnings, but agreed that the only part of Report #2 that related to this analysis was a calculation of pre-tax cash flow at Tab 9. While this table sets out data for 1998 to 2001, the pre-tax cash flow is only calculated for 2000 and 2001. Mr. Barbour testified that, although he had the 1998 and 1999 financial statements when he prepared this, he was missing information on net current capital expenditures for those years and so could not calculate a pre-tax cash flow for them. He agreed that, as a result, he could not calculate the historical sustaining capital expenditures or the discretionary cash flow for any year except 2000 before he delivered his report in August, 2006.

[408] On November 10, 2006, after the defendants had delivered their experts’ reports, Mr. Barbour delivered a revised Tab 9. This version corrected an unrelated error dealing with a deduction for amortization, and also expanded his calculations of pre-tax cash flow to include 1996 to 1999.

[409] Later in his evidence, however, Mr. Barbour said that this new Tab 9 was not intended to analyze the historical cash flow of the ABG for the purpose of capitalizing it. Instead, the calculation was “just information”. He said that, had he intended to test the earnings assumption, he would have calculated the discretionary cash flow. In doing so, he would have deducted the sustaining capital expenditures only, and not the net current capital expenditures as done in his revised Tab 9 calculations.

[410] Challenged as to exactly what analysis he had done to test the earnings assumption before he wrote his August report, Mr. Barbour gave this somewhat confusing evidence as to whether he actually did a discretionary cash flow analysis:

A I used [the Springer Appraisal] numbers, yes, I did.

Q Right. And you did not look at any historical discretionary cash flows to determine whether or not that fair market value and [sic] continued use was supportable?

A That’s not true. I looked at them and concluded that trying to calculate a discretionary cash flow on the historical information was not a suitable methodology to use.

Q My question is you didn’t do it, did you?

A I did do it. I came to the conclusion that it -- that it wasn’t worthwhile to do.

Q Haven’t we established that with Exhibit 30 [his original tab 9] you didn’t do it?

A I’m sorry, but --

Q You couldn’t have done it because you didn’t --

You couldn’t even figure out the cash flows for 1999 and 1998, you didn’t have the necessary information?

A But I did -- I did it with the revised tab 9.

Q So you did it after?

A No, I -- I did the calculation as to what the income was. I came to the conclusion that the revenue and the cap -- the revenue was increasing, the capital expenditures were very large and I quite frankly came to the conclusion that you couldn’t do a discretion cash flow or shouldn’t do a discretionary cash flow on the historical information because it was meaningless.

[411] As his testimony progressed, Mr. Barbour expressed regret that he had not included something in his report that addressed the earnings assumption. Ultimately, he conceded that his failure to address that issue was a significant omission, and a breach of s. 9.2E of Standard No. 310 of the CICBV currently in force, which requires an expert report by a valuator to include “assumptions used and the procedures followed to determine the reasonableness and appropriateness of key assumptions”.

[412] On re-examination, counsel invited Mr. Barbour to set out the analysis he wished he had included in his report with respect to his investigation of the earnings premise. In response, Mr. Barbour referred to the calculations in his revised Tab 9. Following objections from the defendants, he was limited to describing the analysis he did prior to the delivery of his report in August 2006, since the critical issue was whether he had tested the earnings assumption on which the Springer Appraisal relied before he based his valuation in Report #2 on that appraisal. Mr. Barbour then testified that he had analyzed the historical capital expenditures prior to writing his report, but this evidence still referred to the calculations in his revised Tab 9 that were prepared after delivery of that report. The suggestion he had done an earlier historical analysis was clearly inconsistent with his previous testimony that, prior to the delivery of his report, he had been unable to calculate pre-tax cash flow, capital expenditures, and discretionary cash flow for the years prior to 2000.

[413] I find that Mr. Barbour did not undertake any analysis of the ABG’s historical cash flow to test the earnings assumption underlying the Springer Appraisal before he delivered Report #2. Instead, he chose to use 2000, the ABG’s best year, as most representative of the rate of return, based on his observations of capital expenditures in 1998 and 1999, and the increased revenue in 2000. I find this approach cannot be supported on an analysis of the ABG’s operations.

[414] First, it fails to give sufficient weight to the cyclical nature of the logging industry. The capital expenditures on which Mr. Barbour relied were all related to that industry. The evidence is clear that variability in the industry and its markets make future revenue unpredictable. This suggests that any approach that relies on high revenue in one year as indicative of a continuing rate of return in logging-related operations must be tenuous.

[415] Next, in reaching his conclusions, Mr. Barbour did no analysis to determine whether the ABG companies that benefited from the increased capital expenditures were the source of the increased revenue in 2000 as he theorized.

[416] Mr. Harder, on the other hand, conducted a detailed analysis of the profitability of both the ABG as a whole, and its component companies. He acknowledged the shift in the ABG’s operations in the late 1990s, but concluded that while the overall combination of businesses drove its profitability, its revenue was essentially based in the volume of timber logged. In 2000, two-thirds of its revenue came from market logging and Bill 13 contracts.

[417] Moreover, Mr. Harder’s analysis and investigation indicated that while some of those contracts had been profitable, future revenue from them was not assured due to declining logging volume, uncertainty about future AAC and the availability of future market logging contracts, and increased overhead related to environmental issues. For example, while the Bill 13 contract with J.S. Jones that the ABG had purchased for $500,000 in 1998 was the most significant source of the ABG’s revenue in 2000, Mr. Harder’s investigation showed this was anomalous as the ABG had been permitted to take significant extra volume that year. Future profit expected from that source was significantly lower. Moreover, that contract terminated at the end of 2001. Nor did Mr. Harder’s analysis show a significant increase in sustainable profit from the operations that received the benefit of the other capital expenditures in 1998 and 1999 such as Alliford Bay Transport Ltd. or the Duke Point operations.

[418] Mr. Harder’s analysis was confirmed to a degree by Mr. De Clark, who agreed that prevailing economic and environmental concerns in the industry contributed to the ABG’s decreased profit margin and cash flow. He described the cash flow as tight in 1999 to 2001, and said that it did not improve for the most part. He also testified that the volume of timber cut varied annually, and there was no guaranteed income at any particular level from the ABG’s Bill 13 contracts. Mr. De Clark provided rough estimates of the productivity of the various ABG companies. He said that the chipper was among the most profitable operations although it had high costs as well. He estimated that it provided 5 to 10% of the revenue. Alliford Bay Transport Ltd. produced about 5%. Road building contracts produced about 10%, and logging contracts 40 to 60%. He believed that Duke Point Custom Log Sort Ltd. provided 15 to 20% of the revenue.

[419] This evidence satisfies me that any reasonable purchaser would be unlikely to accept Mr. Barbour’s view that the increased capital expenditures in 1998 and 1999, together with the increased revenue in 2000, were indicative of an acceptable and sustainable rate of return.

[420] Nor does Mr. Barbour’s approach withstand scrutiny in light of the evidence of the defendants’ expert valuators, Mr. Bowie, Mr. Schultz, and Mr. Cheevers. Using different approaches, each undertook an analysis of whether the ABG’s cash flow provided a sufficient return to justify the Springer Appraisal value. Each concluded it did not.

[421] Mr. Bowie measured the rate of return related to different equipment values by calculating the historical discretionary cash flow of the ABG from 1995 to 2000. He concluded that its historical performance indicated that future annual maintainable cash flow before income tax and capital expenditures would be in the range of $1.7 million if averaged over all years. If the ABG’s two worst years of 1995 and 1998 were omitted to provide a more optimistic view, the figure became $2.2 million. Since capital expenditures had been variable, he averaged the net outlay on capital assets over those six years, taking into account the tax relief associated with the purchases. This provided a figure of $1.4 million as the deduction for capital expenditures. He then deducted corporate income taxes to obtain a discretionary cash flow in the range of $60,000 to $355,000 annually. The discretionary cash flow in 2000, the ABG’s best year, was $570,000.

[422] A rate of return is calculated by dividing the discretionary cash flow by the proposed share value. Thus, if $570,000 is divided by Mr. Barbour’s share value of approximately $7,587,000, it produces a rate of return of approximately 7.5%. If it is divided by Mr. Harder’s share value of $2,635,400, it produces a rate of return of approximately 21%.

[423] Mr. Bowie testified that the rate of return obtained on Mr. Barbour’s share value would be totally unacceptable to a prospective purchaser. He also pointed out that anyone purchasing the ABG would have to incur the additional expense of paying out the shareholders’ loans and outstanding bonus, which would lower the rate of return further. Mr. Bowie concluded that no prudent investor would purchase the ABG’s shares for the value put forward by Mr. Barbour.

[424] In cross-examination, the plaintiff’s counsel suggested to Mr. Bowie that he underestimated the discretionary cash flow by deducting 100% of capital expenditures. He suggested that only those capital expenditures required to sustain the level of revenue should be deducted, and it was inappropriate to deduct non-recurring capital expenses as well.

[425] Mr. Bowie disagreed. While he acknowledged that the calculation of discretionary cash flow is very sensitive to the analysis of what is a non-recurring capital expense and what is a sustaining capital expense, he said that the capital expenditures in 1998 and 1999, to which Mr. Barbour refers, were not non-recurring capital expenditures as the plaintiff alleges. They were things such as equipment and yard preparation that will have to be replaced in the future to maintain the same stream of income. Those future costs must be built into estimates of future cash flow by a deduction of sustaining capital expenditure.

[426] The plaintiff’s counsel also suggested to Mr. Bowie that he had underestimated the discretionary cash flow by about $208,000 by failing to recognize an income tax write-off available to the purchaser in 2000 for depreciation.

[427] Mr. Bowie responded that his calculation did not ignore that write-off. He said that he dealt with it instead through tax shield calculations as the write-off for depreciation is variable, and it is simply a matter of timing. If the purchaser took a more rapid write-off now as suggested by the plaintiff, he or she would have less to write off in the future. In his view, a purchaser would be more likely to want an indication of ongoing discretionary cash flow, not a one-year snapshot with a write-off for depreciation that is larger than usual.

[428] The plaintiff’s counsel further suggested to Mr. Bowie that, since Mr. Newton owned 50% of the ABG, and the ABG owns the assets, he was effectively looking at the transaction from both sides, as a buyer and a seller. The plaintiff’s counsel pointed out as well that Mr. Newton is very well-informed about the ABG, and suggested that these factors indicate that he would not face the same degree of risk in purchasing the plaintiff’s shares, and would thus accept a lower rate of return.

[429] Mr. Bowie disagreed. He said that a valuator deals with fair market value assumptions based on a hypothetical purchaser and seller, not on the characteristics of a particular purchaser. He also observed that, even if the husband might be satisfied with a lower rate of return, it is doubtful that he would be prepared to pay a higher share value associated with that.

[430] Mr. Cheevers tested the reasonableness of Mr. Barbour’s share value by calculating the cumulative normalized income of the ABG before taxes from 1994 to 2000. He concluded that the historical earnings of $1,174,478 did not justify Mr. Barbour’s share value. Over the entire seven-year period, his calculations produced a rate of return of 2.2%. Over the last three years, they produced a return of 4.5%. Mr. Cheevers testified that these rates could not compete with the earnings available through other investments that did not carry the same risk as the forest industry.

[431] On cross-examination, Mr. Cheevers agreed that his analysis was limited to information in the ABG’s financial statements. He knew nothing of the ABG’s operations, and assumed the business had not changed to any significant extent since 1994. He agreed that it was not appropriate to compare year to year results if there have been significant changes in the assets or type of business carried out by a company.

[432] Mr. Shultz undertook an examination of what the ABG’s business earnings would have to be to support the Springer Appraisal equipment value based on an EBITDA analysis. He testified that around October 2000, medium-sized privately held companies such as the ABG changed hands at multiples of four to six times EBITDA. He calculated the ABG’s EBITDA from 1996 to 2000, and reached an average EBITDA of $1,125,000 through a series of averaging approaches. He then applied multiples of four, five and six, representing rates of return of 25%, 20% and 17% respectively, to that average, to estimate the enterprise value of the ABG under each multiple. He subtracted the non-capital deliverables from each of the three totals, and concluded that the remaining balance, which ranged from $382,000 to $2,632,000, represented the ABG’s deemed equipment value. Those balances were well below the Springer Appraisal equipment value of $10,790,000, and Mr. Shultz concluded that values derived from commonly used multiples in similar transactions could not support that value.

[433] Next, Mr. Shultz used the same EBITDA calculation to determine what the fair market value of the ABG would have to be to support the equipment values in the AA Appraisal, the Springer Appraisal, and the Ritchie Bros. Appraisal, as well as the related EBITDA multiple and rate of return.

[434] He concluded that to support the AA Appraisal value of $12,760,000, the ABG would have to be valued at $16,879,000, and would have an EBITDA multiple of 15 with a corresponding rate of return of 7%. The value required to support the Springer Appraisal would be $14,628,000 with an EBITDA multiple of 13 and a rate of return of 8%. The Ritchie Bros. Appraisal would require an enterprise value of $9,002,000 and a multiple of 8 associated with a rate of return of 12.5%.

[435] Mr. Shultz said that, by way of comparison, publicly traded companies in the forest industry have an average multiple of 5, with a corresponding average return of 20%. He concluded that the range of EBITDA multiples commonly used to value similar transactions does not provide a rational result. Instead, it produces equipment values for the ABG that are lower than those that could be achieved by simply selling the equipment.

[436] He also found that the equipment values in each of the three appraisals were too high to provide an acceptable rate of return when tested against the ABG’s average EBITDA. Mr. Shultz accordingly concluded that common sense, as well as valuation principles, dictated that it was appropriate to abandon fair market value in continued use as the proper premise, and instead value the equipment on a value-in-exchange basis, which he viewed as the same as fair market value or auction value. In essence, Mr. Schultz testified that if the owner is able to sell the ABG equipment at a Ritchie Bros. auction for $4,500,000, it would be inappropriate to value it in the lower range of $382,000 to $2,632,000 that would result from his EBITDA-based value-in-use analysis.

[437] On cross-examination, the plaintiff’s counsel again raised the failure to differentiate between sustaining and growth capital expenditures in the deduction for the net capital expenditures in Mr. Shultz’s analysis. Mr. Shultz, like Mr. Bowie, said that he does not differentiate between these because he assumes that businesses will always spend money on capital acquisitions to enhance their future profitability, and it is characteristic to average those expenses over time. Here, the expenditures were intended to further the ABG’s activities in the logging business and it would not be appropriate to take those capital expenditures out of the analysis. They expire over time and so must be averaged over a period of years.

[438] On cross-examination, Mr. Shultz agreed that an EBITDA comparison would not be appropriate for dissimilar businesses, and that there are differences between publicly traded forest companies and the ABG. As a result, he conceded that his comparison with rates of return from those public companies may be imprecise, but said that they provide the best EBITDA comparison available as they are in the same industry, and subject to the economic influences in the same marketplace.

[439] Mr. Shultz agreed that his analysis was based on an assumption that all of the ABG revenue arose from applying its equipment in various activities related to the logging industry. He agreed that if that assumption was wrong and the ABG carried on operations unrelated to logging, then the revenue related to logging equipment would be correspondingly reduced.

[440] The plaintiff’s counsel suggested to Mr. Shultz that if the ABG had an obvious trend of increasing profit, it was wrong to use a historical average of EBITDA which went beyond that period. Mr. Shultz replied that if there was such a trend it would be appropriate to average the last three years. He said, however, that it was not appropriate to simply take the best year as indicative of future profit. A valuator should always average back somewhat for the risk that some future years will not be as good. In analyzing earnings for any practical purpose in a valuation, it is always necessary to look at them over a reasonable period and then apply judgment as to whether that history is a reasonable predictor of the future. In the case of the ABG, he did not accept that new operations made it inappropriate to look at historical earnings. It was not as if an old business had stopped and a new one had started. He pointed out that 1996 was also a very good year.

[441] The plaintiff’s counsel attacked all three defence experts for normalizing the ABG management income at $200,000 in their calculations, when it had varied between $78,000 to $922,000 between 1995 and 2000. The witnesses agreed that the figure chosen as normalized management income affects the calculation of discretionary cash flow and EBITDA. They pointed out, however, that they adopted the $200,000 figure as Mr. Barbour had used it in his calculation of pre-tax cash flow, and they agreed that it was a reasonable theoretical estimate of management compensation in a company like the ABG.

[442] I conclude that the earnings assumption is a fundamental element of the premise of fair market value in continued use, and that the accepted means of testing that assumption is ascertaining the expected rate of return through an analysis of the normalized historical cash flow of the business.

[443] Mr. Bowie pointed out that Mr. Barbour’s Report #2 was a comprehensive valuation report under Standard 110 of the CICBV, and as such is expected to contain the highest level of assurance as to the accuracy of its conclusion. As well, section 3.1D of Standard 120 of the CICBV operative in 2006 requires a valuation report to include sufficient evidence to ensure that its conclusions are properly supported. Mr. Bowie testified that one would expect such a report to include disclosure of the earnings assumption, and a comprehensive analysis addressing it.

[444] I find that Mr. Barbour did not do such an analysis. Instead, he relied on increased capital expenditures in 1998 and 1999, and high revenue in 2000, to conclude that the ABG’s performance in 2000 was representative of the expected rate of return, and that this rate was adequate to support the Springer Appraisal value. I find that this analysis was a superficial and inadequate test of the earnings assumption.

[445] The analyses of the three defence experts, each working independently and each using a different approach, satisfy me that the ABG’s earnings could not support an equipment value based on a premise of fair market value in continued use. While the plaintiff demonstrated that any calculation of normalized cash flow is sensitive to the interpretation and adjustment of a number of variables, that does not alter my conclusion. It was clear that any adjustments to these experts’ calculations would have to be significant to bring the ABG’s normalized cash flow to a level that would justify a value such as that in the Springer Appraisal, based on a value-in-use premise. Nothing in the evidence about the ABG’s financial performance, including Mr. Barbour’s testimony, convinces me that such adjustments are possible or practical.

[446] I conclude that Mr. Harder did not did not breach the standard of care of a reasonably competent chartered business valuator by failing to obtain an appraisal based on fair market value in continued use as a basis for his valuation.

3) Was it reasonable for Mr. Harder to rely on the Ritchie Bros. Appraisal?

[447] The analysis in the last section leads to the conclusion that the premise of value-in-use, or fair market value in continued use, must be abandoned as the basis for appraising the ABG equipment, and replaced by an appraisal based on a value-in-exchange premise. The question therefore arises as to whether it was reasonable for Mr. Harder to accept the Ritchie Bros. Appraisal as an appropriate value-in-exchange appraisal for his valuation.

[448] The plaintiff says that it was unreasonable for Mr. Harder to rely on the Ritchie Bros. Appraisal as it was premised on a forced liquidation scenario inconsistent with a going concern valuation. It assumed that the equipment would be auctioned within 45 days by a seller under compulsion, as once he or she commits to sell at a Ritchie Bros. auction there is no reserve and the seller cannot bid. As well, the plaintiff says that many characteristics of the auction process, such as the weather, the date of the auction, and low attendance, have a potentially negative impact on auction values.

[449] She argues that even if a value-in-use premise cannot be sustained, the ABG remained a going concern. It was not under any compulsion to sell its equipment precipitously, and Mr. Harder should have obtained another appraisal based on a premise appropriate to those circumstances. Since the plaintiff’s argument focused on the use of a value-in-use appraisal, she did not expressly address what value-in-exchange premise would be appropriate. I infer that it would be an orderly liquidation value, using comparables from dealers rather than auction prices, and permitting longer exposure to the market.

[450] The plaintiff also took issue with the methodology used by Ritchie Bros. She argues that the appraisal was not conducted by certified appraisers, and their comparables were restricted to their own auction sales, which reveal a wide range of values, demonstrating the volatility of auction prices. As well, she suggests that a previous relationship between Mr. Newton and David Carswell, one of the Ritchie Bros. appraisers, raises the question of whether Ritchie Bros. was biased in favour of Mr. Newton. Finally, she complains that the Ritchie Bros. appraisers were not called as witnesses.

[451] At the outset, I observe that the inconsistent use of appraisal terminology in the evidence makes it somewhat difficult to analyze this issue with precision. For example, Mr. Shultz broadly interpreted value-in-exchange to be the same as fair market value or auction value. The Springer Appraisal uses fair market value as a separate premise, while the AA Appraisal equates it with orderly liquidation value, and others view it as a generic term that covers different appraisal premises. The Springer Appraisal definition of orderly liquidation value approximates the AA Appraisal definition of auction value. Both the AA Appraisal and the Ritchie Bros. Appraisal are said to be based on an auction value premise, but they are millions of dollars apart. Witnesses active in the marketplace, such as Mr. Caufield and Mr. de Sousa, eschew such methodological terms in their definitions of fair market value.

[452] I reject the plaintiff’s suggestion that a past relationship between Mr. Newton and a representative of Ritchie Bros. led to bias in the Ritchie Bros. Appraisal. There is no evidence to support such an allegation other than speculation on her part.

[453] I agree that, from a theoretical perspective, the assumptions underlying the Ritchie Bros. Appraisal conform to a methodological premise of forced liquidation. The equipment receives 45 days of market exposure. There is an element of compulsion since once a seller signs a contract with Ritchie Bros., he or she loses the opportunity to negotiate or control the purchase price. I also accept that, in the theoretical framework, the ABG remained a going concern and was not in a situation of forced liquidation.

[454] It is apparent that Mr. Harder took a practical, rather than theoretical, approach in relying on the Ritchie Bros. Appraisal. He testified that he was aware of the assumptions on which the Ritchie Bros. Appraisal was based. He believed it was appropriate to use it, however, because in his valuation experience with equipment appraisals and vendors, Ritchie Bros. routinely sold the kind of used logging equipment owned by the ABG, and their prices represented market value for such equipment. He said that he used the Ritchie Bros. equipment value in both his going concern and liquidation calculations because be believed that the ABG equipment value would not change in those scenarios, as long as there was proper exposure to the market and a logical and reasonable approach to the sale, both of which he anticipated a Ritchie Bros. auction would provide.

[455] Mr. Harder said that although he was not familiar with the database or the comparables used by Ritchie Bros., he knew the firm to be deep in their experience and in the volume of sales they did for this kind of equipment. As well, he was aware that they would actually inspect the ABG equipment. Mr. Harder knew that the Ritchie Bros. appraisers were not accredited, but said he was not concerned about this as he believed they did credible work based on their experience in the industry and the market.

[456] In essence, Mr. Harder looked to the marketplace instead of the theoretical appraisal premises in choosing to use the Ritchie Bros. Appraisal. He argues that this was justified because of the unique place Ritchie Bros. occupies in the market for used logging equipment in British Columbia, and says that their appraisal provided acceptable information as to the market value of equipment like that owned by the ABG.

[457] To determine whether that approach met the standard of care, it is necessary to examine exactly what Ritchie Bros. is and does. That information was provided primarily by Mr. Caufield, the manager of special projects for Ritchie Bros., and by Mr. de Sousa, an expert witness who works for Finning Canada. Mr. Bowie, Mr. Schultz, and Mr. Gauthier also provided evidence about Ritchie Bros.

[458] Mr. Caufield testified that Ritchie Bros. originated as an auction firm in Kelowna 50 years ago, and is now a public company and the largest auction house and largest seller of used industrial equipment in the world. Its 25 closest competitors do less than one quarter of Ritchie Bros.’ sales volume, which was over $2.7 billion in 2006. Ritchie Bros. carries out 160 industrial auctions a year at 29 auction sites. Two of those sites are in British Columbia, in Surrey and Prince George. Each conducts four auctions per year. Ritchie Bros. auctions have no reserve prices. Its business model, which Mr. Caufield described in detail, is based on aggressive marketing to the widest possible customer base. Mr. Caufield said that Ritchie Bros. uses a relatively short market exposure to place as much equipment as possible in its advertising, and to retain customer attention.

[459] He said that Ritchie Bros. sells used equipment on an as is/where is basis. The only modifications they make are cosmetic, to maximize the return. Ritchie Bros. provides no representations, guarantees, or warranties. Nor does it provide lease-to-buy arrangements.

[460] Mr. Caufield said that typically between 900 and 1,500 people attend its auctions, and purchasers can also bid by telephone in advance. Eighty-five percent of the sellers are operating businesses, and only 15% tend to be financial institutions. Eighty percent of the purchasers are end-users, the rest are dealers. He said that Ritchie Bros. takes care to provide comfortable and convenient facilities for its customers, and denied that attendance, and therefore price, can be affected by such factors as weather, location, or date of the auction.

[461] It was Mr. Caufield’s view that, although Ritchie Bros. sells equipment by auction on a no-reserve basis, its prices represent retail value, or fair market value for used equipment sold “as is”. He resisted the term “liquidation” in the context of Ritchie Bros.’ operations, as he said that connotes receivership or a poorly advertised distress sale, which is not what Ritchie Bros. does. He maintained that its advertising, preparation, and presentation distinguishes it from a liquidation context.

[462] Mr. Caufield agreed that Ritchie Bros.’ appraisal department does not use a gradient of theoretical premises. Instead, they rely on comparables derived from prices obtained at their auctions. Although they sometimes look to other sources, he said they do not use dealer comparables as those represent asking prices, rather than sales prices, and so are not relevant. Mr. Caufield testified that Ritchie Bros. uses the same database if they are asked to value equipment to sell.

[463] I acknowledge that Mr. Harder did not call any of the Ritchie Bros. employees who actually did the Ritchie Bros. appraisal. However, I draw no adverse inference from that, as the appraisal is an exhibit and the process is largely an averaging analysis of the Ritchie Bros. data bank, which leaves little scope for personal judgment.

[464] Mr. Caufield was an admitted advocate for Ritchie Bros., and I would be reluctant to base my findings with respect to the validity of Mr. Harder’s approach on his evidence alone. However, his account of Ritchie Bros.’ position in the used equipment market was corroborated by the evidence of Mr. Tony de Sousa.

[465] Mr. de Sousa testified as an expert in market conditions for used logging and road-building equipment in British Columbia. He has spent 30 years with Finning Canada, a large international company that sells and services new and used equipment, predominantly the Caterpillar brand. Mr. de Sousa has worked in logging equipment sales in British Columbia for a number of years, and is presently Finning’s general manager of equipment services, including all used equipment for western Canada.

[466] Mr. de Sousa was retained as an expert in an unusual manner. His expertise came to light through a casual conversation with a friend who was an articled student in the law firm of Mr. Harder’s counsel. He had not testified as an expert witness before. He nevertheless impressed me as an objective witness with considerable practical knowledge of the used equipment market in western Canada.

[467] Mr. de Sousa described Ritchie Bros. as a “huge, huge” competitor of Finning Canada in used equipment sold on an as is/where is basis, and said that its revenue in that field far exceeds Finning’s. He testified that Ritchie Bros. plays such a large part in the used equipment market in western Canada that its auctions are a very reliable resource as to trends and prices in that market. Finning encourages its staff to attend Ritchie Bros. auctions to pick up market trends and intelligence about the competition. He said that in many cases a Ritchie Bros. auction sale is the market at that point in time. He views both Ritchie Bros. and Finning as retailers selling to end-users, and says that Ritchie Bros.’ auction prices are very close to Finning’s prices for equipment sold on an as is basis.

[468] Mr. de Sousa did not deal with equipment values in terms of appraisal premises. In his view, fair market value is the price at which a seller will sell and a buyer will buy. He did not view auction sales as equivalent to forced liquidation, saying that the term liquidation applies only when there are no options. He said that Finning’s exposure for equipment is typically three months, after which they either adjust the price, or take the piece to an auction.

[469] Mr. de Sousa described significant differences in used equipment comparables drawn from dealers, compared to those from auction sales. He said that these preclude reliably matching and comparing dealer and auction prices. Dealers’ prices are generally higher because they sell used equipment with value-added options such as reconditioning, extras, financing, warranties, or contracts for repair and maintenance, all of which are not typically available through auctions. As well, an auction price is a done deal, whereas a dealer price is often a wishful list price, and says nothing about the final purchase price.

[470] Mr. de Sousa agreed that there is no innate compulsion when shopping at a dealership, and a dealer’s setting can be more convenient than an auction. As well, he acknowledged that auction results can be volatile, and are influenced by the number of bidders. He disagreed, however, that that volatility necessarily means that auction prices are not competitive with dealer prices, because both work under the same market forces, and because dealer prices will have some value-added component.

[471] Mr. de Sousa testified that Finning does not buy equipment at Ritchie Bros. auctions to “flip it” for a higher price, since Ritchie Bros.’ prices are generally market value. Finning only buys used equipment at Ritchie Bros. when they can sell it for more by adding value to it. Finning occasionally sells through Ritchie Bros. where it has made a mistake in the market, and cannot make a profit by adding value to the used equipment.

[472] Mr. Harder’s reliance on Ritchie Bros. was supported by Mr. Bowie. He testified that, as a valuator, he would be very comfortable relying on a Ritchie Bros.’ Appraisal for the ABG equipment, as the type of equipment owned by the ABG is commonly bought and sold at Ritchie Bros, and the firm has a good feel for prices in that field. He said that while they use an auction format, Ritchie Bros.’ sales are not a forced liquidation. Their auctions are known as a forum where sales take place without duress. Mr. Bowie testified that Ritchie Bros.’ auction values could reasonably be expected to reflect market value or orderly liquidation value for such equipment.

[473] Mr. Bowie said that he would find a Ritchie Bros. Appraisal of the ABG equipment met the requirements of Specific Valuation Standard 120 VI of the CICBV set out at paragraph [374] of these reasons, which sets the standard by which a valuator assesses the adequacy of a report from a specialist on which he relies.

[474] Mr. Bowie did not view using the Ritchie Bros. Appraisal as inconsistent with a going concern valuation as, in his view, it represented market value, which is what the equipment would sell for absent a distress situation. For the same reason, Mr. Bowie did not have difficulty with Mr. Harder’s decision to use the Ritchie Bros. Appraisal in both a liquidation valuation and a going concern valuation.

[475] Mr. Shultz had limited personal experience with Ritchie Bros. However, he offered the view that by virtue of its sales volume, Ritchie Bros. is the closest thing to a stock market for used equipment, and satisfies the definition of fair market value. He disagreed that a sale at a Ritchie Bros. auction represents forced liquidation.

[476] Although language difficulties sometimes interfered with the clarity of his evidence, Mr. Gauthier testified that a Ritchie Bros. auction with merchandise exposed to the market for 45 days is not a forced liquidation. He said there are three markets for used equipment based on quality, standards, and guarantees under which the equipment is sold. The first is dealers in new equipment who offer used equipment certified to manufacturers’ specifications. The second is used equipment sales offering equipment with added value. The third is an auction where repairs are done for appearance only, and the equipment is sold on an as is basis with no guarantee. Prices generally follow that scale, but Mr. Gauthier said that in western Canada the auction market is very strong. Mr. Gauthier testified that he relied heavily on Ritchie Bros.’ comparables in doing the GEC appraisal on an orderly liquidation value premise.

[477] Mr. Harder points to footnote 8 in Chapter 1 of the 2000 Edition of the ASA Text at 19 as support for the view that auction prices may represent orderly liquidation value in some circumstances:

The term auction usually refers to forced liquidation value, but there are exceptions to this general rule; for example, in certain industries, an auction is the standard industry method for disposing of assets, in which case it may be equal to orderly liquidation value, assuming a normal exposure time (and may be equal to fair market value under certain conditions). The essential difference between orderly liquidation value and forced liquidation value is one of exposure time.

[emphasis in original]

This view is repeated at page 7 of the AA Appraisal. Mr. Martins acknowledged that orderly liquidation value can be achieved at a properly advertised and conducted auction sale.

[478] I conclude that the plaintiff has failed to establish that Mr. Harder’s use of the Ritchie Bros. Appraisal as representative of the fair market value of the ABG equipment was unreasonable. I find that Ritchie Bros. auctions do not fit easily into the theoretical auction or forced liquidation appraisal premises. While aspects of its auctions are consistent with those premises, I am satisfied that its sales volume, clientele, and marketing process give it a unique place in the market for used logging equipment sold on an as is basis in British Columbia, and support the view that its auction prices can reasonably be taken to be representative of fair market value for such equipment. There is nothing to suggest that the ABG equipment would be sold with value-added features, or as anything other than used equipment available on an as is basis.

[479] The selection of a suitable equipment appraisal by a valuator is essentially a question of professional judgment. I am not convinced that it was unreasonable for Mr. Harder to adopt a practical, as opposed to theoretical, approach in deciding that the Ritchie Bros. Appraisal represented fair market value. In reaching that conclusion I place considerable weight on Mr. Bowie’s view that the use of a Ritchie Bros. appraisal for the ABG equipment would satisfy the professional standards of the CICBV. As well, the multiple interpretations and results of the theoretical appraisal premises in the appraisal evidence led at this trial suggests that the theoretical approach can produce inconsistent and widespread results, and does not preclude a practical approach that is based on a local market.

[480] I find that Mr. Harder’s reliance on the Ritchie Bros. Appraisal was not a breach of the standard of care of a reasonably competent valuator.

4) Failing to properly reconcile differences in equipment values

[481] The plaintiff argues that Mr. Harder neglected to adequately reconcile the differences in the capital asset list of the ABG compared with the asset list in the AA Appraisal and the Ritchie Bros. Appraisal.

[482] I have found that it was appropriate for Mr. Harder to reject the AA Appraisal. There is accordingly no basis for finding him at fault for not performing a reconciliation related to that appraisal.

[483] Mr. Harder did reconcile the ABG capital asset list of October 31, 2000 with the Ritchie Bros. Appraisal in reaching a final value for the equipment as of October 31, 2000. First, he deducted any equipment covered by the Ritchie Bros. Appraisal that had been purchased since that date. His reconciliation of the remaining equipment with the ABG asset list revealed about 253 pieces that had not been appraised by Ritchie Bros. The vast majority of these were the miscellaneous equipment, although there were some larger pieces as well.

[484] Mr. Harder reviewed each of these assets with Mr. Brewer and Mr. Newton at their meeting on February 9, 2001, and they reached “agreed upon values” for most. In many cases, these were the net book value. For others, Mr. Harder reached his own adjusted value based on the information they provided. This exercise produced a final value of $435,595 for the 253 items.

[485] Mr. Harder testified that he did not find it necessary to adjust his final equipment value upward to recognize depreciation between October 30, 2000 and February 1, 2001 as logging stopped over the winter and the equipment had had little use during those months.

[486] These adjustments produced Mr. Harder’s final equipment value of $4,889,800 in his valuation.

[487] I can find no basis on which to criticize this process. Mr. Bowie confirmed that it is common to accept either net book value or some other estimate of value in such cases. Significantly, Mr. Barbour adopted Mr. Harder’s values for the miscellaneous equipment in calculating his final equipment value for his valuation. I note that the miscellaneous equipment was not valued at all by the Springer Appraisal, and was valued at considerably less than Mr. Harder’s value by the GEC Appraisal.

[488] The plaintiff complains that Mr. Harder did not discuss these adjustments with her and she did not authorize them. In my view, these adjustments fell within the realm of Mr. Harder’s professional judgment and expertise, and were not a matter on which he had to seek instructions.

[489] I can find no basis for concluding that Mr. Harder breached the standard of care of a reasonably competent chartered business valuator in the manner in which he reconciled the equipment list to provide a final value.

5) Failing to provide appropriate advice to the plaintiff about a third equipment appraisal

[490] The plaintiff says that, given the discrepancy between the AA Appraisal and the Ritchie Bros. Appraisal, she did not receive adequate advice from Mr. Harder about the purpose and importance of a third appraisal based on a higher methodological premise than that used by Ritchie Bros., so that she could assess her possible range of outcomes. She says that, had she received such advice, she would have obtained a third appraisal which would undoubtedly have been higher than the Ritchie Bros. Appraisal, and would have significantly increased the value of her shares. She acknowledges that Mr. Newton would likely have refused to settle based on that higher value, and she would therefore have proceeded to trial with the higher valuation.

[491] The plaintiff’s position is based on Mr. Barbour’s view, expressed in Report #2, that the standard of practice required a valuator faced with divergent appraisals to advise the client and her counsel that a third party equipment appraisal based on value-in-use methodology was “required and essential”. Mr. Barbour’s opinion has been rendered obsolete to some extent by my findings that a value-in-use methodology could not be supported by the ABG’s earnings, and that Mr. Harder was entitled to rely on the Ritchie Bros. Appraisal. It nevertheless does raise the issue of Mr. Harder’s role in consideration of a third appraisal.

[492] Mr. Bowie agreed with Mr. Barbour to a limited extent. He concurred that a valuator should raise an independent appraisal as an option with a client who is unhappy with an existing appraisal, if the valuator has no other credible and independent information on which to rely. He did not agree that it was essential to recommend a value-in-use methodology for any new appraisal.

[493] Mr. Shultz testified that a valuator may or may not discuss another appraisal and its likely result with the client and her counsel in these circumstances. It was his view that the valuator’s mandate is not to strain for a high value, but to give a value that he can support and with which he is comfortable.

[494] As an independent expert retained to provide an objective valuation, I find that Mr. Harder was not subject to a broad duty to fully advise and inform the plaintiff with respect to strategic decisions to advance her best options in her matrimonial dispute. I therefore do not accept that he was obliged to advocate a third appraisal, or advise her that it was “required and essential”, when he was satisfied with the Ritchie Bros. Appraisal. I find that the standard of care required that he simply raise the option of another appraisal with the plaintiff, if she was unhappy with the Ritchie Bros. equipment value, and leave it to her to decide whether she wished to pursue it.

[495] I am satisfied that Mr. Harder did so at the meeting with the plaintiff and Mr. Hubley on March 15, 2001. I accept Mr. Hubley’s recollection of that meeting, which confirms that Mr. Harder raised an alternative appraisal and its likely price with the plaintiff. While Mr. Harder has little recollection of the meeting, I accept his evidence that his note of “$12,000 to $15,000 plus disbursements” on that day refers to the estimated cost of a third appraisal obtained from Mr. Pearson.

[496] The plaintiff says that Mr. Harder knew that GEC had appraised the ABG equipment for $5.3 million, and that Mr. Pearson had advised him that, if he did an appraisal, his value would be somewhere between the AA Appraisal and the Ritchie Bros. but closer to Ritchie Bros. She says that Mr. Harder should have shared this information with her in discussing a third appraisal.

[497] I accept that Mr. Harder did not give the plaintiff that information. However, I am not convinced that this represented a breach of the standard of care, given my finding as to the narrow ambit of his obligation. For the reasons set out later in this judgment, I find the responsibility to fully inform and advise the plaintiff about another appraisal lay with Mr. Marzban as her advocate. In my view, it was sufficient for Mr. Harder to alert the plaintiff to the possibility of a third appraisal and await some indication from her that she wished to pursue this course.

[498] The plaintiff gave no such indication. I am satisfied that she knew that a higher equipment value would increase the value of her shares, and that Mr. Hubley had told her that she could challenge Mr. Harder if she was unhappy with his approach. I find that she discussed the option of a third appraisal at some length later with Mr. Hubley. However, she did not evince any interest in pursuing this, or even raise the obvious query with him or Mr. Harder as to what the likely result of another appraisal would be.

[499] Mr. Harder testified that when he wrote his memorandum of April 20, 2001 he was still uncertain as to whether the issue of getting another appraisal had been resolved. He accordingly made it clear in that memorandum that his valuation was based on the Ritchie Bros. equipment value. I find that the plaintiff proceeded to negotiate the settlement knowing that it was based on the Ritchie Bros. Appraisal, and aware that she could have obtained a third appraisal had she wished to do so.

[500] Finally, I am not satisfied in any event that Mr. Harder knew that Mr. Pearson’s view was that his appraisal would be somewhere between the AA Appraisal and the Ritchie Bros. Appraisal but closer to Ritchie Bros. Neither he nor Mr. Harder had a complete recollection of their dealings. Both agreed that Mr. Harder had only sent Mr. Pearson a part of the AA Appraisal, and none of the Ritchie Bros. Appraisal.

[501] Mr. Harder said Mr. Pearson told him that the AA Appraisal was high. He did not recall him saying anything about the Ritchie Bros. Appraisal.

[502] Mr. Pearson testified that he told Mr. Harder that the AA Appraisal was too high, and his value would be closer to Ritchie Bros. It is not clear to me how he could have made that statement, however, when he had not seen the Ritchie Bros. Appraisal. Moreover, by coincidence, Mr. Barbour consulted Mr. Pearson in 2004 for an opinion on this case. He sent Mr. Pearson complete copies of both appraisals, and asked for a “gut feeling” report on why two auction values would be so different. Mr. Pearson, having forgotten his earlier dealings with Mr. Harder, wrote back to Mr. Barbour advising that the Ritchie Bros. Appraisal was “nearer the mark”.

[503] Given the fact that Mr. Harder did not send Mr. Pearson the Ritchie Bros. Appraisal, the divergent evidence of Mr. Harder and Mr. Pearson as to whether Ritchie Bros. was mentioned in their conversation, and the similarity of Mr. Pearson’s account of his opinion to Mr. Barbour, I believe that Mr. Pearson may be mistaken in believing that he gave his opinion on the two appraisals to Mr. Harder, and in fact gave it to Mr. Barbour instead.

[504] I find that Mr. Harder met the standard of care of a reasonably competent business valuator in raising the option of a third appraisal with the plaintiff and awaiting her instructions as to whether she wished to explore this.

Failing to take into account equity held by the ABG in leased equipment

[505] The plaintiff argues that Mr. Harder breached the standard of care by failing to obtain and review the ABG equipment leases and purchase agreements to evaluate the equity it had in leased assets. As a result, he undervalued the equipment.

[506] The evidence indicated that logging companies commonly buy equipment by arranging leases with a purchase option. There are two types of leases. Capital leases are similar to a financing arrangement, and provide a right to apply payments to the purchase price if the lessee decides to buy the equipment. Thus, equity accumulates, and the ultimate buy-out value is less than the market value. Operating leases are straight rental agreements. No equity accumulates, and at the end of the term the lessee may return the equipment or negotiate a buy-out. The buy-out price is typically set at estimated market value as of the buy-out date.

[507] It is common ground that the ABG was leasing some equipment during 2000 and 2001.

[508] Mr. Barbour testified that Mr. Harder should have been cognizant of the potential equity in that equipment, and should have reviewed the leases to determine if such equity existed. If so, that should have been included in the equipment value. He says that Mr. Harder’s failure to do this led him to underestimate that value.

[509] Mr. Harder testified that he was aware of the potential equity in leased assets and asked Mr. Brewer about this. Mr. Brewer told him that the AA Appraisal did include leased equipment, but it was there by mistake as the ABG had no ownership interest in that equipment. Mr. Harder said that he then checked this information by reviewing the ABG financial statements, since the generally accepted accounting principles (“GAAP”) require disclosure of capital leases that give economic ownership to the lessee in the financial statements. He found that no leases were disclosed, and so concluded that any leases were operating leases and did not need to be included in the equipment value. He did not investigate further by asking Mr. Brewer to produce the leases.

[510] Mr. Hubley confirmed that, from a tax perspective, it is beneficial for a company to record its capital leases in its financial statements. He said he would have expected the ABG to record them since they were trying to raise capital during this time, and inclusion of the leases would enhance their reported assets.

[511] Mr. Bowie agreed that GAAP require that capital leases be reflected in financial statements. He said that if they are not, it is reasonable for a valuator to conclude that the company has no capital leases. While it may have operating leases, he would not expect significant equity in those. He said that he would not be surprised if a valuator preparing a report at the level of an estimate did not do any further investigation into this.

[512] Mr. Shultz agreed with Mr. Barbour that it is reasonable for a valuator to review equipment leases to ascertain off-balance sheet equity, and said that he would ordinarily do this. Nevertheless, he said that in this case the fact the financial statements were prepared in accordance with GAAP by a professional accountant permitted Mr. Harder to accept Mr. Brewer’s advice that they were operating leases, particularly in the context of a review engagement. Mr. Shultz conceded, however, that this view was informed to a degree by the fact that he did not know whether the amount involved was significant.

[513] Mr. Cheevers said that when valuing a company, he looks to see how the company records its lease payments in its financial statements since there may be equity built into them. He said that if capital lease payments are recorded as an operating expense, this has a tendency to understate income and make it necessary to examine what is recorded as the cost of capital assets. He agreed that at a minimum he would look at the lease contracts to understand the terms.

[514] As mentioned earlier in these reasons, General Standard III of Standard 120 of the CICBV states that determining the evidence necessary to support a valuation is a matter of professional judgment, to be exercised in light of the nature of the valuation and the use to which the report will be put. Mr. Harder was to provide an estimate, which represents a middle level of assurance. The expert evidence discloses two acceptable approaches to exploring the issue of equity in leased equipment when the valuator has access to financial statements prepared in accordance with GAAP. Mr. Harder did not ignore the possibility of equity in leased equipment. He chose one of those approaches. In my view, that was a reasonable exercise of his judgment, and cannot be said to fall below the acceptable standard.

Failure to discount the tax shield foregone

[515] It was common ground that the calculation of the tax shield foregone is a necessary step in a tangible asset backing calculation. The tax shield foregone is an artificial calculation that represents the difference in tax implications attendant on the purchase of a company’s assets as opposed to the purchase of its shares. When assets are purchased, the recorded cost of the assets in the transaction is their fair market value. When shares are purchased, the recorded cost of the assets is their depreciated value. Thus, a purchaser of assets has a better tax position as he or she will be able to depreciate the assets on a higher cost base. As a result, a purchaser of shares is entitled to a reduction in their value to compensate for their less favourable tax position. The tax shield foregone is the present value calculation of the tax saving that would be obtained by a purchaser of assets, and is deducted from the tangible asset value to place the purchaser of shares in the same position as a purchaser of assets.

[516] Mr. Harder calculated the tax shield foregone at $724,900, and entered that as a deduction in his tangible asset backing calculation.

[517] It was Mr. Barbour’s opinion that Mr. Harder should have discounted that deduction by 50%, as there was no indication that Mr. Newton was contemplating an imminent sale of the ABG shares to a third party. Mr. Barbour conceded that he was not aware of any authority for this proposition in either the valuation or legal field. Nevertheless, he said it was maintainable because the courts in matrimonial disputes commonly discount latent income taxes by up to 50% where the disposition of an asset is not imminent. Since the tax shield foregone is based on a proposition that there will be a future sale, the timing of which is uncertain, he says that a similar discount should apply by analogy.

[518] Plaintiff’s counsel also argued that Mr. Harder failed to consider the fact that Mr. Newton was both the buyer of the plaintiff’s shares, and also an owner as a 50% shareholder in the ABG. He would never have bought the assets of the ABG due to the tax consequences, and so did not have the leverage of an ordinary buyer to choose between buying assets or shares. He says it was therefore inappropriate to deduct the tax shield foregone.

[519] I do not accept these arguments. The weight of the expert evidence clearly indicates that the deduction of the tax shield foregone in its entirety is an inherent step in the tangible asset backing calculation of the fair market value of corporate shares. The concept makes no assumption as to a future disposition. It is based on a compensatory notion related to the manner in which the present sale is taking place. Nor does it make any assumption as to who the purchaser is. Fair market value by definition deals with a hypothetical arms length transaction.

[520] In Tearle v. Tearle (January 24, 1985), Vancouver 5936/D140458 at 20 - 21, [1985] B.C.W.L.D. 666 (P.C.) (S.C.) [Tearle], Rowles L.J.S.C., as she then was, provided the following summary of tax liabilities in the division of matrimonial assets:

In respect to Mr. Maxwell's argument, I question whether it is possible to set forth any absolute rule as to what tax liabilities should or should not be taken into account by the Court when determining a division of assets between spouses, because the circumstances of each particular case must surely be considered. Generally, however, it appears to me that:

(a) those taxes which are taken into account by valuators in arriving at a fair market value of an asset are an integral consideration in ascribing a value to an asset, and on that basis would be allowed by the Court;

(b) Tax liabilities which are likely to arise as an immediate consequence of a division of assets made under the Family Relations Act may be taken into account by a Court in adjusting the division of assets between spouses, assuming that those taxes do not overlap with those considered in arriving at the fair market value;

(c) There is no obligation on the Court to take hypothetical or speculative future tax liabilities into account in either arriving at a value to be ascribed to an asset, or in adjusting a division of assets between spouses.

In my view, the tax shield foregone clearly fits into paragraph (a) of that analysis.

[521] I reject Mr. Barbour’s view that Mr. Harder breached the standard of care of a reasonably competent chartered business valuator in deducting the entire tax shield foregone in the course of his tangible asset backing valuation.

Inappropriately acting as an advocate in the plaintiff’s matrimonial dispute

[522] This allegation arises from paragraph 38 of the Statement of Claim. The plaintiff argues that Mr. Harder became inappropriately involved in negotiating her matrimonial dispute with Mr. Brewer, a role that was properly Mr. Marzban’s. She points to Mr. Harder’s notes of late March and April 2001, which include references to offers and advice on negotiations.

[523] It is difficult to understand how this allegation could be related to any specific outcome that would influence the plaintiff’s decision to settle rather than go to trial. I nevertheless make the following observations and findings.

[524] While it appears that the plaintiff and Mr. Newton believed that Mr. Brewer and Mr. Harder were negotiating throughout their discussions, I am not satisfied that this was the case. Up to the end of March 2001, there is little to suggest that their discussions dealt with anything more than fact-finding and exchanging the information necessary for Mr. Harder’s valuation. On March 30, Mr. Harder did convey an offer from Mr. Brewer to the plaintiff with some comments. There are also documents in which Mr. Harder records dealing with “offers” thereafter. However, in mid-April he declined Mr. Hubley’s request to become involved in the negotiations. His memorandum of April 20, 2001 was clearly designed to assist the plaintiff in settlement negotiations, but Mr. Harder’s duties ended at that point. He had no involvement in the subsequent negotiations that led to the settlement.

[525] I am not convinced that Mr. Harder was directly involved in settlement negotiations. He did testify that, having provided advice on the negotiations, he might have had to consider at a later date whether he could continue to act as an independent expert if the matter proceeded to trial. I do not see that admission leading to liability in this action. I find Mr. Harder was not in breach of the standard of care with respect to this allegation.

Conclusion with respect to Mr. Harder and BDO Dunwoody LLP

[526] I conclude that Mr. Harder and BDO Dunwoody LLP did not breach the standard of care of a reasonably competent chartered business valuator and partnership in providing advice and services to the plaintiff. The action against them is dismissed.

The Allegations against Mr. Hubley

[527] The plaintiff argues that Mr. Hubley breached the standard of care of a reasonably competent chartered accountant by providing erroneous advice as to the value of her shares in the ABG. She says that he also failed to advise her properly with respect to the importance of investigating the large discrepancy between the AA Appraisal and the Ritchie Bros. Appraisal, and the implications of using the Ritchie Bros. Appraisal in the valuation. As well, she says that he breached the standard of care when he agreed to negotiate the settlement of her matrimonial dispute. She alleges that he was not qualified to undertake such a negotiation and, as a result, gave her erroneous and inadequate advice, and made concessions that were inconsistent with what a court would have done had the matter proceeded to trial.

[528] At paragraphs [310] to [316] of these reasons, I described the difficulties in identifying the precise allegations against Mr. Harder and Mr. Hubley in the pleadings. Those problems have been particularly acute in the case of Mr. Hubley, as the Statement of Claim contains no particulars pertaining to him alone. As well, I have found that the plaintiff could not have obtained a better settlement. She is accordingly limited to the allegations that Mr. Hubley’s actions or inaction led her to accept the settlement instead of proceeding to trial.

[529] Taking a generous view of the Statement of Claim and the manner in which the case against Mr. Hubley was presented and defended, I have concluded that the following list, cross-referenced to the paragraph numbers in the Statement of Claim, fairly represents the allegations against him:

1. Allegations arising before Mr. Hubley undertook the negotiations:

a) providing negligent advice with respect to the range of values of the plaintiff’s interest in the ABG [para. 33(a)];

b) failing to advise the plaintiff appropriately with respect to the discrepancies in the Ritchie Bros. and AA Appraisals, and the implications of using the Ritchie Bros. Appraisal in the valuation [paras. 27(h), 33(d)]; and

c) providing erroneous advice with respect to spousal support [para. 27(a)].

2. Negligent advice and representation in the negotiations [para. 36]:

a) undertaking the negotiation when he was not qualified to do so [para. 38];

b) providing erroneous advice with respect to tax issues during the negotiations [para. 33(a)];

c) failing to make adequate inquiry and investigation regarding Westwood [paras. 27(i) and (j)];

d) failing to advise the plaintiff with respect to the benefits of obtaining documents from third parties [27(e)];

e) failing to advise the plaintiff as to the appropriate valuation date, and failure to obtain updated financial information [para. 27(l)]; and

f) providing advice that led the plaintiff to settle her matrimonial claim instead of proceeding to trial [para. 36].

The evidence with respect to the standard of care

[530] While there are a number of decisions dealing with the standard of care of chartered accountants, most involve accountants in the role of auditors. I find that these are not apposite to Mr. Hubley’s role here as advisor and negotiator. I accordingly rely on the evidence of Mr. Barbour and Mr. Schultz, as well as the standards of the ICABC where appropriate, to establish the standard of care that governs Mr. Hubley.

[531] Mr. Barbour’s Report #3 deals with the standard of practice of a chartered accountant. I have stated some of my concerns about that report and Mr. Barbour’s evidence at paragraphs [322] to [326] of these Reasons, and will not repeat them here. I add the following observations that are relevant to his evidence concerning Mr. Hubley.

[532] Although Mr. Barbour has been a chartered accountant and member of the ICABC for over 30 years, he has practised as a chartered business valuator since 1988, and as a specialist in investigative and forensic accounting since 2000. Thus, he has had little recent experience working purely as a chartered accountant.

[533] Report #3 is largely devoid of a factual basis, and deals with a hypothetical generic chartered accountant engaged to assist a party in a matrimonial dispute. It nevertheless embarks on a selective critique of the conduct of that generic accountant that is clearly based on a fuller but unexpressed view of the facts related to this case. It is difficult to understand why Mr. Barbour was unwilling to include those assumed facts in his report, as required by the Rules of Court.

[534] During Mr. Barbour’s testimony, it became apparent that a number of his unexpressed factual assumptions were not representative of what actually occurred in this case. For example, Mr. Barbour testified that he believed Mr. Hubley used Mr. Harder’s liquidation value in negotiating the settlement, instead of his going concern valuation. When cross-examined on the basis for that belief, it was clear that this was mere surmise on his part. Mr. Barbour ultimately conceded that he did not know exactly what Mr. Hubley was retained to do, what instructions he received from the plaintiff, or what he actually did do. As a result, much of Report #3 is unrelated to the pleadings or the facts, and his views are of limited assistance to the plaintiff in her claim against Mr. Hubley.

[535] Mr. Schultz was called by Mr. Hubley to give expert evidence as to the standards and practices of a chartered accountant. While he is both a chartered accountant and chartered business valuator, he brings considerable expertise to his commentary on the duties of chartered accountants, as he has held a number of positions with the ICABC during his career, including serving as the President of that organization in 1988-89. He remains a member of its Standards Appeal Board. Mr. Shultz’s report is based on a lengthy statement of assumed facts, most of which have been established in the evidence at the trial.

[536] These observations lead me to place more weight on the evidence of Mr. Schultz where the opinions of the experts diverge.

Allegations arising before the negotiations

[537] Before dealing with the allegations in this section, I make the following findings with respect to the context in which they occurred.

[538] I find that from the outset of his dealings with the plaintiff, Mr. Hubley made it clear to her that he had no experience in matrimonial matters, and that he was not a lawyer or a valuator. I find that the plaintiff understood that.

[539] I find that from May 2000 to the end of April 2001, Mr. Hubley’s role was essentially limited to providing support to the plaintiff, and seeing her into the hands of appropriate legal and valuation professionals. Once Mr. Harder and Mr. Marzban were retained, I find Mr. Hubley became what Mr. Marzban referred to as the “communication hub” between them and the plaintiff, and they often dealt with her through Mr. Hubley. I find that this pattern developed with the plaintiff’s knowledge and consent, for reasons of convenience since she and Mr. Hubley were both in Nanaimo, and because she was comfortable with Mr. Hubley. I find, however, that Mr. Hubley continually reinforced and explained to the plaintiff the distinction between his limited role, and those of Mr. Harder and Mr. Marzban.

1) Providing negligent advice with respect to the value of the plaintiff’s shares

[540] The plaintiff, supported by Mr. Barbour, says that Mr. Hubley breached the standard of care in preparing the spreadsheet of share values to show her in May 2000. Mr. Barbour says that Mr. Hubley’s calculations were neither a liquidation approach nor a going concerning calculation, and he erred in deducting full latent income taxes in his calculations, making his range of $900,000 to $2 million for the ABG shares too conservative. The plaintiff argues that this erroneous calculation gave her a misleading and lasting impression as to the likely value of her shares, and contributed to her decision to settle her claim unwisely in that range in October 2001.

[541] The evidence does not support this allegation. Mr. Barbour’s opinion shows no understanding of the limited purpose for which the spreadsheet was prepared, or the context in which Mr. Hubley explained it to the plaintiff. In Mr. Hubley’s words, it was a “quick and dirty” conservative estimate based on hypothetical numbers that he prepared for the limited purpose of demonstrating to the plaintiff that the ABG equipment value was directly related to the value of her interest in the company.

[542] The plaintiff testified that she knew that these values were hypothetical, and that she grasped their limited purpose. In the ensuing months, Mr. Hubley consistently advised her that there was insufficient financial information to reliably assess the value of the ABG until Mr. Harder finished his valuation. The plaintiff testified that she chose her target number for the negotiations based on the information from Mr. Harder.

[543] I conclude that there is no basis for a finding of liability arising from Mr. Hubley’s preparation of this document.

2) Failure to advise appropriately with respect to the equipment appraisals

[544] The plaintiff alleges that Mr. Hubley failed to properly advise her about the importance of obtaining a third appraisal. She argues that instead of accepting the Ritchie Bros. Appraisal and Mr. Harder’s valuation based on it, Mr. Hubley should have ensured that she obtained an independent appraisal to develop her best position before deciding what to do in the negotiations.

[545] At the time the issue of the third appraisal arose, Mr. Hubley was in a supportive role. He believed that Ritchie Bros. was a reputable firm, and he knew that Mr. Harder found their appraisal acceptable. He was not a valuator, and had no reason to doubt Mr. Harder’s view, apart from the fact that the plaintiff was unhappy with the Ritchie Bros. Appraisal equipment value.

[546] I have earlier found that Mr. Hubley and the plaintiff discussed the option and cost of a third appraisal with Mr. Harder at a meeting on March 15, 2001. I find that on March 26, 2001, Mr. Hubley and the plaintiff had a more extensive discussion about a third appraisal. I am satisfied that at this meeting they discussed the fact that Mr. Newton and Mr. Brewer were unhappy with Mr. Harder’s numbers based on the Ritchie Bros. Appraisal, and whether another appraisal would advance the negotiations. I accept that Mr. Hubley told the plaintiff that if she felt she was not being treated fairly, she could take the matter to court. I find that Mr. Hubley later discussed with the plaintiff Mr. Harder’s memorandum of March 30, 2001, in which he confirmed that Mr. Newton and Mr. Brewer were not keen on having a third appraisal.

[547] Neither Mr. Barbour nor Mr. Schultz provided opinion evidence on the standard of practice expected of a chartered accountant in these circumstances.

[548] In my view, Mr. Hubley had no obligation in his supportive role to do more than raise the option of another appraisal with the plaintiff, and let her decide whether she wanted to pursue it. The plaintiff knew that a higher appraisal would increase her share value, and that Mr. Harder had obtained a quote on the likely cost from another appraiser. It was left open for her to ask Mr. Hubley to make further inquiries if she wished to pursue this.

[549] An examination of the entirety of the plaintiff’s conversations with her advisors about a third appraisal satisfies me that she decided against that course because Mr. Newton was opposed to it, and she did not want to upset him, or delay or derail the prospect of a settlement by putting forward a new and higher value for her shares. In my view, that finding is supported by the fact that in April the plaintiff complained to Mr. Hubley that Mr. Harder’s valuation was too high and that she was concerned that she would not be able to settle with Mr. Newton because of that.

[550] I conclude there is no basis for a finding of liability against Mr. Hubley on this ground.

3) Providing erroneous advice about spousal support

[551] The plaintiff says that she did not pursue a claim for spousal support, or discuss it with Mr. Marzban, because Mr. Hubley told her that she was not entitled to it due to her age. She also alleges that during the negotiations Mr. Hubley conceded her claim for spousal support in order to reach a settlement. I choose to deal with both issues in the present context for reasons of convenience.

[552] If Mr. Hubley gave the plaintiff advice about support, he would clearly be in breach of the standard of care of a reasonable accountant. Advice with respect to spousal support lies within the province of the legal advisor.

[553] Mr. Hubley denied that the conversation alleged by the plaintiff took place. He said that he did not give her any advice on spousal support, and told her to deal with her lawyers on this issue. He acknowledged that at one point he did have a general conversation about support with her, and mentioned that one of his partners had been through a divorce and did not pay spousal support. He then directed her to deal with her lawyer on the issue of support.

[554] The plaintiff denied that conversation took place.

[555] Contrary to the plaintiff’s evidence, I find it clear that spousal support remained a live issue, properly in the hands of her legal advisors, throughout her matrimonial dispute, and that she knew this to be so. From the outset, Mr. Newton was firm that he would not pay support. I find that Mr. Lobay advised the plaintiff of her entitlement to spousal support, particularly at the time she signed the postponement of support. I find that both he and Mr. Marzban advised her that her right to support could only be determined once the division of assets was known. The issue of support was therefore put to one side until the assets had been dealt with. Mr. Marzban included a claim for support in the plaintiff’s counterclaim.

[556] I find that on April 20, 2001 the plaintiff made a note recording a query about alimony directed to Mr. Marzban, and on June 25, 2001 she made a note at a meeting with Mr. Hubley indicating her intention to contact Mr. Marzban about support. I am satisfied that these notes clearly show that she was aware that her claim for spousal support remained outstanding.

[557] There is nothing in Mr. Hubley’s evidence or his extensive record of the settlement negotiations to suggest that he and Mr. Brewer dealt with spousal support during their negotiations. The agreement they reached in August 2001 contained no provision with respect to support. The mutual release of spousal support appeared later, in the draft agreement prepared by Mr. English, and Mr. Marzban raised it with the plaintiff at their meeting on October 2, 2001.

[558] I conclude that the plaintiff has failed to establish that Mr. Hubley took any action that limited her entitlement to spousal support or affected her decision not to pursue it.

Negligent advice and representation during the negotiation of the settlement

1) Undertaking the negotiation without proper qualifications

[559] I accept Mr. Hubley’s evidence that on April 23, 2001 the plaintiff instructed him to undertake the negotiation of her interest in the ABG because she was concerned that Mr. Harder and Mr. Brewer were too confrontational, and because she felt that Mr. Hubley understood the logging industry and was thus in a better position than Mr. Marzban to counter the issues being put forward by Mr. Brewer. I find that Mr. Hubley agreed to her request on the condition that it be restricted to a commercial negotiation. I accept his evidence that he told the plaintiff that he could not deal with her entitlement to personal assets or other legal issues that might arise in the negotiations, and that she must look to Mr. Marzban for advice on those matters.

[560] I find that, as an accountant, Mr. Hubley was qualified to undertake a commercial negotiation of the value of corporate shares. As mentioned previously, the rules of the ICABC permit accountants to act as advocates, as long as they do not practise law. Mr. Hubley had the appropriate background and experience, and was to conduct negotiations with Mr. Brewer, who was also an accountant. He was familiar with the parties and the history of their dispute, and had their trust.

[561] The plaintiff argues, however, that Mr. Hubley should not have undertaken this negotiation as the matrimonial setting introduced issues beyond his commercial expertise that he was not qualified to assess, and on which he could not provide proper advice. She says that his inadequate and erroneous advice during the negotiations led her to accept the settlement instead of proceeding to trial, where she would have obtained a better result.

[562] Mr. Barbour and Mr. Schultz agreed that accountants may negotiate commercial matters, but both warned that in such situations the distinction between legal and financial advice is not always clear. There is inevitable overlap.

[563] Mr. Barbour accordingly offered the opinion that a chartered accountant should not conduct a negotiation in a matrimonial context due to the risk that lack of familiarity with matrimonial law will lead him or her to misjudge the issues, and provide erroneous advice.

[564] Mr. Shultz, on the other hand, said that an accountant in these circumstances may offer valuable assistance to counsel, but to meet the standard of practice and avoid the acknowledged risk described by Mr. Barbour, the accountant should ensure that the client has engaged a lawyer from the outset. He of she should also make it clear to the client, ideally in writing, that the final advice on all matters respecting her rights, obligations, and potential trial outcomes must come from that legal advisor.

[565] I give Mr. Shultz’s evidence greater weight for the reasons discussed earlier, and accept his view of the standard of practice. Did Mr. Hubley meet that standard?

[566] I find that throughout his dealings with the plaintiff, Mr. Hubley ensured that she had legal representation and advice. She was initially represented by Mr. Lobay. When she wished to change counsel, Mr. Hubley helped her find and retain Mr. Marzban, an expert in the field of matrimonial law. He also consulted periodically with Mr. Voith on the plaintiff’s instructions. In deciding whether to accept the settlement, the plaintiff received advice from both Mr. Marzban and Mr. English, who had also been retained by Mr. Hubley.

[567] I find that Mr. Marzban knew that the plaintiff had instructed Mr. Hubley to negotiate on her behalf, and that he condoned this. I am satisfied, however, that Mr. Marzban did not relinquish his role as the plaintiff’s legal advisor during the negotiations, a finding that I discuss in more detail later in these Reasons. I am satisfied that the plaintiff understood the distinctive roles of her advisors, and that she knew that she must deal with Mr. Marzban on legal issues. I accept that Mr. Hubley reinforced that during the negotiations, advising her to consult with Mr. Marzban on legal matters that arose, and that he believed that she was doing so. I find that Mr. Hubley also remained in contact with Mr. Marzban periodically during the negotiations to report on their status and obtain his advice.

[568] Finally, it is clear that all parties understood that any settlement reached through the efforts of Mr. Hubley and Mr. Brewer would be the subject of review and advice from Mr. Marzban and Mr. Mortimer before it was finalized. While Mr. Hubley did not put this in writing as suggested by Mr. Schultz, I view that as a matter of prudence for his own protection, rather than a breach of the standard of care.

[569] I accordingly conclude that Mr. Hubley met the standard of care of a reasonable accountant by ensuring that the plaintiff had appropriate legal representation when he undertook the negotiation of her interest in the ABG. In making that finding, I appreciate that the negotiation later expanded to include the parties’ personal assets at the request of Mr. Brewer, and that these lay outside the ambit of a commercial negotiation. However, as set out at paragraph [291] of these Reasons, the disposition of these assets was never controversial nor detrimental to the plaintiff. As well, Mr. Hubley advised her that she must seek advice from Mr. Marzban on those issues, and understood the plaintiff was doing so. The plaintiff agreed that Mr. Hubley did not give her any advice about them. I accordingly find that the expansion of the negotiations to include those personal assets did not constitute a breach of the standard of care.

[570] The plaintiff’s remaining allegations with respect to the negotiations suggest that, although Mr. Hubley and the plaintiff had appropriate legal assistance available, Mr. Hubley nevertheless strayed into giving advice, or taking positions, inconsistent with matrimonial law during the negotiations. The plaintiff says that, had she been properly advised on these matters, she would not have settled but would have proceeded to trial.

[571] Before I turn to those allegations, I make the following findings with respect to the negotiations to provide a context for my consideration of them.

[572] It is common ground that the plaintiff chose her initial goal of $1.75 million for the negotiation, including her shareholder’s loan and bonus, without consulting Mr. Hubley. While I found her testimony about Mr. Harder’s memorandum of April 20, 2001 inconsistent and confused, I am satisfied that the valuation set out in that memorandum, and her earlier discussions with Mr. Hubley about it, were the basis for her choice of that figure.

[573] I find that although Mr. Hubley gave the plaintiff no advice on that choice, he viewed it as an appropriate goal. He had no reason to doubt the validity of Mr. Harder’s valuation. The sum of $1.75 million incorporated a share value toward the top end of Mr. Harder’s going concern calculation, which was the target that Mr. Hubley told the plaintiff he would like to get. I find that, from Mr. Hubley’s perspective, that figure represented the value of the ABG as a going concern. There is no foundation for the plaintiff’s view that Mr. Hubley relied on a liquidation value for the ABG in negotiating the settlement.

[574] I am satisfied that when Mr. Brewer took the position that personal assets must be a part of the negotiation as well, the plaintiff revised her goal to $2 million on her own initiative, and instructed Mr. Hubley to try to obtain that number. He gave her no advice on the reasonableness of that figure, and assumed she was receiving advice from Mr. Marzban on her entitlement to those assets.

[575] I find that Mr. Hubley approached the negotiations from the perspective of achieving the plaintiff’s global target, rather than using an item by item approach. I am satisfied that he negotiated in a principled and methodical manner. I accept that the negotiations were difficult, and at times appeared destined for failure. While I have not heard Mr. Newton’s or Mr. Brewer’s account of the negotiations, on the available evidence I am satisfied that Mr. Hubley was firm and creative in his dealings with them. I reject the plaintiff’s suggestion that Mr. Hubley was intimidated by Mr. Newton. While Mr. Harder testified about a comment Mr. Hubley made to this effect, I found Mr. Hubley credible in denying that. Moreover, his tenacity during the negotiations does not support such a conclusion.

[576] I find that Mr. Hubley had lengthy and detailed discussions with the plaintiff throughout the negotiations, and kept her fully advised of developments. I am satisfied that any concessions he made on her behalf were made with her knowledge and consent in an attempt to achieve her goal. It is difficult to understand the plaintiff’s inability to recall these extensive discussions.

[577] Mr. Hubley’s negotiation resulted in a settlement that valued the plaintiff’s interest in the ABG at $1.6 million, $150,000 less than her target, and $400,000 more than Mr. Newton’s last offer made at the end of March 2001. The global settlement amount was $1,771,000. Approximately 80% of the unpaid balance was secured.

[578] I turn to the remaining allegations concerning the negotiations.

2) Erroneous advice with respect to tax issues during the negotiations

[579] The plaintiff alleges that Mr. Hubley’s ignorance of matrimonial law led him to make two significant and unwarranted concessions during the negotiations to accommodate Mr. Newton’s wish to minimize his future tax liabilities in the event he sold the ABG. The first was an agreement that the plaintiff would apply her capital gains exemption entitlement of $420,000 to the share transfer price to increase Mr. Newton’s adjusted cost base of the ABG shares. The second was a deduction of $220,000 from the share price, representing 25% of the potential future capital gain of $880,000 remaining after the taxable transfer of $420,000. This was intended to compensate Mr. Newton for his potential tax burden if he sold the shares for $880,000 in the future.

[580] The plaintiff says that this was contrary to the treatment of tax issues in matrimonial law, and represented a loss of $320,000 to her. She argues that decisions such as Tearle, set out at paragraph [520] of these Reasons, make it clear that a court dealing with the division of assets in a matrimonial matter will only order a full deduction of tax liabilities arising from the future sale of an asset if the sale is imminent and foreseeable. She says that Mr. Newton had no imminent plan to sell the shares, and a court would not have ordered a deduction of $220,000 from the purchase price. Nor would it have required her to give up her capital gains exemption. Had she known this, she would have rejected the settlement and proceeded to trial.

[581] Mr. Barbour and Mr. Shultz agreed that an accountant giving advice in a matrimonial dispute should tell the client that there should be no deduction of latent personal income taxes that reflect an uncertain future transaction in determining the value of shares as a family asset.

[582] However, I find this allegation misconceives the context in which these tax concessions took place. Mr. Hubley was conducting a commercial negotiation, aimed at obtaining a global amount. Mr. Brewer made it clear from the outset that taxes were a significant issue for Mr. Newton, as he felt he was picking up all of the tax liability on the transaction, and fairness required some concession. I am satisfied that this position appeared entrenched, and that Mr. Hubley had a reasonable belief that a concession on taxes was essential if a settlement was to be achieved.

[583] While unfamiliar with latent income tax considerations in matrimonial law, Mr. Hubley knew that the plaintiff was not obliged to make these concessions in a commercial context. As an accountant, he was aware that under s. 73 of the Income Tax Act the plaintiff could transfer her shares on a tax-deferred basis at original cost, and did not have to give up her capital gains exemption. It was also clear that she did not have to agree to a deduction of $220,000 from the share price. She could hold firm on these points but, if she did, it appeared unlikely that Mr. Newton would agree to a settlement.

[584] I am satisfied that Mr. Hubley fully discussed these matters with the plaintiff, and that she agreed to make the tax concessions in order to achieve a settlement. The substance of their meetings about these concessions is set out in Mr. Hubley’s notes.

[585] The tax concessions thus became one of many things adjusted in the course of the negotiations in an attempt to achieve an ultimate resolution as close as possible to the plaintiff’s goal. In these circumstances, it is difficult to understand what role there was for advice on how the courts would treat tax issues in the division of family assets. The plaintiff is correct that the concessions were not necessary, but I find that she knew this, and chose to make them anyway in order to reach a settlement.

[586] I find that there is no basis for a finding of liability against Mr. Hubley on this ground. It was ultimately for Mr. Marzban, as the plaintiff’s legal advisor, to address these tax concessions in the matrimonial context when he provided advice with respect to the final settlement.

3) Failure to investigate Westwood

[587] The plaintiff says that Mr. Hubley failed to adequately investigate Westwood prior to the settlement. She says that had he done so, they would have discovered that Mr. Newton was earning significant amounts through Westwood by misappropriating corporate opportunities from the ABG, and she would not have agreed to a settlement excluding Westwood. Instead, she would have proceeded to trial, taking the position that Westwood was a family asset.

[588] Both Mr. Barbour and Mr. Shultz agreed that the determination of what is a family asset, and related advice, are matters for legal counsel in a matrimonial dispute. However, Mr. Barbour takes the view that an accountant engaged to assist in a family matter should have sufficient investigative and forensic accounting experience to be aware of the possibility that a spouse may not disclose all assets, and that Westwood might be a family asset. He says that such an accountant could also provide assistance to counsel in examining the business of Westwood and its relationship to the ABG, and in suggesting financial information that should be obtained to investigate the nature and income of Westwood.

[589] I find that there was a clear and appropriate division of roles between Mr. Hubley and Mr. Marzban with respect to Westwood, in that Mr. Hubley sought advice from and provided information to Mr. Marzban when Westwood became a concern, but left it to Mr. Marzban, as legal counsel, to decide what investigative steps should be taken.

[590] I accept Mr. Hubley’s evidence that when he became aware of Westwood, he spoke to Mr. Marzban, who told him that following a particular date after separation, the parties were on their own to do their own thing. In the context of the negotiations, Mr. Brewer was adamant that Mr. Newton would not accept a settlement that included Westwood. I find that Mr. Hubley accepted this and advised the plaintiff accordingly, based on the information that Mr. Marzban had given him. Mr. Hubley remained concerned that Westwood might reduce the ABG’s financial strength, and thus endanger the security of future payments to the plaintiff under a settlement in order to speed payment. He therefore attempted to negotiate the inclusion of Westwood’s cash flow in that part of the plaintiff’s monthly payments related to cubic meters logged. However, he was unsuccessful in this.

[591] When the plaintiff clandestinely obtained documents from the ABG offices about Westwood in April and July, 2001, Mr. Hubley reviewed them and passed them on to Mr. Marzban. Mr. Shultz’s opinion was clear that informational requirements lie entirely in the hands of the lawyer, who has the legal skills to identify the importance of such documents, and the procedural means of demanding and obtaining them. I find that Mr. Hubley properly concluded that the plaintiff was working with Mr. Marzban with respect to obtaining information about Westwood.

[592] I find no breach of the standard of care by Mr. Hubley with respect to Westwood. He was aware of the potential that Westwood could subvert the plaintiff’s interests. He passed on all information about Westwood to Mr. Marzban, and sought his advice about it. The fact that Westwood was excluded from the settlement negotiated by Mr. Hubley remained an issue for the plaintiff to discuss with Mr. Marzban prior to the finalization of that settlement.

4) Failure to advise the plaintiff to obtain documents from third parties

[593] The plaintiff alleges that Mr. Hubley failed to advise her of the benefits of obtaining documents from third parties such as HSBC, GEC, American Appraisal, Ritchie Bros., J.S. Jones, Westwood and the RBC for the purpose of assessing the value of the capital assets of the ABG, and her interest in Westwood.

[594] Mr. Shultz’s opinion, set out in the last section, applies here as well. Informational requirements are the province of the lawyer. In my view, Mr. Hubley’s only obligation with respect to obtaining documents was to report to Mr. Marzban if he became aware that relevant documents existed in the hands of a third party, or were being withheld by Mr. Newton or Mr. Brewer. I find that he did so in the case of Westwood and that no other circumstances arose during the negotiations that demanded action by him.

[595] I find no breach of the standard of care by Mr. Hubley with respect to this allegation.

5) Failure to advise the plaintiff as to the appropriate valuation date and update financial information

[596] The plaintiff is critical of Mr. Hubley for failing to advise her to obtain updated financial and appraisal information as the negotiations stretched to almost a year from the valuation date of October 31, 2000. In particular, she argues that she lost the opportunity to claim 50% of the 2001 bonus declared by the ABG, noted to be $947,500 in the financial statements of October 31, 2001.

[597] In my view, this is not a reasonable criticism. The weight of the expert evidence indicates that the choice of the valuation date is for counsel. Mr. Hubley’s instructions were to negotiate a settlement based on Mr. Harder’s valuation. It was a difficult negotiation, but he achieved consistent progress toward the plaintiff’s stated goal. I am satisfied that moving the goalposts by advising the plaintiff to seek updated financial information was not reasonable from his perspective. Moreover, I find that the plaintiff was sufficiently familiar with the ABG and its practice of declaring annual bonuses to raise this matter herself had she wished to do so.

[598] I find no breach of the standard of care by Mr. Hubley with respect to this allegation.

6) Providing advice that led the plaintiff to settle her matrimonial claim instead of proceeding to trial

[599] I find that this allegation again misconceives Mr. Hubley’s role. He was negotiating a commercial matter with a specific goal chosen by the plaintiff. He freely conceded that he had no knowledge of what claims the plaintiff had under matrimonial law, how a court would assess them, and how her potential outcomes at trial would compare with the settlement he had negotiated on her behalf. He agreed that one should know what things are worth before one gives them up, and that one would need to know the potential outcome at trial to judge the merit of the settlement. He correctly believed, however, that Mr. Marzban would be the person who would advise the plaintiff on such matters.

[600] There is no evidence that Mr. Hubley gave the plaintiff advice as to whether she should accept the settlement or proceed to trial, or advice that could have reasonably affected that decision. I find that he told her repeatedly during the negotiations that she could go to trial if she was not happy with the way things were proceeding, and that she must speak to Mr. Marzban about that option. I am also satisfied that, at the conclusion of the negotiations, Mr. Hubley simply told the plaintiff that the result was the best he could obtain for her in the negotiations, and asked her to let him know if she agreed to it.

[601] I conclude that there is no basis for a finding of liability on this ground.

Conclusion

[602] I conclude that Mr. Hubley, Bestwick & Partners, and Gord Hubley Ltd. did not breach the standard of care that governed their professional services to the plaintiff. Accordingly, the action against them is dismissed.

The Allegations against Mr. Marzban

[603] The allegations against Mr. Marzban are set out in paragraphs 22 through 27 of the Statement of Claim. Particulars of the alleged breaches are set out in paragraph 27. There is some internal overlap among these allegations. I find it appropriate to deal with them under the following headings, which are cross-referenced to the appropriate paragraph in the Statement of Claim:

1) Failing to provide advice with respect to Mr. Newton’s breach of fiduciary obligations in relation to Westwood [para. 27(i)];

2) Allegations regarding steps taken and advice given related to financial disclosure from Mr. Newton and the ABG, including:

(a) failing to obtain a Form 89 Financial Statement from Mr. Newton [paras. 27(b) and (j)];

(b) failing to obtain a satisfactory List of Documents from Mr. Newton [para. 27(d)];

(d) failing to obtain documents from third parties, in particular, appraisers, financial institutions, and Westwood [paras. 27(e) and (j)];

3) Failing to conduct adequate inquiry and provide appropriate advice as to the basis for the valuation of the ABG including:

(a) failing to advise or investigate with respect to the large discrepancies in the appraisals of the assets of the ABG [para. 27 (Mr. Newton)]; and

(b) failing to advise and investigate as to whether the ABG was viable as a going concern [para. 27(j)];

4) Wrongly delegating his role as counsel in the settlement negotiations to Mr. Harder and Mr. Hubley [para. 27(g)];

5) Failing to advise the plaintiff of the risks of settling without taking the steps outlined above and failing to advise her on the fairness of the terms of the settlement [paras. 27(m) and (n)] including:

(a) failing to fully advise the plaintiff of her rights and obligations under matrimonial law, including spousal support and the scheme for division of family assets under the FRA [para. 27(a)]; and

(b) failing to provide appropriate advice as to valuation dates, and failing to obtain updated financial and appraisal information before settling [para. 27(l)]

(6) Failing to prepare for trial [para. 27(p)].

[604] That list omits three allegations. Paragraph 27(c) alleges that Mr. Marzban was negligent in obtaining a second s. 57 declaration. This was an oversight of no consequence and was not seriously pursued by the plaintiff at trial. Paragraph 27(k) alleges that Mr. Marzban failed to take steps to remove Mr. Brewer as Mr. Newton’s agent and advisor. The plaintiff conceded that she could not quantify the impact of Mr. Brewer’s presence on the events leading to her decision to settle. I accordingly conclude that there is no basis on which liability could attach to Mr. Marzban and I decline to consider this allegation further. Paragraph 27(o), which alleges that Mr. Marzban failed to advise the plaintiff about the implications of the consent order entered to conclude her action, is only relevant to mitigation, an issue I have not found it necessary to address.

The Law with respect to the standard of care

[605] In Millican v. Tiffin Holdings Ltd. (1964), 49 D.L.R. (2d) 216 at 219 (Alta. T.D.) [Millican], aff’d [1967] S.C.R. 183, Riley J. provided this often-cited list of a lawyer’s obligations:

(1) To be skilful and careful.

(2) To advise his client on all matters relevant to his retainer, so far as may be reasonably necessary.

(3) To protect the interests of his client.

(4) To carry out his instructions by all proper means.

(5) To consult with his client on all questions of doubt which do not fall within the express or implied discretion left to him.

(6) To keep his client informed to such an extent as may be reasonably necessary, according to the same criteria.

This passage has frequently been cited with approval in this province, see for example Zink v. Adrian, 2005 BCCA 93; Chaster v. LeBlanc, 2007 BCSC 1250; and Nichols, supra.

[606] Halfyard J. in Van Duzen v. Lecovin, 2004 BCSC 1333 at para. 36 set out the standard of care applicable to a reasonably competent family law practitioner:

Would a lawyer who possessed reasonable knowledge of family law, and who had reasonable ability to use that knowledge in the practice of family law litigation, have done what the defendant omitted to do, or have avoided doing what the defendant did do?

[607] Particularly relevant to this case are a lawyer’s duty to inform a client on all relevant matters, and to warn of risks that accompany a proposed course of action. The former was described by Southin J., as she then was, in Giradet v. Crease & Co. (1987), 11 B.C.L.R. (2d) 361 at 370 (S.C.):

In my view, it is part of the duty of a solicitor not only to give good advice but also to make his reasons clear to the client. That does not mean writing the client page after page of legal jargon which, to most clients, is unintelligible. But a client has a right to know why. How else can she make an informed judgment on the matter at hand?

[608] The duty to warn was discussed by Thackray J., as he then was, in Graybriar Investments Ltd. v. Davis & Co. (1990), 46 B.C.L.R. (2d) 164 at 179-180 (S.C.). He adopted this statement of the duty to warn from Major v. Buchanan (1975), 9 O.R. (2d) 491, 61 D.L.R. (3d) 46 at 69 (S.C.):

… a solicitor has the duty of warning a client of the risk involved in a course of action, contemplated by the client or by his solicitor on his behalf, and of exercising reasonable care and skill in advising him. If he fails to warn the client of the risk involved in the course of action and it appears probable that the client would not have taken the risk if he had been so warned, the solicitor will be liable.

[609] The extent of these duties varies with the sophistication of the client: Ormindale Holdings Ltd. v. Ray, Wolfe, Connell, Lightbody & Reynolds (1982), 36 B.C.L.R. 378 at 389 (C.A.).

The expert evidence with respect to the standard of care

[610] The parties led evidence from two experts in matrimonial law, David W. Buchanan, Q.C., and F. Ean Maxwell, Q.C. Both are senior practitioners with over 35 years at the bar, and have extensive experience in family law. Both provided credible and helpful evidence as to the standard of practice of matrimonial lawyers. Both knew Mr. Marzban, but I found nothing in their testimony to suggest that this affected their objectivity.

[611] Mr. Buchanan’s evidence was tempered somewhat by the fact that since the early 1990s he has expanded his practice beyond family law, and it now occupies only 25 to 30% of his time. Mr. Maxwell, by comparison, remains fully engaged in the family law field.

[612] The usefulness of Mr. Maxwell’s evidence was limited somewhat by the fact that some of the assumed facts on which he relied do not accord with my findings of fact. He assumed that Mr. Hubley gave the plaintiff legal advice with respect to both Westwood and spousal support. He viewed Mr. Hubley, and perhaps Mr. Harder, as usurping Mr. Marzban’s role. He assumed that, because Mr. Marzban was not directly involved in the settlement negotiations, his retainer became limited to a role that was close to simply giving independent legal advice on the settlement. My findings of fact are at variance with each of these assumptions.

[613] Despite those observations, the testimony of both experts as to the practice of a reasonable family lawyer was consistent in many respects. My findings as to the standard of care applicable to Mr. Marzban in the balance of this section are based primarily on their evidence.

Mr. Marzban’s Role

[614] To provide context for my analysis of the allegations against Mr. Marzban, I make the following findings of fact with respect to his role in this matter.

[615] Mr. Marzban is an acknowledged expert in family law. He conceded during argument that, as a result, a higher standard of care attaches to his actions: Ristimaki v. Cooper, [2006] O.J. No. 1559 at para. 59(b) (C.A.); Bockhold v. Lawson Lundell Lawson & McIntosh (1999), 10 C.B.R. (4th) 90 at para. 58 (B.C.S.C.).

[616] I find that at his first meeting with the plaintiff on October 25, 2000, Mr. Marzban verbally entered into a general retainer to resolve her matrimonial dispute. I am satisfied that this meeting was devoted primarily to gathering information about the parties and their dispute. As well, Mr. Marzban, the plaintiff, and Mr. Hubley agreed that Mr. Marzban could communicate with the plaintiff through Mr. Hubley for reasons of convenience. The plaintiff gave Mr. Marzban instructions to obtain a better offer from Mr. Newton, and if none was forthcoming to proceed with financial disclosure. I find that the history of the dispute and the plaintiff’s instructions to Mr. Marzban gave him a reasonable basis on which to infer that she preferred to attempt to settle her claim rather than proceed to trial.

[617] I find that by the end of the meeting Mr. Marzban had made the following assessment of the matter. He felt that the case was relatively simple. It involved routine matrimonial issues that he had dealt with many times. Equal division of the family assets was likely. The ABG was the linchpin and valuing it was key to any resolution. The value of the rest of the family assets was relatively small. Entitlement to spousal support could not be determined until the outcome of the division of family assets was known, and the factors in s. 15.2 of the Divorce Act could be examined in that context. From the plaintiff’s perspective, the only outcome that made sense was to be bought out of the ABG by Mr. Newton.

[618] I find that to have been a reasonable characterization of the plaintiff’s claim as it presented itself in October 2000.

[619] Mr. Marzban took preliminary steps to advance the plaintiff’s claim by filing pleadings and sending demands to Mr. Mortimer for a Form 89 Financial Statement and a List of Documents from Mr. Newton. Thereafter, however, he did not follow what he referred to as a “litigation model” as he believed that the plaintiff preferred to pursue a settlement at that stage. Instead, he chose to retain Mr. Harder to value the ABG and delegated the responsibility for financial disclosure for the purpose of the valuation to Mr. Harder.

[620] Little could be done by the plaintiff or her advisors to move her claim forward before Mr. Harder completed his valuation, and Mr. Marzban had limited dealings with her from December 2000 until April 2001. He planned to chart a course of future action with the plaintiff once the valuation was received, and anticipated obtaining her instructions to try to negotiate a settlement and, if no agreement could be reached, to take the matter to trial.

[621] Within days of receiving Mr. Harder’s memorandum of April 20, 2001, however, the plaintiff instructed Mr. Hubley to attempt to negotiate a settlement of her interest in the ABG. Mr. Marzban did not meet with the plaintiff to discuss Mr. Harder’s valuation, or her choice of Mr. Hubley as her negotiator, before the negotiations commenced.

[622] While the plaintiff’s instructions to Mr. Hubley required Mr. Marzban to step back from the negotiations, I find that they did not limit the other aspects of his retainer as her legal counsel, charged with seeing her matrimonial dispute through to its final resolution. I did not understand Mr. Marzban to be seriously arguing against that view. In any event, the law is clear that the onus rests with the lawyer to establish any limit on his retainer, and any ambiguity will be construed in favour of the client: ABN Amro Bank v. Gowling, Strathy and Henderson (1994), O.R. (3d) 779 at para. 18 (Gen. Div.).

[623] I find that Mr. Marzban has not established that his retainer was limited in any way except that he did not directly conduct the settlement negotiations. He remained the plaintiff’s legal advisor throughout the negotiations, provided advice as requested, and took steps in the legal proceeding as the plaintiff instructed. Moreover, it was clearly understood that any agreement negotiated by Mr. Hubley would be subject to Mr. Marzban’s review and advice before it was finalized.

[624] When Mr. Hubley and Mr. Brewer reached an agreement in August 2001, Mr. English, with Mr. Marzban’s concurrence, drafted the settlement agreement and the related security documents. Mr. Marzban reviewed these and met with the plaintiff and Mr. Hubley on October 2, 2001 to discuss them. He did not have extensive communications with the plaintiff after their first meeting, and so most of his advice to her was given at this final meeting. It therefore provides the focus for many of her allegations. At the end of that meeting, the plaintiff indicated that she would accept the settlement rather than proceed to trial.

[625] As a general observation, it has been difficult to make reliable findings about the communications between Mr. Marzban and the plaintiff, due in part to the unreliability of the plaintiff’s evidence, but also because Mr. Marzban has little recollection of them, and failed to document the advice he provided. He has no written record of the legal advice he provided during his retainer other than a letter setting out the advice required by s. 9 of the Divorce Act.

[626] I am aware that there is authority that, where there is a conflict between the versions of events given by the client and the lawyer, all other things being equal, the client’s version is to be preferred. However, in this case all other things are not equal as I have made adverse findings with respect to the plaintiff’s credibility. That proposition accordingly does not apply: Morton v. Harper Grey Easton (1995), 8 B.C.L.R. (3d) 53 at paras. 34-35 (S.C.). I therefore approach the task of determining what transpired between the plaintiff and Mr. Marzban on the traditional basis that the onus rests with the plaintiff to establish on a balance of probabilities that Mr. Marzban failed to provide advice and services that met the standard of care of a reasonably competent family lawyer.

[627] I turn to the individual allegations against Mr. Marzban.

Failing to provide advice with respect to Mr. Newton’s fiduciary obligations to the ABG arising from his activities with Westwood

[628] Westwood was the only controversial item in the identification and valuation of Mr. Newton’s personal assets. It emerged in April 2001, when the plaintiff and her advisors became aware that Mr. Newton had incorporated a new company, which ultimately became Westwood, to use as a vehicle to do what he described as a “management contract” for J.S. Jones, a logging company with which the ABG already had a Bill 13 contract.

[629] The plaintiff argues that the presence of Westwood raised three questions that required investigation. First, had Mr. Newton breached his fiduciary duty to the ABG by diverting opportunities to Westwood because of the matrimonial dispute and, if so, was it open to the plaintiff to consider oppression remedies or derivative proceedings on behalf of the ABG under ss. 270 and 271 of the Company Act, R.S.B.C. 1996, c. 62? Second, given the similarity in the nature of the businesses, was it likely that Westwood was improperly using assets of the ABG, and could therefore be characterized as a family asset in which the plaintiff had an interest? Third, was Mr. Newton earning an income stream from Westwood that should have been considered in assessing the plaintiff’s right to spousal support?

[630] The second and third questions raise issues of disclosure and are dealt with in the next section of these Reasons. With respect to the first question, the plaintiff says that Mr. Marzban breached the standard of care by failing to advise her that, since Mr. Newton was a director of the ABG, his activities with Westwood may be in breach of his fiduciary duty to the ABG, and corporate remedies could be pursued by her as a director and/or shareholder of the ABG or on behalf of the ABG.

The standard of care

[631] Mr. Maxwell testified that a prudent solicitor would advise a client on “issues of fiduciary duty” in these circumstances, but it was his view that the plaintiff would not get leave to commence a derivative action. Any action would have to be brought by the ABG. He also offered the view, however, that he knew of no law that someone in Mr. Newton’s situation had to offer a personal service through a specific corporation. Unless he was bound by some agreement to work solely for the ABG, Mr. Maxwell said that Mr. Newton was free to log where he wished.

[632] Mr. Buchanan set the standard somewhat lower. It was his view that matrimonial lawyers may not be fully familiar with the law on fiduciary duties of officers and directors of a company. He said that if circumstances demonstrated that the new company was using employees and assets of the old, however, that he would expect a family lawyer to know enough to advise the client about a “breach of fiduciary duty”.

[633] Neither expert provided details as to what advice would be given by a reasonable family lawyer with respect to the perceived breach and what would be a proper course of action. Both agreed, however, that circumstances such as those presented by Westwood should produce a high degree of suspicion, and a reasonably competent family lawyer would recognize the need to investigate the potential depletion of the ABG by Westwood.

[634] Given the divergent and somewhat limited opinions of Mr. Buchanan and Mr. Maxwell with respect to the standard of practice and advice expected of a family lawyer regarding fiduciary duties and corporate remedies, I conclude that the primary requirement at an early stage of suspicion is to recognize the importance of investigation. If this reveals facts that may support a breach of fiduciary duty, further advice may be given by the family lawyer, or assistance may be sought from a lawyer expert more familiar with corporate law.

Did Mr. Marzban breach the standard of care?

[635] Mr. Marzban conceded that he did not give the plaintiff advice about Mr. Newton’s fiduciary obligations. He did, however, recognize the importance of investigating Westwood. He said that he approached that investigation from the perspective of whether it was a family asset, and whether it produced income that would be relevant to the plaintiff’s claim for support. It was his view that s. 65 of the F.R.A. gives the courts sufficient discretion to provide a remedy to the plaintiff by way of reapportionment of family assets if Mr. Newton was using Westwood to devalue the ABG.

[636] I find that this satisfied the standard of care when Westwood emerged as a concern. In my view, it was reasonable at this stage for Mr. Marzban, as a family lawyer, to approach the issue from the perspective of s. 65 of the F.R.A., and to undertake an investigation of Westwood. His steps in that regard are described in the next section.

Issues related to financial disclosure and the discovery process

[637] The plaintiff argues that Mr. Marzban failed to provide appropriate advice with respect to her rights to financial disclosure and discovery, and failed to obtain full financial disclosure with respect to the ABG and Mr. Newton, in particular, his interest in Westwood. First, with respect to the ABG, she complains that Mr. Marzban delegated the responsibility for obtaining financial disclosure to Mr. Harder without her knowledge or instructions. Second, with respect to Mr. Newton and Westwood, she says that Mr. Marzban should have obtained a Form 89 Financial Statement and a List of Documents, and conducted an examination for discovery of Mr. Newton. Third, she says that Mr. Marzban failed to obtain third party documents that would have shed more light on the financial picture of the ABG and Westwood.

The standard of care

[638] I find that the following principles, established by the evidence of Mr. Maxwell and Mr. Buchanan, represent the standard of care of a reasonable family lawyer with respect to obtaining financial disclosure.

[639] The lawyer will understand that obtaining financial disclosure is an essential step in providing proper advice in a matrimonial dispute; that it is his or her obligation to ensure that disclosure is obtained to a satisfactory level; and that there are a variety of tools to achieve disclosure. It is standard practice to issue demands for a Form 89 Financial Statement and for a List of Documents in matrimonial litigation. However, it is generally recognized that these do not guarantee full disclosure, and may be unreliable for a variety of reasons.

[640] Despite those general principles, the extent to which disclosure is obtained is variable. Which tools are selected will depend on the circumstances of the case. Some cases settle without full disclosure. The question of how far to pursue the discovery process of a litigation model is influenced by considerations such as cost, timing, and whether that model may jeopardize settlement efforts.

[641] A reasonably competent lawyer will ensure that a client is aware of his of her right to financial disclosure, and should consult with the client as to the general approach to be taken, insofar as the choice has repercussions for expenses or settlement negotiations. Beyond that, Mr. Maxwell and Mr. Buchanan did not say whether instructions are required for each step in the discovery process. In my view, they are not. The selection of the most appropriate discovery tool in a given case is a matter for the lawyer’s professional judgment.

[642] Before concluding a settlement, however, a reasonably competent lawyer must assess the extent of disclosure obtained, and discuss with the client whether it is necessary to proceed further with the discovery process before settling. Should the client give instructions to settle without satisfactory disclosure, the lawyer must warn the client of the risks of such a course of action. If the client insists on settling, prudence suggests a letter from the lawyer confirming the instructions to settle in the face of that warning would be wise.

[643] It is reasonable for a lawyer to retain a valuator to assist with financial disclosure regarding corporate assets, and to have that person obtain information directly from the company’s accountant. If the valuator has sufficient information to provide a valuation estimate, it is reasonable for the lawyer to infer that the valuator is satisfied that he has received sufficient financial disclosure for the valuation. However, that may not be the same as adequate financial disclosure for legal purposes. Thus, a lawyer cannot delegate disclosure to the valuator completely. He or she retains an overriding obligation to ensure that disclosure is adequate from a legal perspective before any settlement is reached, and to reintroduce legal tools if it is not.

Was Mr. Marzban in breach of the standard of care?

[644] I find that as of October 25, 2000 the plaintiff was aware of her right to financial disclosure based on her earlier dealings with Mr. Lobay. The key issue was the value of the ABG. The identity and value of the parties’ other assets were not controversial. It was clear that the plaintiff was hoping to settle her claim. I find that it was in this context that the plaintiff gave instructions to Mr. Marzban to proceed with financial disclosure if no reasonable offer was forthcoming from Mr. Newton.

[645] Mr. Marzban testified that he took the discovery process one step at a time, and kept his options open. He did not believe that a litigation model was the best way to go, given that the plaintiff wished to try to negotiate a settlement. As a result, he did not pursue the demands for a Form 89 Financial Statement or a List of Documents. Instead, he decided that the most efficient and effective means of obtaining financial information about the ABG was through Mr. Harder. Mr. Harder was a qualified valuator in whom Mr. Marzban had confidence. He knew from their earlier dealings that Mr. Harder would advise him if he encountered difficulty with disclosure, and Mr. Marzban could then take what legal steps were necessary.

[646] I find that Mr. Marzban’s delegation of financial disclosure regarding the ABG to Mr. Harder was a matter of professional judgment and a reasonable step that met the standard of care. While the plaintiff complains this was done without her knowledge and instructions, her affidavit sworn April 27, 2001 makes it clear that she was aware of what she describes as the “extensive disclosure” obtained by Mr. Harder.

[647] Mr. Marzban received no indication from Mr. Harder of any problems with financial disclosure. I accept that he was entitled to assume that financial disclosure of the ABG had been satisfactory from Mr. Harder’s perspective when he received the valuation estimate in Mr. Harder’s memo of April 20, 2001,

[648] I find, however, that before the plaintiff settled her claim, the standard of care required Mr. Marzban to ensure that Mr. Harder had obtained a sufficient level of financial disclosure with respect to the ABG from a legal perspective, or to warn the plaintiff that disclosure had been limited to Mr. Harder’s inquiries, and that legal avenues of discovery had not been pursued with respect to the ABG.

[649] Turning to the sufficiency of disclosure from Mr. Newton, as stated earlier, the only controversial item was Westwood, and whether it was a family asset, or provided an income stream for Mr. Newton that would strengthen the plaintiff’s claim for spousal support. The plaintiff says that Mr. Marzban should have taken steps to answer those questions by pursuing a Form 89 Financial Statement and a List of Documents, and by conducting an examination for discovery of Mr. Newton.

[650] I am satisfied that Mr. Marzban recognized the potential significance of Westwood to the plaintiff’s claim in April 2001 when he advised her to bring an application for documents related to it and another company incorporated by Mr. Newton. I find that this was a reasonable investigative step, as it approached Westwood directly, rather than through Mr. Newton, and it could be conveniently combined with another application the plaintiff wished to bring to obtain joint signing authority on the ABG cheques.

[651] Mr. Marzban prepared an affidavit for the plaintiff accordingly, but testified that he received instructions not to proceed with the application as settlement negotiations had resumed. He could not recall who had given him those instructions.

[652] The plaintiff denied providing those instructions. I do not find her denial credible. Her evidence on this point was internally inconsistent. The timing of these instructions coincided with the commencement of Mr. Hubley’s negotiations. It was the plaintiff, not Mr. Hubley, who dealt with Mr. Marzban with respect to the application. I accept Mr. Hubley’s evidence that, although he reviewed the affidavit with the plaintiff, he did not know what was done with it. I infer that the plaintiff gave Mr. Marzban these instructions because she had achieved her goal of using the legal process to get Mr. Newton back to the table, as described in Mr. Hubley’s e-mail to Mr. Harder of April 14, 2001, and she did not want to upset the prospect of a settlement by proceeding with the application.

[653] Mr. Maxwell testified that he assumed that a client who instructed a lawyer not to proceed with a motion in these circumstances would have been fully advised by the lawyer as to the options, issues, applicable law, and what might be obtained through the application.

[654] Neither Mr. Marzban nor the plaintiff testified to the advice he gave her in the course of preparing this motion, or in accepting her instructions not to proceed with it. Nor does Mr. Marzban have any notes of such advice. His thought process about the application is set out at paragraph [184] of these Reasons. However, there is no evidence that he shared those views with the plaintiff. I accept Mr. Marzban’s evidence that he told the plaintiff that they did not know what Mr. Newton was doing in terms of his income, and that this would be a factor if she proceeded. I also accept Mr. Hubley’s evidence that Mr. Marzban advised him that following a particular date after the separation, the parties could do their own thing, and that Mr. Hubley told the plaintiff this. The timing of these discussions is unclear.

[655] In July, the plaintiff obtained further documents with respect to Westwood. These indicated that Westwood was in substantial arrears to a subcontractor doing heli-logging for it at Pitt Lake under its arrangement with J.S. Jones, and that J.S. Jones was providing funds to cover the outstanding account. The plaintiff brought these documents to Mr. Hubley, who sent them on to Mr. Marzban. Mr. Hubley’s and Mr. Marzban’s time records show a lengthy telephone call between them and the plaintiff that day. There is no evidence as to what was discussed during that call, or whether any advice or instructions were given.

[656] To summarize, I find that Westwood had potential significance to both the plaintiff’s claim for spousal support and to the division of family assets. I am satisfied that Mr. Marzban was aware of this, and that he attempted to bring an application to obtain documents with respect to Westwood, but was instructed not to proceed with this by the plaintiff because negotiations had commenced. I find that in the face of those instructions, Mr. Marzban was reasonably entitled to assume that the plaintiff did not wish to follow a litigation model, and that further steps to achieve financial disclosure could be held in abeyance until the outcome of the negotiations was known. Nevertheless, despite the plaintiff’s apparent ambivalence toward investigating Westwood, I am satisfied that the standard of care clearly required Mr. Marzban to warn her before a settlement was concluded of the risk of settling without knowing more about it.

[657] The plaintiff complains that Mr. Marzban also breached the standard of care with respect to financial disclosure by failing to obtain documents from third parties such as American Appraisal Canada, Inc., Ritchie Bros., the financial institutions that dealt with the ABG refinancing in 2000, and J.S. Jones. She says that these would have shed more light on the financial circumstances of the ABG and Westwood.

[658] Mr. Buchanan testified to the potential value of obtaining financing applications from financial institutions, as they may contain comments enhancing the value of the ABG which could serve to counter attempts by Mr. Newton or Mr. Brewer to minimize its value.

[659] Mr. Marzban testified that he was aware of the recent refinancing, and he anticipated that the related documents would contain positive statements made by Mr. Newton in that process. It was his view, however, that such documents would be of little assistance in convincing the opposing party of the company’s value during the settlement negotiations.

[660] I agree. While these statements might have possible value in cross-examination if the matter proceeded to trial, it would have been premature and costly to seek them while exploring settlement. I find it reasonable that a family lawyer would not embark on applications to obtain documents from third parties while serious settlement negotiations are proceeding. The decision not to do so, however, would again attract the duty to fully advise and warn the client before she settles her claim that there may be useful information that has not been obtained.

[661] In summary, I have found that Mr. Marzban did not breach the standard of care by failing to pursue avenues of financial disclosure in a context where serious settlement negotiations were proceeding. However, his decision not to do so clearly imposed on him a duty to advise the plaintiff before she settled that he had not obtained full financial disclosure in accordance with her instructions, and to warn her of the risks of settling without it. I defer my consideration of whether that duty was discharged by Mr. Marzban to my discussion of the advice he provided at the meeting of October 2, 2001 later in these Reasons.

Failing to conduct adequate inquiry and provide appropriate advice as to the basis for the valuation of the ABG

[662] The plaintiff argues that once Mr. Harder delivered his valuation estimate on April 20, 2001, Mr. Marzban should have met with him to review it. In particular, he should have explored with Mr. Harder the large discrepancy between the AA Appraisal and the Ritchie Bros. Appraisal, and ensured that the ABG was valued as a going concern. She says that Mr. Marzban should then have met with her to fully inform her of her options with respect to a third appraisal before the negotiations commenced.

[663] These allegations raise the difficult issue of the extent to which a lawyer may rely on the expertise of a specialist engaged to assist him or her. On the one hand, the very reason for retaining such experts is the lawyer’s limited knowledge in the expert’s field. On the other hand, the lawyer remains the expert who tests the specialist’s opinion and assesses its usefulness in the legal context of the client’s claim.

The Standard of Care

[664] The evidence of Mr. Maxwell and Mr. Buchanan satisfies me that the standard of care permits a matrimonial lawyer to rely heavily on the expertise of a valuator in assessing the value of corporate assets. The lawyer, however, retains a duty to supervise the valuator, and to understand and test the valuation. This should include ensuring that the factual assumptions and the valuation premises on which it is based accurately reflect the actual circumstances of the case. As set out in the last section, the lawyer also has a duty to ensure that the financial disclosure obtained by the valuator is sufficient from a legal perspective. Such knowledge is essential to judging the extent to which the valuation advances the client’s claim, and whether further steps are required. It is also necessary to permit the lawyer to provide proper advice to the client.

[665] That general standard of care becomes better defined on the facts of each case. Based on the evidence of Mr. Buchanan and Mr. Maxwell, I am satisfied that communicating with the valuator takes on an enhanced significance where the lawyer knows that there is a significant discrepancy between appraisals of a significant asset; that the valuator has chosen to rely on the lower value but has also raised the option of another appraisal; and that the opposing party is resistant to another appraisal. A reasonably competent family lawyer presented with this situation will discuss these circumstances with the valuator in order to properly advise the client of the options, particularly in the context of putting forward the best position in negotiations or at trial. I am satisfied that such discussions with the valuator should reasonably cover the reasons for the reliance on the lower appraisal, information pertaining to a third appraisal, and details of the position of the opposing party.

[666] I find that the decision of whether to obtain another appraisal ultimately rests with the client. A reasonably competent lawyer will therefore meet with the client to discuss the valuator’s views, and advise of the options. If the lawyer is aware that the opposing party will not welcome another appraisal, the discussions will include an assessment of the risk that such a step may disrupt settlement negotiations and push the matter to litigation.

Did Mr. Marzban breach the standard of care?

[667] Mr. Marzban testified that he was in touch with Mr. Harder and Mr. Hubley periodically during the valuation, and he was aware that the ABG equipment value was central to the value of the ABG. He also knew that Mr. Newton had rejected an earlier financing appraisal as the basis for the valuation, and that Mr. Harder and Mr. Brewer had agreed to get an independent appraisal from Ritchie Bros. He was aware that there was a substantial difference of millions of dollars between the two appraisals, and that Mr. Harder had told the plaintiff that if she was not satisfied with the Ritchie Bros. equipment value, she could get another appraisal. He understood that Mr. Newton and Mr. Brewer were not interested in that prospect.

[668] Mr. Marzban testified that he believed that he discussed Mr. Harder’s valuation with Mr. Hubley. However, he could not recall the details of those discussions. He agreed that he did not meet with Mr. Harder or with the plaintiff to discuss the valuation before the settlement negotiations commenced. Nor did he undertake any inquiry into the disparate appraisal values, or the possibility of obtaining a third appraisal. Mr. Marzban said that he did not take these steps because he saw the equipment value as a valuation issue, and he relied on Mr. Harder’s expertise in basing the valuation on the Ritchie Bros. Appraisal. He was concerned that if he suggested another appraiser, this would be seen as interfering with the independence of Mr. Harder’s valuation.

[669] Mr. Marzban also testified, however, that he knew that the die was not cast with the Ritchie Bros. Appraisal. He said that if the matter did not settle and they went to court, there would be plenty of time to obtain another appraisal if Mr. Harder believed that this was warranted, or get another valuation altogether. Mr. Marzban indicated that he might then obtain copies of the appraisals himself and review them. I find it difficult to understand the wisdom of postponing these steps when the equipment value was as important to the plaintiff’s position in the settlement negotiations as it would be at a trial.

[670] It was common ground that the valuation of the ABG was the most significant aspect of the plaintiff’s claim. Moving forward in her matrimonial dispute had been held in abeyance until Mr. Harder’s valuation was received. I find that Mr. Marzban was in breach of the standard of care in failing to meet with Mr. Harder to discuss his valuation, the facts and premises on which it was based, the discrepancy between the appraisals, the reasons for relying on the Ritchie Bros. Appraisal, and the option of obtaining another appraisal. As well, I find that his failure to meet with the plaintiff after the valuation and before the commencement of the settlement negotiations to discuss the valuation, its implications for the negotiations and the likely outcomes at a trial, and the option of another appraisal, was a further breach of the standard of care.

Wrongly delegating his role as counsel in the settlement negotiations to
Mr. Harder and Mr. Hubley

[671] The plaintiff claims that Mr. Marzban breached the standard of care by delegating his role as matrimonial counsel to advise on and directly handle settlement negotiations to Mr. Harder and Mr. Hubley.

[672] There is no basis for this allegation insofar as it concerns Mr. Harder. There is no evidence Mr. Marzban delegated any part of the negotiations to Mr. Harder, and I have earlier found that Mr. Harder did not negotiate on behalf of the plaintiff.

[673] With respect to Mr. Hubley, the plaintiff argues that Mr. Marzban should have conducted settlement negotiations himself, and instead wrongly delegated this activity to Mr. Hubley, without discussing the risks and repercussions of this course of action with her.

The standard of care

[674] Based on the evidence of Mr. Buchanan and Mr. Maxwell, I find that the negotiation of a matrimonial settlement is generally the province of the family lawyer. However, a client may choose to instruct another person, including an accountant, to negotiate on his or her behalf. If the client takes that course, a reasonably competent family lawyer has a duty to discuss that choice with the client, and advise him or her of the potential risks of a non-lawyer undertaking negotiations, as well as what other options are available. As well, the lawyer should ensure that a client who pursues negotiations with a non-lawyer has an understanding of his or her statutory entitlements under matrimonial law, the option of litigation, and the significance of a decision to settle.

[675] Where a client instructs a non-lawyer to negotiate a settlement, the lawyer’s retainer is implicitly limited by those instructions. A prudent lawyer should confirm this in writing.

[676] Where a family lawyer does not conduct negotiations, but retains a role in which he or she is to advise the client as to the reasonableness of any settlement reached, the lawyer must remain sufficiently involved in the negotiation process to provide appropriate advice at its conclusion.

Was Mr. Marzban in breach of the standard of care?

[677] I am satisfied that Mr. Marzban did not delegate the settlement negotiations to Mr. Hubley. Mr. Hubley undertook them because the plaintiff instructed him to. As a result, Mr. Marzban’s retainer was implicitly limited to the extent that he did not directly negotiate the settlement. While he did not confirm this limitation to his retainer in writing, I find that to be a matter of prudence rather than a breach of the standard of care, particularly since it arose from the plaintiff’s own instructions.

[678] I find that Mr. Hubley’s assumption of the role of the negotiator did not amount to a delegation to him of Mr. Marzban’s role as the plaintiff’s counsel. I have earlier found that Mr. Marzban remained engaged as the plaintiff’s legal advisor throughout the negotiations. He was available to perform legal services and provide legal advice to her and Mr. Hubley during the negotiations and, most importantly, with respect to any settlement reached. I find that the plaintiff understood this. She testified that she knew that she could consult Mr. Marzban about legal matters, and she provided him with instructions with respect to steps to be taken in the action. His continuing role as her legal advisor was reinforced by Mr. Hubley, who advised her to contact Mr. Marzban when legal issues arose, and who kept Mr. Marzban apprised of the status of the negotiations.

[679] There is no evidence that Mr. Marzban met with the plaintiff to discuss her choice of Mr. Hubley as the negotiator and its ramifications. It is clear that there was some communication between Mr. Marzban, Mr. Hubley and the plaintiff about this, however, as Mr. Marzban knew Mr. Hubley had undertaken the negotiations, and all were aware that any settlement reached would be subject to his review and advice. It is also evident that Mr. Marzban did consider whether Mr. Hubley’s role in the negotiations was to the plaintiff’s benefit. He was aware that the negotiation at the outset was limited to the commercial issue of the value of her interest in the ABG, and said that he saw Mr. Hubley’s involvement as a positive development, due to his accounting and tax knowledge. He also believed that negotiations between the accountants would be less positional than between the lawyers. Mr. Marzban said that the addition of the parties’ personal assets to the negotiation at a later stage did not concern him as entitlement to these was not controversial.

[680] I agree that late April 2001 would have been an opportune time for Mr. Marzban to meet with the plaintiff. The concurrence of the delivery of Mr. Harder’s valuation and her decision to have Mr. Hubley negotiate on her behalf made this a useful point at which to discuss not only these developments, but the parameters of her claim generally and the future course she wished to take. Nevertheless, I am not convinced that the fact that Mr. Marzban did not meet with her to discuss Mr. Hubley’s role in the negotiations was a breach of the standard of care, as I am satisfied that, in the circumstances I have described, the plaintiff faced little risk in having Mr. Hubley undertake the negotiations. Mr. Marzban’s continuing role as her counsel indicated that she would receive advice on her statutory entitlements, the option of litigation, and the significance of the decision to settle when he met to discuss any settlement with her. Moreover, the plaintiff was not bound to accept any settlement negotiated by Mr. Hubley.

Failure to fully advise and warn the plaintiff at the meeting on October 2, 2001

[681] On October 2, 2001, Mr. Marzban met with the plaintiff and Mr. Hubley in Nanaimo for almost two hours to discuss the settlement agreement that Mr. Hubley had negotiated and Mr. English had prepared. As noted above, this final meeting provided the main opportunity for him to advise the plaintiff with respect to her claim, the settlement, and her options.

[682] The plaintiff argues that Mr. Marzban’s advice was incomplete and did not meet the standard of care of a reasonably competent matrimonial lawyer. She provides a long list of inadequacies. She says that Mr. Marzban simply told her that she could do better or could do worse than the negotiated settlement if she went to court. He did not give her information as to the range of possible outcomes at trial in monetary terms, or discuss the costs of a trial. Nor did he explain the scheme of or her entitlements under the F.R.A. and the Divorce Act.

[683] She argues that he did not advise her that, if the case proceeded to trial, the court would not be committed to accepting Mr. Harder’s fair market value for the ABG, but could value the company on the basis of “fair value”, which might be higher. Nor did he suggest that the ABG’s financial information should be updated before settling, or raise whether she could claim an interest in the ABG’s 2001 profits, given that Mr. Harder’s valuation was based on financial information that was almost a year old.

[684] She also says that Mr. Marzban did not have sufficient information to advise her properly about spousal support, or whether Westwood was a family asset, or about its potential role in a claim for reapportionment or spousal support. Yet he failed to tell her that she could proceed with discovery on those issues, or warn her about the risks of settling her claim without doing so.

[685] Finally, she says that while Mr. Marzban reviewed the settlement terms with her, he did not discuss the concessions made by Mr. Hubley during the negotiations with respect to taxes, interest, the Start-up Loan, or Mr. Newton’s draws, in the context of what the likely outcome at trial might be on those issues.

The standard of care

[686] In assessing the adequacy of the advice given by Mr. Marzban at the October 2 meeting, I am guided by the law described earlier in these Reasons with respect to the clear duty of a lawyer to inform the client on all relevant matters, and to warn of the risks that may accompany a proposed course of action. The extent of these duties varies with the sophistication of the client.

[687] I make the following observations of the plaintiff in that regard. I find that although she was not a sophisticated businesswoman, she was familiar with the operations of the ABG and the logging industry due to her involvement in both since 1987. I am satisfied that, based on her earlier dealings with Mr. Lobay, she knew from an early stage of her matrimonial dispute what the parties’ assets were, that she was entitled to a half interest in them, and that she had a potential claim for spousal support. I find that the list she prepared for her first meeting with Mr. Lobay showed that she was also alive to more subtle issues, such as security and interest on the outstanding balance of any settlement reached. I find the plaintiff was not naïve about Mr. Newton’s wish to settle for as little as possible. I am satisfied that she was fully advised of the details of the concessions made on her behalf during the negotiations by Mr. Hubley. I also find that the plaintiff knew that if she found the settlement unacceptable, she could reject it and proceed to trial.

[688] The extent of the duties to fully inform and warn was reinforced and developed in the context of this case by Mr. Buchanan and Mr. Maxwell. Based on their evidence and the authorities, I find the applicable standard of care in advising a client on a settlement in the circumstances faced by Mr. Marzban on October 2, 2001 to be as follows.

[689] Family law practitioners acknowledge that the results of a trial in a matrimonial case are difficult to predict. Nevertheless, settlement of a claim is a significant decision for a client, and before the decision to settle is made, a reasonably competent lawyer should ensure that the client is as fully informed as possible about his or her entitlement under the F.R.A regarding assets, and under the Divorce Act regarding support, on the facts known at the time.

[690] The starting point for advice on the reasonableness of a settlement is a prediction, to the extent possible, of what might reasonably be the monetary value of the possible outcomes at trial, based on the law, the assets and their value, and the position of the other party. The lawyer’s advice should include an assessment of the risks and financial and personal costs of going to trial; assessment of the strengths and weaknesses of the case; the likelihood of an equal or unequal division of family assets and the many variables that contribute to such a result; and the suggestion that it is often better to settle for a little less than risk an uncertain result at trial.

[691] If the lawyer’s knowledge of the facts underlying the claim is incomplete, or if there are other sources of uncertainty that preclude detailed advice as to probable outcomes, the client should be advised of this. He or she should also be told if there are steps that could be taken to rectify those deficiencies, and warned of the risks of settling without taking those steps. As well, the costs of further discovery and its likely impact on the proposed settlement should be discussed.

[692] When dealing with a closely held family company, a reasonably competent family lawyer should advise the client that there is a risk that the outcome may be something other than a compensation order directing one party to buy the other’s interest in the company at fair market value under ss. 65 and 66 of the F.R.A. The client should be advised that a judge may order that the parties each continue to hold their shares in the company, thus remaining in business together, although the courts are reluctant to do this. The client should also be aware that if one spouse buys the other’s interest, the court may direct a significant discount of the value of the seller’s interest, representing the advantage of cash in hand. As well, the client should be warned that there may be a delay in realization of the payment of any judgment.

[693] With respect to spousal support, providing appropriate advice on the likely amount and duration of support requires knowledge of the parties’ incomes and expenses, as well as the facts relevant to an analysis of the factors set out in ss. 15.2(4) and (6) of the Divorce Act. Where there are significant assets, a reasonably competent family lawyer will find it difficult to advise on the outcome of a claim for support until there has been a reasonably final determination of the division of assets. As the law stood in 2001, if the client was likely to receive assets of sufficient value to make her self-sufficient and to diminish the concern that she had experienced economic hardship from the breakdown of the marriage, she would be properly advised that her claim for support may be tenuous at best, or not maintainable at all.

[694] A reasonably competent family lawyer should recognize that income tax repercussions are typically a significant issue in the negotiation of a settlement. He or she must be satisfied that they have been properly addressed and discussed with the client before concluding a settlement, and obtain expert advice on these issues if necessary. The lawyer should also advise the client that the courts have some discretion with respect to the treatment of tax issues and thus the result may be difficult to predict. The lawyer should be aware that the tax treatment of a family asset by the court may vary, depending on whether it is to be imminently sold or retained, and should investigate the likelihood of an imminent sale before advising on the reasonableness of a settlement that includes a tax concession based on a prospective sale.

[695] With respect to valuation dates and recommending updated financial information, the choice of the valuation date is a strategic decision for the lawyer to make in consultation with the valuator and the client. It is common practice to use the last year-end of a business. However, if the resolution of a claim is delayed for a long period, and there is no agreement as to the valuation date, the lawyer may consider obtaining updated financial information. This should be discussed with the client and weighed against the possible impact on the proposed settlement, as well as considerations of expense, delay, and the reliability of interim financial statements.

[696] Ultimately, it is for the client to decide whether to settle or not, having been fully advised of the options and risks.

Did Mr. Marzban breach the standard of care?

[697] I begin with two general observations about the significance of the meeting on October 2, 2001.

[698] First, Mr. Marzban had limited communication with the plaintiff during the course of his retainer after their first meeting on October 25, 2000. In part, this was due to the manner in which events unfolded. Initially, he was waiting until the valuation was completed. Then, he decided to await the completion of the negotiations before advising her on her claim and its likely outcomes. As well, it was Mr. Marzban’s view that he had a wide discretion to conduct the plaintiff’s case as he saw fit, and seek her instructions only on major decisions. At his examination for discovery, when he was asked about the lawyer’s duty to carry out instructions as expressed in Millican, he replied in part:

But basically I think you need instructions to pursue litigation, you need instructions to settle the case. But in between those two there are all kinds of things that we don’t need instructions on and don’t think necessarily, I don’t think necessarily have to follow clients’ instructions on how we do a certain thing.

[699] While there are a number of matters left to a lawyer’s professional judgment in the course of representing a client in a matrimonial matter, in my view the standard of care espoused by the authorities and by Mr. Buchanan and Mr. Maxwell at this trial does not reflect so broad an area of discretion. In any event, these matters led to a situation in which this final meeting provided the first opportunity for the plaintiff to receive advice from Mr. Marzban, not just about the settlement, but about her claim and her potential outcomes in general. I accordingly find that Mr. Marzban had a clear obligation at this meeting to provide comprehensive advice on these matters, and to ensure that the plaintiff was fully informed as to her options.

[700] Second, the plaintiff had given Mr. Marzban instructions to obtain financial disclosure at their first meeting in October 2000. Mr. Marzban later elected to forego financial disclosure, however, as it was his view that the plaintiff’s interest in settlement obviated the need to pursue a traditional litigation model. That view was reinforced by the plaintiff when she instructed him not to proceed with the application concerning Westwood in April 2001. While this approach may have been justified, I find that the standard of care clearly required Mr. Marzban to tell the plaintiff at the October 2, 2001 meeting that, contrary to her earlier instructions, financial disclosure had been limited to the information obtained by Mr. Harder in the course of his valuation. Mr. Marzban was also obliged to warn her that he had insufficient information to advise her fully about her claim. As well, he was required to advise her of the steps that could be taken to obtain more information, and to warn her of the risks to settling without doing so.

[701] I have found it difficult to determine the extent of the advice Mr. Marzban provided at this meeting due to the paucity of detailed evidence from the participants.

[702] The plaintiff’s account of the meeting was limited. She recalled reviewing the settlement agreement with Mr. Marzban clause by clause, but said that she could not recall what he or Mr. Hubley said, although she did recall a comment that she could do better or could do worse. She agreed that she did not raise any concerns about the agreement, and said that she settled on those terms because her advisors told her they were good. She acknowledged that she released her claim to spousal support, and said that this was because she understood that she was not entitled to it. As set out at the beginning of this section, she says that a number of things were not covered by Mr. Marzban at this meeting.

[703] Mr. Hubley testified that he did not pay close attention during the meeting as it was focused on legal issues, and he did not think he could lend anything to the discussion. He did recall that Mr. Marzban raised the question of spousal support with the plaintiff, and that she was happy with the agreement at the end of the meeting.

[704] Mr. Marzban testified that he did most of the talking during the meeting. He said that he had reviewed the agreement the day before, and developed an analysis of the merits of the settlement. However, he had a limited recollection as to how much of that analysis he shared with the plaintiff during the meeting. He said that he probably did not express a lot of the “legal type of things”, but did not define what he meant by that. He had no notes of the advice he gave her. Nor did he confirm his advice in writing following the meeting. He did, however, recall some parts of their discussion.

[705] I will first set out Mr. Marzban’s testimony as to his analysis of the plaintiff’s claim. I will then describe what he recalls about the advice he actually gave to the plaintiff at the meeting.

[706] Mr. Marzban’s analysis of the plaintiff’s claim as of October 2, 2001 was as follows. The valuation of the ABG was central to the value of her claim. If she went to trial, he believed that the best case scenario would be the acceptance by the court of Mr. Harder’s value for her shares, and Mr. Newton simply writing a cheque to her for that amount. However, he had a number of concerns that the result would be less positive. First, he was aware that valuations do not provide one right answer but instead leave the court with a range of possibilities. Second, he had a serious concern that there would be some discount of the plaintiff’s 50% interest in the ABG to acknowledge the benefit of cash in hand, on the authority of Blackett v. Blackett (1989), 40 B.C.L.R. (2d) 99 (C.A.). Alternatively, the court could order that the company be sold. The worst case scenario would be an order that the plaintiff and Mr. Newton both keep their shares in the ABG. She would then be left with no cash, and still be in business with him. As a result of these concerns, Mr. Marzban said he could not advise the plaintiff that if she went to court she would receive Mr. Harder’s value for her shares.

[707] Moreover, Mr. Marzban viewed Mr. Newton as “holding all the cards”, as he was the only one able to keep operating the company. He believed that the plaintiff’s only options were to see the company liquidated, with attendant costs diminishing its value, or have Mr. Newton finance a buy-out from her, knowing that he wanted to pay her as little as possible.

[708] Mr. Marzban said that these factors led him to believe that the only advice he could give the plaintiff with respect to the settlement was that she could do better or she could do worse if she went to trial. He acknowledged that he had not reviewed any documentary evidence, done an examination for discovery of Mr. Newton, or interviewed other witnesses, but said none of that would change the fundamental uncertainty with respect to what might happen with the ABG at trial, or change his opinion that the plaintiff could do better or worse.

[709] Mr. Marzban was also concerned that proceeding to litigation would cause delay. He expected that the trial would be hard fought, and that the January 2002 trial date would be postponed if the plaintiff did not accept the settlement. If the trial turned into “world war three” with extensive expert evidence, he estimated it might cost between $100,000 and $300,000, and there would be ongoing stress, and possibly additional delays in obtaining payment for any judgment if the plaintiff had to take execution proceedings.

[710] With respect to spousal support, Mr. Marzban believed that it was very difficult to predict the outcome at a trial due to a variety of factors. The amount of cash the plaintiff might receive from the division of assets would have a major impact on her right to support. If she received a large enough sum to reduce her need and to allow her to become self-sufficient, and if Mr. Newton had to borrow money to pay a judgment, an award of support was less likely. On the other hand, if Mr. Newton was receiving significant income from Westwood, this could strengthen her claim for support. The plaintiff’s personal characteristics, including her age, work history, opportunities, and the fact she had no children, all indicated to him that if she received an award for support it would not be of long duration.

[711] Mr. Marzban testified that it is not his practice to make a recommendation to a client about a settlement. Instead, he gives a range, and advises whether the offer is within that range. He leaves the decision to the client.

[712] I turn to Mr. Marzban’s account of what he actually recalled telling the plaintiff at the meeting.

[713] Mr. Marzban testified that at the outset Mr. Hubley went through the terms that had been negotiated. He also mentioned four “grinders”: interest, paying back draws, a Westwood management fee, and legal and expert fees. Mr. Marzban understood that Mr. Hubley was still working on these as negotiation points.

[714] I find that Mr. Marzban is mistaken in that recollection. I accept Mr. Hubley’s evidence, as well as the documentary evidence describing the negotiations and the agreement reached on August 23, that the only issue still outstanding between Mr. Hubley and Mr. Brewer as of October 2, 2001 was the plaintiff’s continuing practice of taking draws from the ABG. It appears that Mr. Hubley must have been recounting these items as “grinders” during the negotiations, and Mr. Marzban did not understand that the information was historical, rather than current.

[715] I accept that Mr. Marzban reviewed the settlement agreement with the plaintiff. He testified that he spoke to her about “the property terms”. He told her that at the end of the day all he could say was that the settlement was in the range, and if she chose to litigate she might do better or might do worse. He said that he dealt with the range globally, and did not discuss individual items. Nor did he discuss his opinion in monetary terms with the plaintiff. I accept that he did not recommend the settlement to the plaintiff, leaving it for her to decide whether to accept it.

[716] After refreshing his memory by reviewing the settlement agreement, Mr. Marzban added that he also recalled discussing interest, security, Westwood and support.

[717] He said that they discussed support and the fact that it was not included in the settlement. The plaintiff indicated that she knew it to be a non-issue from Mr. Newton’s perspective. He recalled telling her that depending on the outcome on the asset side, she may or may not get support if she went to trial. He said that he did not discuss the likely amounts or duration of support with her. Nor did he discuss the parties’ circumstances in the context of the factors in ss. 15.2(4) and (6) of the Divorce Act.

[718] With respect to Westwood, he said that he asked the plaintiff why it was excluded from the settlement, and pointed out that they really did not know anything about it. He suggested that if it was excluded it must mean that Mr. Newton was doing some logging through it. Mr. Marzban said that the plaintiff responded that Westwood was a non-starter with Mr. Newton. He would not move on it and she accepted that. The subject was dropped.

[719] Mr. Marzban testified that he raised the fact that there was no interest payable under the agreement for two years, and Mr. Hubley told him this was a “grinder” that he was still working on. I earlier found Mr. Marzban mistaken in that view, but I accept that he did point out to the plaintiff the exclusion of interest from the settlement.

[720] With respect to income tax issues, Mr. Marzban said that he knew that the plaintiff was to receive $1.6 million for her interest in the ABG, and that the settlement included an allowance for tax to Mr. Newton that was more favourable than he would receive in a commercial deal, but said that he did not know the details of this or discuss it with the plaintiff. Nor did he discuss with her how the courts deal with taxes in matrimonial disputes.

[721] With respect to draws from the ABG, Mr. Marzban said that he knew that these had been an issue throughout. Both the plaintiff and Mr. Newton had withdrawn money from the ABG and she did not want to pay it back unless Mr. Newton did too. Mr. Marzban provided no details of a discussion about this at the meeting, other than to say he believed it remained a negotiating point or “grinder”.

[722] Finally, Mr. Marzban said that he did not raise the possibility of updating the financial information of the ABG, or whether the plaintiff had a claim to a share of the ABG profits in 2001 at the fiscal year-end of October 31, 2001.

[723] I accept the veracity of Mr. Marzban’s limited recollection of his discussion with the plaintiff. I found him credible and straightforward in giving his account of the meeting, and in acknowledging the limits of his recollection. I accept that the meeting lasted two hours and he did most of the talking. I infer that he clearly told the plaintiff more than he can recall. Since Mr. Marzban viewed the ABG as the linchpin of the plaintiff’s claim, I am satisfied that some part of his advice must have dealt with his concerns as to the uncertainty surrounding how a court might dispose of the ABG at a trial. Mr. Marzban said, however, that he probably did not talk to the plaintiff about “the legal type of things”. I am unable to interpret that comment in a way that permits me to make a reliable finding as to exactly what he told the plaintiff about the ABG, or other issues, beyond that which he recalls.

[724] Having accepted Mr. Marzban’s evidence about the advice he gave to the plaintiff on October 2, 2001, I am left to measure that against the standard of care set out earlier in this section. I find that the plaintiff has established that this advice did not meet that standard.

[725] The plaintiff’s claim focused on three main issues: the value of the ABG, the role of Westwood, and her entitlement to spousal support. I find that the standard of care clearly required Mr. Marzban at some point during his retainer to advise her about those claims in the context of the statutory scheme that governed them, being Part 5 of the F.R.A. dealing with division of family assets, and s. 15.2 of the Divorce Act dealing with support. Such advice was essential to provide the plaintiff with a reference point by which to judge the settlement and her potential outcomes at a trial.

[726] There is no evidence that Mr. Marzban provided such advice. He agreed that he did not have such a discussion with the plaintiff at their first meeting. He said that at that point he assumed that the statutory framework had been discussed during Mr. Lobay’s retainer, and her claim appeared straightforward. It was understood that there would be an equal division of assets. Support could not be determined until the outcome of that division was known. He said that he therefore decided it was sensible and cost-effective to leave the discussion of the statutory context until they had a value for the ABG, and knew if it led to a negotiated settlement or litigation.

[727] There is nothing in the evidence about the meeting on October 2, 2001 to support a finding that this anticipated discussion took place at that time. While I appreciate that the plaintiff may have received earlier advice from Mr. Lobay, I do not accept that this removed Mr. Marzban’s obligation to ensure that she understood the legal framework within which she should consider the settlement and her options. Any advice from Mr. Lobay had been given over a year before, and the situation had evolved. In particular, Westwood had emerged as a concern since Mr. Lobay’s retainer.

[728] I find that Mr. Marzban breached the standard of care in failing to advise the plaintiff about the statutory framework underlying her matrimonial claim.

[729] Turning to the advice given with respect to Westwood, I have found that it raised potential issues as to whether it was a family asset, whether Mr. Newton was earning sufficient income from it to have an impact on the plaintiff’s claim for spousal support, and whether his activities with Westwood were devaluing the ABG, thereby creating a potential claim for reapportionment under s. 65 of the F.R.A.

[730] Mr. Marzban agreed that he did not talk to the plaintiff about Westwood as a potential family asset in the context of the F.R.A. Nor did he discuss its relevance to a possible claim for reapportionment, or to her claim for spousal support. Mr. Marzban agreed that as of October 2, 2001 he did not know enough about Westwood to fully advise the plaintiff about these matters. However, he did not tell the plaintiff this, or give her advice as to how more information about Westwood could be obtained through the discovery process. Nor did he give her a specific warning as to the risk of settling her claim without a further investigation of Westwood. I acknowledge that he did raise with the plaintiff the fact that they had limited information about Westwood, and that there might be something there. As well, I am satisfied that the plaintiff knew that Mr. Marzban could obtain more information about Westwood if she wished, due to the earlier application he had prepared and the affidavit she swore. I accept that she was dismissive of his query, however, and indicated that she accepted Mr. Newton’s position that it would not be part of the deal.

[731] While I appreciate that the plaintiff’s apparent lack of interest suggested that further advice was not welcome or necessary, I find that the standard of care nevertheless required Mr. Marzban to ensure that, before she acquiesced to Mr. Newton’s position, she was fully advised of Westwood’s potential importance to her claims; to warn her that he did not have enough information to advise her properly about it; to advise her of the steps he could take to obtain further information; and to warn her of the risk of settling without taking those steps. There is no evidence that Mr. Marzban provided such advice or warning. I find that his failure to do so was a breach of the standard of care.

[732] Turning to the advice given with respect to the ABG, I reject the plaintiff’s view that the standard of care required Mr. Marzban to advise her about the distinction between fair market value and “fair value”. The plaintiff cited Sartori v. Sartori (1993), 13 O.R. (3d) 710 (Gen. Div.); Safarik v. Ocean Fisheries Ltd. No. 1 (1993), 12 B.C.L.R. (3d) 342 (C.A.); and Fletcher v. Fletcher, 2003 BCSC 1498 in support of this argument. In my view, those cases do not suggest that “fair value” as used in Sartori is a term of art in matrimonial law. It is simply a descriptive phrase that covers the general discretion of the court to deal with unfairness, for example under s. 65 of the F.R.A., and the court’s powers to weigh and reject evidence in general, including valuation evidence. The other two cases add nothing more. Moreover, neither Mr. Buchanan nor Mr. Maxwell provided evidence that supported a view that the concept of “fair value” is a term routinely used in the matrimonial law of British Columbia, or that the standard of care requires a family lawyer to advise a client about the distinction between that concept and fair market value.

[733] The essence of Mr. Marzban’s advice to the plaintiff about the ABG was that she could do better or could do worse, and that the settlement fell within the possible range of outcomes. While that may have been a realistic “bottom line” in the circumstances of this case, I find that, standing alone, it does not meet the standard of care that requires the lawyer to fully inform a client about options and risks. Such global advice provided no reference points to permit the plaintiff to assess her options and risks in her particular circumstances. It failed to address the question central to her decision whether to go to trial or settle – how much better or worse? The standard of care requires, to the extent possible, reference to outcomes in monetary terms or in reference to other likely factual findings at trial.

[734] I appreciate that Mr. Marzban did tell the plaintiff more than this general statement but, for the reasons described earlier, I am unable to determine how much more. I appreciate that the onus of proof rests with the plaintiff, but even on his own account, Mr. Marzban did not discuss with her a number of matters that had a potential impact on the value of the ABG if she went to trial.

[735] He did not discuss potential outcomes in monetary terms, although Mr. Harder’s going concern and liquidation values provided reference points by which to assess the value given to the ABG in the settlement, and the possible outcomes at trial. As well, I find that the standard of care required Mr. Marzban to raise with the plaintiff the tax concessions made to Mr. Newton in the settlement, and the way in which a court would be likely to treat these in the matrimonial context, in relation to the value of her interest in the ABG.

[736] The discussion of the lower end of the range for the ABG would undoubtedly include the risks and uncertainties of what a court might do with the ABG, described by Mr. Marzban in his evidence about his analysis of the plaintiff’s claim. Given that this was his main concern on October 2, 2001, I infer that he must have discussed as least some of these with the plaintiff, but I am unable to determine exactly what advice he provided. The risks of an order that both parties stay in business together, or of a discount from the plaintiff’s interest for the benefit of cash in accord with the principles in Blackett, were not easily quantified. I find that the standard of care required Mr. Marzban to discuss these matters with the plaintiff sufficiently to enable her to understand the reasons for the uncertainties, and the risks of proceeding to trial instead of accepting the settlement.

[737] As well, since this was the first time that Mr. Marzban had spoken to the plaintiff about the valuation, I find that the standard of care required him to advise her that he had accepted Mr. Harder’s financial disclosure and his valuation without question or independent inquiry, and that if she felt his value was too low, she did not have to accept his valuation or the Ritchie Bros. Appraisal as the basis for the settlement. It remained open for her to reject the settlement and have another appraisal and valuation done that might produce a higher number. I find that no advice of this nature was given.

[738] The plaintiff also complains that Mr. Marzban did not review with her the concessions made during the negotiations with respect to the draws, the start-up loan, and interest, and advise her how those matters might have been treated at a trial. I agree that a reasonable family lawyer should undertake such a discussion when reviewing a proposed settlement with a client. Here, Mr. Marzban did raise the absence of interest for the first two years of the agreement, but there is no evidence that he advised the plaintiff that she would receive interest on a judgment following a trial. I find that Mr. Marzban did not discuss the draws with her, although he knew this had been an issue throughout the dispute. Nor did he discuss the Start-up Loan.

[739] Turning to the issue of spousal support, I find that Mr. Marzban properly raised the concern that the settlement did not include it, and advised the plaintiff that she may or may not get support if she proceeded to trial, as it would depend on what happened with the assets. Despite that uncertainty, I find the standard of care required him to discuss with her the statutory scheme underlying her entitlement to support, particularly ss. 15.2(4) and (6) of the Divorce Act, how her right to support and the division of assets were inter-related, and the factors that might have some bearing on the amount and duration of an award for support if she were to receive it. Mr. Marzban conceded that no such discussion took place.

[740] Finally, I find that the standard of care required Mr. Marzban to discuss with the plaintiff the pros and cons of going to trial as opposed to settling. On the negative side, this discussion should have included the potential costs, stresses, and delays presented by a trial, the uncertainty of the result, and the question of whether execution proceedings would be required to enforce a judgment against Mr. Newton, resulting in further costs and delay. On the positive side, Mr. Marzban would be expected to advise the plaintiff that, if the settlement was rejected, the January trial date would likely be adjourned, presenting the prospect of enhancing her claim by updating financial information of the ABG after its pending fiscal year-end on October 31, 2001, possibly obtaining another valuation and equipment appraisal, and conducting discovery of Mr. Newton. While some of these points formed part of Mr. Marzban’s own analysis, on the evidence available, I am unable to find that the plaintiff was fully informed about these matters on October 2, 2001.

[741] I conclude that Mr. Marzban breached the standard of care in failing to fully advise and inform the plaintiff with respect to the fairness of the settlement, and to warn her of the risks of settling her claim without obtaining financial disclosure.

Failing to prepare for trial

[742] The plaintiff argues that Mr. Marzban was negligent in failing to prepare for the January 2002 trial date. She says that, had she rejected the settlement, the trial would have had to be adjourned as he was not ready. She had been clear that she did not want further delay, and says he failed to meet the standard of care in preparing for trial while the settlement negotiations were ongoing.

[743] Both Mr. Buchanan and Mr. Maxwell agreed that a reasonable family lawyer begins by doing whatever possible to resolve a claim by settlement. Mr. Buchanan offered the view that “a bad settlement is better than a good lawsuit”. Mr. Maxwell testified that, as long as the parties seek resolution through negotiations, trial preparation is superfluous and results in unnecessary costs. It is a fine balance to judge the benefit of spending money on trial preparation and the probability of settlement. Ultimately, it depends on the client’s instructions.

[744] Mr. Marzban testified that while he could have done more to prepare for trial, it made no sense in the context of negotiations. He agreed that if the plaintiff had rejected the settlement on October 2, 2001, it was unlikely that the matter could have proceeded to trial as scheduled in January 2002. In all probability, the trial would have been adjourned for up to a year.

[745] I find that, in the circumstances, it was not unreasonable to postpone trial preparation until the outcome of the settlement negotiations was known. I appreciate that the degree of trial preparation, its costs, and its impact on the negotiations were matters that should have been discussed with the plaintiff and left to her choice, and there is no evidence that Mr. Marzban discussed these with her. However, the alleged breach is a failure to prepare for trial, not a failure to consult or advise her with respect to this. Moreover, there is no evidence that Mr. Marzban’s lack of trial preparation and its effect on the January 2002 trial date was discussed at the meeting of October 2, 2001, or influenced the plaintiff’s decision to accept the settlement.

[746] I accordingly find no breach of the standard of care with respect to this allegation.

Conclusion with respect to allegations of breach of the standard of care

[747] I conclude that Mr. Marzban was in breach of the standard of care of a reasonably competent matrimonial lawyer in the following respects:

a) he failed to meet with Mr. Harder and the plaintiff after the valuation was complete and before the negotiations commenced to discuss the valuation, the existing appraisals, and the option of a third appraisal;

b) he failed to advise the plaintiff of her rights under the statutory scheme of the F.R.A. and Divorce Act; and

c) he failed to fully advise and inform the plaintiff with respect to the fairness of the settlement, and to warn her of the risks of settling her claim without taking further steps to obtain financial disclosure.

CAUSATION

[748] In order to succeed in her action for negligence, the plaintiff must establish that Mr. Marzban’s breaches of the standard of care caused her to suffer damages.

The Law

[749] The traditional test for determining causation in negligence cases is the “but for” test, which requires the plaintiff to prove on a balance of probabilities that his or her loss would not have occurred but for the negligence of the defendant: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 14; Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333 at paras. 21-22.

[750] At the end of her evidence in chief, the plaintiff testified that there were many things that she did not understand when she settled her claim because of the inadequate representation and advice she received from the defendants. These included the distinction a court would draw between fair value and fair market value; the fact that because the ABG was a going concern it should not have been valued on a liquidation basis; the significance of obtaining a third appraisal; the treatment of tax considerations in a matrimonial context; and her ability to claim spousal support. She said that had she been advised of her rights with respect to these matters, she would not have settled her claim, and instead would have proceeded to trial and obtained a materially better result.

[751] In short, it was clearly the plaintiff’s view that, but for the inadequate advice of Mr. Marzban, she would not have settled her claim. Because she did settle, she believes that she lost the opportunity to obtain a judgment at trial that would be materially better than the settlement.

[752] This approach is also reflected in her pleadings with respect to causation and damages at paragraphs 25 and 26 of the Statement of Claim:

28. Ms. Newton says that the services and advice provided or omitted to be provided by Mr. Marzban which resulted in her decision and instructions to settle her matrimonial proceedings on the terms and conditions aforesaid were in breach of the JML Retainer and duty of care owed to Ms. Newton, and in the circumstances, Ms. Newton has suffered loss and damage.

29. Had Ms. Newton been properly represented and advised by Mr. Marzban, Ms. Newton would not have settled the matrimonial proceedings on the terms and conditions aforesaid and Ms. Newton would have received the benefit of materially more favourable settlement terms or a materially more favourable outcome after a trial of the matrimonial proceedings and execution on the judgment.

[753] Paragraph 28(a) then sets out the particulars of her damages:

(a) the difference between the value of the terms and conditions Ms. Newton accepted in settlement of her claims in the matrimonial proceedings with Mr. Newton set out in the Settlement and the value Ms. Newton would have received had further settlement negotiations ensued based on proper advice and services by Mr. Marzban or judgment having been obtained and executed upon after a trial of the matrimonial proceedings.

[754] Despite this apparent endorsement of the traditional test for causation in her evidence and pleadings, the plaintiff took the position in her argument that the circumstances of this case justify a departure from that approach. She put forward an analysis that introduced statistical probability as a basis for causation. She maintained that if she could show that Mr. Marzban’s negligence caused the loss of a real and substantial opportunity to achieve a better result at trial, causation was established and the evaluation of that chance became part of the assessment of damages.

[755] In support of that argument, the plaintiff relied on Hagblom v. Henderson, 2003 SKCA 40. In that case, the appellant, who had been a client of the respondent lawyer, argued that the lawyer’s negligence in failing to call an expert witness on his behalf at a trial caused him to lose the case. Jackson J.A., on behalf of the Court, agreed that the lawyer was negligent and found that, had the expert been called, the client would have had a 75% chance of raising a successful defence. She thus awarded 75% of the damages sought.

[756] At paras. 121-132 of the judgment, Jackson J.A. discussed the lack of clarity in tort law as to whether loss of chance is considered at the stage of causation, or in the assessment of damages. Her review of the authorities revealed that some decisions dealing with legal malpractice have recognized that a plaintiff/client may succeed in an action where, through the lawyer’s negligence, the client had lost a case that there had been some chance of winning. She stated her conclusions at paras. 131 and 132:

[131] As I have fixed Mr. Hagblom's loss at 75%, it is more probable than not that Mr. Hagblom would have succeeded. Thus, we do not need to decide the issue as to whether loss of a chance enters the analysis at the causation stage because the traditional test, as stated by the second trial judge, applies. The issue is whether, on a balance of probabilities, but for the negligence of Mr. Henderson, Mr. Hagblom lost something of value greater than a 50% chance of success. It is not, however, necessary to say, as the second trial judge said, that the fault must have caused the loss of the trial.

[132] If it were necessary to determine the appropriate causative test, I note that the Court in Allied Maples Group Ltd. v. Simmons & Simmons [See Note 142 below] held that once the plaintiff proves as a matter of causation that he or she had a real or substantial chance, as opposed to a speculative one, causation is proven and the evaluation of the chance becomes part of the assessment of the quantum of damage. [See Note 143 below] It should be evident by this that the issue which is left for another day is whether a court may assess damages even though the percentage of the loss is 50% or less.

[757] I am unable to accept the plaintiff’s argument that a similar loss of chance analysis applies to the issue of causation in this case. There is a fundamental difference between the circumstances before me and those in Hagblom. In Hagblom, the court found a direct causal link between the lost chance to win the case and the lawyer’s negligence. The lawyer had breached the standard of care by failing to call a critical witness who would have significantly improved the strength of the client’s case, and his chance of winning at trial. In such a case, the probability of success is an inherent part of the causation analysis, because to prove that the defendant lawyer has caused a loss, the plaintiff/client must prove that, but for the lawyer’s negligence, he or she had a chance to realize a benefit from an opportunity. The probability of success is both an essential part of the causation analysis and an aspect of the quantification of damages. Both issues require an assessment of the strength of the plaintiff’s claim at a “trial within a trial”. The probability of a successful outcome, and thus the value of the opportunity, must be assessed before the question of causation is answered.

[758] That is not the situation here. Unlike Hagblom, the plaintiff does not plead that there was a direct link between Mr. Marzban’s negligent advice and loss of a chance to get a better result at trial. She does not plead that his advice had any impact on the outcome of a future trial. Instead, she says that his negligence caused her to settle her claim, and her loss is the opportunity to proceed to trial at all.

[759] The plaintiff pleads the “materially better outcome at trial” as the measure of damages, not as an issue of causation. The probability attached to the lost chance of that better outcome is an inherent part of the quantification of damages, which will be assessed in a “trial within a trial” if causation is found. That exercise will seek to determine what the likely outcome of her matrimonial trial would have been. As Mr. Marzban is not alleged to have taken any actions that reduced her opportunity to obtain a better result at a trial, the plaintiff is entitled to put forward the best case she could at the hypothetical trial, within the constraints of the evidence before me and the findings I have made to that point at this trial.

[760] I conclude that, with respect to causation, the plaintiff must prove on a balance of probabilities that if Mr. Marzban had provided advice that met the standard of care, she would not have accepted the settlement.

[761] In considering that issue, I am mindful that I must resist the tendency to view the plaintiff’s decision to settle with “the acuity of vision given by hindsight”: Karpenko v. Paroian, Courey, Cohen & Houston (1980), 117 D.L.R. (3d) 383 at 398 (Ont. H.C.J.). I adopt the view of Groberman J. in Sports Pool Distributors Inc. v. Dangerfield, 2008 BCSC 9 at para. 97, that in cases of professional negligence a bare assertion that a client would have behaved differently if he or she had received proper advice should be viewed with some scepticism. Like Mr. Justice Groberman, I endorse this observation of Southin J.A. in Hong Kong Bank of Canada v. Touche Ross & Co. (1989), 36 B.C.L.R. (2d) 381 at 392 (C.A.):

It is always easy for a witness to say what he would have done and for a judge to say he accepts that assertion. But such evidence is, in truth, not evidence of a fact but evidence of opinion. It should be tested in the crucible of reason.

Introduction

[762] In putting forward her position on causation, the plaintiff tended to rely on the information that she says she would have obtained had she received appropriate advice from Mr. Marzban. There are two inter-related problems with that approach. First, it is not the result of a potential future investigation, but the plaintiff’s state of mind at the time the advice was given or not given, that is the governing factor in determining the effect of Mr. Marzban’s acts on her decision to settle. Second, it necessarily leads to speculation about the actions and state of mind of third parties. For example, the plaintiff says she would not have settled if she had been told by Mr. Marzban that further information could be obtained about Westwood through discovery procedures. However, predicting what information would have been revealed raises questions as to what advice Mr. Mortimer would have given to Mr. Newton, what answers Mr. Newton would have provided, and what further investigation might have ensued. There is little to suggest that the plaintiff knew the answers to such questions at the time she decided to settle.

The context for the plaintiff’s decision to settle

[763] The plaintiff’s decision to settle did not take place in a vacuum. Multiple and inter-related factors formed the backdrop to her matrimonial dispute and her dealings with the defendants, Mr. Newton, and Mr. Brewer. These included the economics of the logging industry, the financial circumstances of the ABG, Mr. Newton’s circumstances, the plaintiff’s relationship with him, and a number of personal considerations and characteristics.

[764] Near the beginning of these Reasons, I described the cyclical state of the logging industry, and the environmental, regulatory, and economic factors that created challenges and uncertainty with respect to future productivity and profitability in that industry in 2000 – 2001. Given the plaintiff’s long-standing connection with logging and the ABG, I am unable to accept her evidence that she was unaware of such concerns. I find that on July 17, 2001, Mr. Hubley expressly discussed them with her in the course of reviewing his memorandum to Mr. Brewer, which dealt with the importance of security for the plaintiff under the proposed settlement and included this statement:

The economics of the forestry industry

We are both very aware of the state of affairs within the logging industry. The threats from the US on our exports as well as environmental, European and Asian market problems have all lead to the increased risk in this business. These along with the fact that we have too much productive capacity within the logging industry for the wood available leads me to conclude that the risk is significant with respect to the economic environment, without considering the actual financial position of the companies.

I appreciate Lyle [sic] single mindedness and commitment to have Christine paid. I do not believe that we have questioned his integrity in paying the debt. I think that the major reason for asking for the security of the company is to reduce the risk from those events that take place outside of Lyle’s control.

[765] I accept Mr. De Clark’s evidence that the ABG’s performance was affected by these forces, and that its cash flow was tight from 1999 to 2001. I find that the plaintiff was aware of this. Mr. De Clark testified that she and Mr. Newton typically paid any annual bonus they received back into the ABG to assist with the cash flow. The plaintiff clearly had significant concerns about the viability of the ABG in the months immediately after the separation when the company’s financing was precarious. The terms of the new financing obtained from GEC for $4 million in October 2000 committed the ABG to bringing its debt load down substantially, reducing its cash flow. While I appreciate that the plaintiff may not have been aware of the details of this commitment, Mr. Brewer raised the tenuous financial state of the ABG as a continuous theme during the negotiations.

[766] Moving to the role of Mr. Newton, since he did not testify I must ascertain the part he played in the plaintiff’s decision-making process from statements that he and his agent, Mr. Brewer, made to other witnesses. As noted previously, I do not rely on those statements for their truth, but for the state of mind they created in the plaintiff and her advisors.

[767] Mr. Newton presents as something of an enigma. He was clearly a capable logger and the operational force behind the ABG. I am satisfied that his abilities and experience were the primary reason for its success. Early in the negotiations, he made this clear to the plaintiff, describing the ABG as “a pig in a poke” that depended heavily on his abilities. I accept that without Mr. Newton’s efforts the ABG was unlikely to continue its operations.

[768] In the absence of direct evidence, I am not prepared to make a definitive finding as to Mr. Newton’s association with the Hells Angels. However, it is clear that the plaintiff and the defendants believed that he had joined that organization. I am satisfied that the plaintiff was concerned that this association would jeopardize the ABG, and put her interest in the company at risk. She swore to this in the affidavit prepared by Mr. Marzban in April 2001. She testified at this trial that she was aware that the organization could be a front for criminal activity, and that several members of the Hells Angels were working at the ABG. Her concerns were heightened when Mr. Hubley told her that Mr. Newton’s association with the Hells Angels was one of the reasons why the RBC had pulled its financing. Mr. Marcelo Bohm, a Vice-President of GEC, testified that at the time GEC provided financing to the ABG in October 2000, he was not aware that Mr. Newton was associated with the Hells Angels. He said that if he known this, GEC would not have done business with the company. While this was not known to the plaintiff at the time, I find his statement reinforces the legitimacy of her concern that Mr. Newton’s association with the Hells Angels could have serious negative consequences for the ABG.

[769] Mr. Newton’s inability to pay a substantial settlement or judgment was a constant theme throughout the negotiations. The plaintiff knew that he had limited assets beyond the ABG. The company’s financing arrangements with GEC and HSBC placed significant limitations on both of them as to what they could do with the income and the assets of the company. The plaintiff had been a signatory to documents related to the financing, and these made it clear that both she and Mr. Newton had been required to provide assignments and postponements of their shareholder’s loans as security, as well as unlimited personal guarantees. Further, HSBC stipulated that they could not remove more than $200,000 annually in remuneration from the ABG, including salaries and bonuses.

[770] Mr. Brewer and Mr. Newton repeatedly referred to the these constraints during the negotiations, and took the position that the settlement must be on a liquidation basis because Mr. Newton could not afford to pay Mr. Harder’s value and continue to operate the ABG. He periodically raised the threat of liquidating the ABG if a settlement satisfactory to Mr. Newton could not be reached. The evidence was somewhat unclear as to how this threat was intended or interpreted. At times, it appears to have raised a scenario in which Mr. Newton simply walked away from the ABG. At other times, it was raised in the context of a formal application to wind up the company. I accept that during the negotiations the plaintiff and Mr. Hubley did not treat liquidation as a serious threat. I find, however, that it would have become a concern if negotiations failed. The plaintiff and Mr. Newton were clearly not able to operate the ABG together. She could not operate the company and did not want to buy it from him. He did not want to continue working for her benefit. While it was not financially beneficial to either of them to wind up the company, I am satisfied that this was a realistic possibility if Mr. Newton decided that the plaintiff’s demands for the value of her shares were beyond his means.

[771] The dynamics of the personal relationship between the plaintiff and Mr. Newton after separation were complex, and fluctuated from overt hostility on the part of Mr. Newton to renewed intimacy. The plaintiff testified that she was still in love with him, and left him only because of his decision to join the Hells Angels. I accept that, during the early months of the separation, Mr. Newton exerted considerable pressure on her to settle through hostility and threats. I find that he became less aggressive as time passed, however, and by mid-2001 he and the plaintiff were on amicable terms again to the point of having resumed intimate relations.

[772] The plaintiff testified that she remained fearful of Mr. Newton to a degree throughout. Yet she was able to successfully negotiate some significant issues, such as security, directly with him. Her evidence as to whether her ongoing fear of him influenced her decision to settle was contradictory. She told Mr. Hubley that she wanted a settlement in part because she wanted to stay on good terms with Mr. Newton and not upset him. Given the mercurial nature of their relationship, I find it difficult to say whether this was due to fear or fondness. Two years after the settlement, the plaintiff filed an action against Mr. Newton alleging that he had misrepresented his assets and financial position to her, and had influenced her or controlled her to his advantage at the time of the settlement. She also claimed that she had settled because of threats and pressure from him. That action had not proceeded at the time of this trial.

[773] Turning to the plaintiff’s personal characteristics and considerations, I find that, from the outset, she had a strong preference to resolve her matrimonial dispute though settlement. I accept that initially this may have been driven, at least in part, by Mr. Newton’s hostility. I also accept Mr. Hubley’s evidence that when the hostility moderated in 2001, the plaintiff’s attitude toward settlement fluctuated at times, but her most consistent theme remained that she wanted to settle as long as it was fair, because she wanted to stay on good terms with Mr. Newton, and to receive compensation sooner rather than later.

[774] I find that during the negotiations, instead of forcefully pursuing her goal of $2 million, the plaintiff was prepared to make a number of concessions in order to reach a settlement of $1.771 million. I am satisfied that Mr. Hubley periodically reminded her during that process that if she was unhappy with the way the negotiations were going, she could always go to court, and that she should speak to Mr. Marzban about this. However, the record indicates that the plaintiff showed little interest in pursuing litigation as long as Mr. Newton was prepared to negotiate. Her instructions to Mr. Marzban to proceed with the application in April, to set a trial date at the end of May, and to deliver a notice of trial in July, were all given at times when the negotiations appeared to be faltering. When they resumed, she had no further communications with Mr. Marzban about these or other measures to advance the litigation.

[775] I find that during her matrimonial dispute the plaintiff was prone to acting independently and impulsively in making significant decisions, without seeking or following advice from the defendants or other advisors such as Mr. Lobay. Contrary to strong and repeated advice from Mr. Lobay, she signed a postponement of spousal support. She also instructed him to prepare a settlement in June 2000 that would have given her $650,000 over 10 years for her interest in the ABG, despite advice from him and Mr. Hubley that the value of her interest in the ABG may be considerably higher than that and she should first obtain financial disclosure. After she had signed that agreement, she unexpectedly changed her mind and decided not to go ahead with it. Later, in October 2000, she refused to follow Mr. Marzban’s advice that she should not solicit a further offer from Mr. Newton without financial disclosure. In December 2000, when she received an offer in response of approximately $909,000 over 50 months for her interest in the ABG, she rejected this without seeking advice from Mr. Marzban or Mr. Hubley.

[776] While I appreciate that during 2000 she may have been somewhat influenced by pressure from Mr. Newton, I find similar impulsive conduct demonstrated in April 2001. At that time, she immediately instructed Mr. Hubley to commence negotiations upon receiving Mr. Harder’s valuation. She instructed Mr. Marzban not to proceed with the application with respect to Westwood. She chose her financial goal in the negotiations without advice from any of the defendants.

[777] I find that this behaviour strongly suggests that the plaintiff had her own agenda, which over-rode the advice she received from the defendants. Her limited recollection of their advice reinforces that view, and leaves it open to infer that their input had little impact on her chosen course of action.

[778] I accept Mr. Hubley’s evidence that by April 2001 the plaintiff was frustrated, nervous, and concerned with the uncertainty and delay in resolving her dispute, and had a strong wish to bring the matter to an end. I find that exemplified in his testimony that she advised him then that Mr. Newton had told her he and Mr. Brewer were upset with Mr. Harder’s numbers, and that she was worried that Mr. Harder’s valuation was too high, and she would not get a good settlement if they had to sell the company because Mr. Newton had no incentive to carry it on.

[779] Finally, while the plaintiff equivocated about this, I find that her frustration and eagerness for an early settlement were motivated in part by financial constraints. She and Mr. Newton had enjoyed a high standard of living during the marriage, and she no longer had unlimited access to funds from the ABG to support this. She did not seek employment after the separation, but continued to receive a monthly draw of $5,000 from the ABG. However, she acknowledged that during the summer of 2001 she was spending several thousand dollars a month on items such as spas, travel, and fitness. In the 18 months between the separation and the settlement, in addition to those monthly draws, she had withdrawn about $88,000 from the ABG, cashed in the Midland Walwyn Shares worth $65,000, and borrowed $30,000 from her sister. As well, her mother had paid Mr. Marzban’s retainer because the plaintiff did not have the funds to do so.

[780] In summary, I accept that the plaintiff’s objectives were to obtain an early and fair settlement of her claim that did not upset Mr. Newton. In attempting to achieve that, however, I find that she was faced with a number of uncertainties that were beyond her control and that could operate to her disadvantage, particularly if the resolution of her matrimonial dispute was delayed. These included economic concerns and threats to the ongoing viability of the ABG, not just in financial terms, but also related to Mr. Newton’s association with the Hells Angels and whether he had an ongoing commitment to the ABG. There was also the question of whether Mr. Newton would or could pay any substantial settlement or judgement.

[781] I find that it was clear to her that these uncertainties limited her options in reaching a satisfactory resolution with respect to her interest in the ABG. She did not want to remain in business with Mr. Newton. She could not buy and operate the business herself. Its ongoing profitability depended largely on his efforts. If she put forward a position that was unreasonable from his point of view, she might force him to take steps to wind up the company. In the words of both Mr. Harder and Mr. Marzban, Mr. Newton “had all the cards in his hands”.

[782] I am satisfied that, while the plaintiff wanted a fair settlement, these considerations made it clear to her that negotiating an arrangement whereby she was bought out of the ABG by Mr. Newton, on terms that permitted payment over time with security on any outstanding balance, would be the most pragmatic outcome for her, even if the settlement amount was something less than fair market value. I find that she was aware that a trial might lead to a higher award, but that option was unattractive to her due to the additional delays, costs, and uncertainty that it represented.

[783] I find that the plaintiff’s relationship with Mr. Newton also influenced her approach to resolving their matrimonial dispute. I am satisfied that her wish to remain on good terms with him played a role in her acceptance of his position on several significant issues without inquiry or advice from the defendants. She knew it was open for her to pursue a third appraisal, but she declined to do so because Mr. Newton was not keen on it. When Mr. Marzban raised the exclusion of spousal support and Westwood from the settlement as potential issues at their final meeting, the plaintiff was dismissive of his concerns, indicating that Mr. Newton said these were off the table and she was content with that. While I appreciate that the plaintiff says that she conceded these matters because of inadequate advice from Mr. Marzban, I find that this does not explain her willingness to so readily accept Mr. Newton’s position without soliciting advice on the wisdom of such a course. I am satisfied that, while the plaintiff wished to obtain as high a settlement as possible, she knew where Mr. Newton had drawn the line on such issues, and she made a deliberate decision not to step over that line and risk losing the settlement and his good will.

[784] I conclude that these contextual factors played a significant role in the plaintiff’s decision to settle her claim, regardless of any advice given or not given by Mr. Marzban.

Mr. Marzban’s failure to meet with Mr. Harder and the plaintiff about the valuation and appraisals

[785] This is effectively the issue of a third appraisal. The plaintiff says that had Mr. Marzban fully explored this option with Mr. Harder, and then advised her properly of the purpose, importance and need for a third appraisal, she would have elected to postpone the negotiations to obtain a more favourable equipment appraisal based on a higher methodological premise, like the Springer Appraisal. She hypothesizes that since Mr. Newton made it clear that he would only negotiate on the Ritchie Bros. values, there would have been no settlement. Instead, she would have proceeded to trial with a significantly higher valuation, and obtained a materially better result at trial than the settlement of $1.771 million.

[786] I have found that Mr. Marzban breached the standard of care in failing to meet with Mr. Harder and the plaintiff to discuss the valuation before negotiations commenced. With Mr. Harder, he should have discussed the factual assumptions and premises on which the valuation was based, and explored the reasons for the discrepancy between the AA Appraisal and the Ritchie Bros. Appraisal, the reasons for Mr. Harder’s reliance on the latter, and the option of obtaining another appraisal. The standard of care also required that he discuss the information he obtained from Mr. Harder with the plaintiff, and advise her about the impact of the valuation on her likely outcomes, and the option and implications of commissioning a third appraisal, including its costs and likely impact on the pending negotiations.

[787] Determining exactly what information would have passed between Mr. Marzban and Mr. Harder at such a meeting is necessarily speculative to a degree. Based on the evidence and my previous findings, I conclude it would reasonably have included the following.

[788] Mr. Harder would have confirmed his view that he had valued the ABG as a going concern. He would have explained why he rejected the AA Appraisal as unreliable, and why he accepted the Ritchie Bros. Appraisal as the fair market value of the ABG equipment for the purpose of his valuation, in the same manner as his evidence at this trial.

[789] I find it unlikely that Mr. Marzban would have challenged Mr. Harder’s opinion on those matters, but I accept that he would have canvassed with him the option of a third appraisal as a means of improving the plaintiff’s position. This would have revealed that a third appraisal could be obtained from Universal Appraisal, Mr. Pearson’s firm, for $12,000 to $15,000 plus disbursements. Based on my earlier findings, Mr. Harder would not have provided information about the likely result of a Universal Appraisal appraisal. However, Mr. Brewer had told Mr. Harder that GEC had appraised the ABG equipment for $5.3 million (the reason for that figure instead of the actual appraisal amount of $5.5 million is unclear), and I find it likely that Mr. Harder would have told Mr. Marzban this. I anticipate that their discussion would also have covered Mr. Harder’s ongoing role and the fact that, as an independent expert, he would have to be satisfied with any third appraisal. There would also be an inquiry as to what additional fees he would charge if he was required to redo his valuation on the basis of a new appraisal. I find that Mr. Harder would also have conveyed that while Mr. Newton and Mr. Brewer would not oppose another appraisal, they viewed it as irrelevant and would only negotiate using the Ritchie Bros. values.

[790] Further information that might have been provided to Mr. Marzban by Mr. Harder becomes more speculative. It is difficult to envisage what conversation might have taken place about methodological premises, given the fact that Mr. Harder viewed the Ritchie Bros. Appraisal as providing the fair market value of the ABG equipment. I find it clear, however, that Mr. Harder would not have recommended seeking a third appraisal on a premise of fair market value in continued use, given his view that the nature of the ABG equipment did not justify such an approach. It is possible that Mr. Harder and Mr. Marzban may have discussed the impact of using an equipment appraisal in the range of $5.3 million on Mr. Harder’s valuation. On my admittedly rough and inexpert calculation it appears that an appraisal in that amount would add $410,000 to the capital asset value used by Mr. Harder in his tangible asset backing calculation. That would then have to be adjusted downward by the deduction of the tax shield foregone. The plaintiff’s half interest in the ABG would accordingly increase by something less than $205,000 on these figures.

[791] While more remote, it is possible that Mr. Marzban may have had a preliminary discussion with Mr. Pearson after he spoke to Mr. Harder, and learned that if Universal Appraisal did an appraisal, it would be based on an orderly liquidation value premise. While it is conceivable that Mr. Pearson might have advised that a Universal Appraisal appraisal would likely lie between the AA Appraisal and the Ritchie Bros. Appraisal, but closer to Ritchie Bros., that is even more remote, given my earlier findings. I nevertheless conclude that Mr. Marzban would be aware, as a result of these inquiries, that there was some indication that a third appraisal would be higher than the Ritchie Bros. Appraisal, although not significantly so.

[792] I find it unlikely that Mr. Marzban would have embarked on further investigation into a third appraisal before meeting with the plaintiff to share this information and obtain her instructions.

[793] I find nothing in the hypothetical information from Mr. Harder that I have set out that would have led Mr. Marzban to suggest that the plaintiff should seek an appraisal done on a premise of fair market value in continued use. My earlier findings on that topic indicate that such an approach would have been misguided, and ultimately would not have advanced her position. Instead, it appears likely they would have considered retaining Universal Appraisal do another appraisal. They would have discussed the likelihood that this appraisal would be higher than the Ritchie Bros. Appraisal, and the uncertainty as to how much higher. They would have considered its costs, and the related costs of having Mr. Harder or another valuator review and approve it, and then provide a new valuation.

[794] I find it likely that they would have discussed the impact of having another appraisal on the settlement negotiations, and decided that it would clearly delay them, and in all likelihood bring them to a halt completely, given the apparently entrenched position of Mr. Newton and Mr. Brewer that they would only negotiate on the Ritchie Bros. values. I am satisfied that this would have led to a discussion of whether obtaining a third appraisal of unknown value and going to trial would advance the plaintiff’s position overall, in the context of the uncertainty of the result and the attendant delays and costs. A trial date had not yet been scheduled. Mr. Marzban would have told the plaintiff that a trial might cost between $100,000 and $300,000 if it was hard-fought and required extensive expert testimony. They would have discussed the uncertainty of the result when a judge is faced with a range of valuations, the fact that Mr. Newton would put forward the Ritchie Bros. Appraisal; that the AA Appraisal, while high, was likely to be discredited; and that the result of a third appraisal at this point was unknown.

[795] Has the plaintiff established on a balance of probabilities that this information would have led her to reject the prospect of negotiating a settlement based on Mr. Harder’s valuation, and instead obtain a third appraisal, knowing that the likely outcome of that course was to proceed to trial? I find that she has not.

[796] I am satisfied that the postulated discussions between Mr. Harder, Mr. Marzban and the plaintiff contain a limited amount of significant information that was not already known to the plaintiff. I find that she already knew from her conversations with Mr. Hubley and Mr. Harder that she had the option of obtaining a third appraisal, its estimated cost, and that Mr. Newton viewed it as irrelevant and would only negotiate on the Ritchie Bros. Appraisal values.

[797] The plaintiff claimed that no one ever told her that that Mr. Newton’s opposition did not preclude her from obtaining a third appraisal and proceeding to trial with a valuation based on it. She said that while she knew that she could have another appraisal done, and she knew she could go to trial, she never understood the relationship between these two steps. She maintained that the defendants insisted that they would use Ritchie Bros. and she did not pursue a third appraisal because she thought she did not have a choice.

[798] I am unable to accept that. There is no evidence that any of the defendants told the plaintiff that she had to use the Ritchie Bros. Appraisal. Mr. Hubley and Mr. Harder clearly left it open to her to provide instructions to obtain a third appraisal if she wished. Moreover, the plaintiff knew that a higher appraisal would increase the value of her shares; this was the only reason to commission another appraisal. She knew that Mr. Newton would not accept a settlement based on a new and higher appraisal. She knew that in that case the only way to resolve her dispute would be to proceed to trial. I find that, regardless of any inadequacies in the advice offered by Mr. Marzban, the plaintiff understood that the purpose of obtaining a third appraisal was to proceed to trial with an enhanced claim.

[799] I accordingly find that the only significant new information that would have emerged from the postulated discussions between Mr. Marzban, Mr. Harder and the plaintiff were first, that another appraisal could be done on a theoretical premise of orderly liquidation value, and second, that the result would likely be higher than the Ritchie Bros. Appraisal, although perhaps not substantially higher.

[800] I am not convinced that the information about the theoretical appraisal premise would have resonated with the plaintiff and been a decisive factor in convincing her that a third appraisal was necessary. The prospect of another appraisal increasing the value of her claim would be a more meaningful piece of information, and the significant question is whether she would have decided to abandon the opportunity to negotiate a settlement in the range of Mr. Harder’s valuation in order to obtain a third appraisal with a higher but uncertain result, and proceed to trial, with the attendant delays, costs and uncertainties.

[801] The plaintiff has not convinced me that she would have done so. While a third appraisal tempted with the prospect of an increased claim, I find that the plaintiff would have been aware that pursuing that course would likely have foreclosed any hope of resolution though a settlement. She would also have known that it introduced additional uncertainties, notably, the result of the appraisal itself, Mr. Newton’s reaction to an increased claim, and the ultimate outcome at trial. I am not satisfied that, in the context I described in the previous section, this additional information would have led the plaintiff to abandon the prospect of a settlement in order to obtain another appraisal and go to trial.

[802] I am satisfied that the plaintiff made a considered decision to negotiate a settlement instead of exploring a third appraisal after discussing this possibility with Mr. Hubley and Mr. Harder, primarily because Mr. Newton was opposed to that course, and she preferred to reach a certain and early settlement with him using the Ritchie Bros. values.

[803] I conclude that the plaintiff has failed to prove on a balance of probabilities that Mr. Marzban’s breach of the standard of care in this regard caused her to pursue settlement instead of proceeding to trial with a case based on a third appraisal.

Failure to fully and adequately warn and advise the plaintiff on October 2, 2001

[804] I have found that Mr. Marzban breached the standard of care at the October 2001 meeting in failing to advise the plaintiff about her claims involving Westwood, the ABG and spousal support in the context of the statutory scheme that governed them. I have also found that while he advised the plaintiff with respect to the settlement in global and general terms, he failed to fully inform her about her options, risks, and the range of likely outcomes at trial by reference to monetary amounts and other relevant facts that had a bearing on her claim. Nor did he review the concessions she had made during the negotiations in the context of the likely outcomes at trial on those items. Where uncertainties in the law or facts, or limited financial disclosure, precluded such advice, I have found that he was obliged to explain this to her, and to inform her about any steps that could be taken to rectify these limitations. That discussion should have included the costs of taking such steps and the impact they might have on the potential settlement, as well as the risks of settling without seeking the missing information. Finally, he should have discussed with her the risks and benefits of proceeding to trial instead of accepting the settlement.

[805] I find the following to be a reasonable representation of the advice that the plaintiff should have received on October 2, 2001.

[806] First, with respect to Westwood, it would have included an explanation of the effect of ss. 56 through 59 of the F.R.A., to the effect that a s. 57 declaration operates as a triggering event, giving each party a half-interest in family assets, and that after such a declaration each party may acquire his or her own assets. These will not be considered family assets so long as there has been no direct or indirect contribution to their acquisition by the other spouse or from the family assets. Thus, if Westwood was using the assets of the ABG, this may support an argument at trial that Westwood is a family asset and that the plaintiff is entitled to a half-interest in it. She would not have such a claim, however, if Westwood was paying the ABG fair market value for any assets it used.

[807] The advice about Westwood would also have included an explanation of the import of ss. 65 and 66 of the F.R.A., the factors in s. 65(1), and the fact that the plaintiff could argue for a reapportionment of the value of the ABG in her favour if she was able to establish that Mr. Newton was devaluing the ABG by misappropriating opportunities from it to Westwood.

[808] She would also have been advised that Westwood might be providing an income stream for Mr. Newton which could strengthen a claim for spousal support under the Divorce Act, although any claim for support remained uncertain as it was dependent on the division of assets.

[809] Finally, the plaintiff would have been told that Mr. Marzban had insufficient information about Westwood to give reliable advice about these potential claims, and warned of the risks of settling her claim without exploring Westwood further through obtaining a List of Documents and a Form 89 Financial Statement, and conducting an examination for discovery of Mr. Newton. This discussion would have included the fact that Mr. Newton was clearly opposed to such a course, a description of the costs and delay attendant on undertaking these steps, speculation on what information might be obtained, and the likelihood that switching to a litigation model at this stage would destroy the present settlement opportunity, and perhaps negate the possibility of any future settlement. This would in turn lead to discussion of the costs and uncertainties of proceeding to trial.

[810] With respect to the ABG, the discussion would again reference ss. 65 and 66 as the starting point, and the plaintiff’s statutory right to a half interest in the company. The only information available as to what that represented in monetary terms was Mr. Harder’s memorandum of April 20, 2001. She would be advised that Mr. Marzban was relying entirely on Mr. Harder for both the financial disclosure related to the ABG and for its value, and that he had not undertaken any independent inquiry into these matters.

[811] Mr. Marzban would ensure that the plaintiff understood that the settlement valued her interest in the ABG at $1.6 million, including her shareholder’s loan of $408,775, and her share of the 2000 bonus which was $182,300. Thus, her shares alone were valued at just over $1 million. Dealing with the likely range of outcomes at a trial, she would be told that Mr. Harder’s valuation valued her shares at $1.3 million, and that the top end of the range for her interest in the ABG based on his numbers was $1.89 million, including her shareholder’s loan and 2000 bonus.

[812] The plaintiff’s concessions with respect to taxes would be raised in the context of the value of the ABG, and an inquiry made as to whether Mr. Newton would sell the ABG in the foreseeable future. On the evidence at trial, I find it likely that the plaintiff would have answered in the negative. She would then have been advised that if she proceeded to trial and Mr. Newton had no imminent or foreseeable plan to sell the ABG, the court would be unlikely to order a deduction of $220,000 from her share of the ABG, although this was a discretionary matter and that outcome was not certain. She would also be advised that a court would not order her to give up her capital gains exemption, which had a value of $100,000 to her.

[813] In that Mr. Marzban had not discussed the valuation with the plaintiff before this meeting, she would be advised that in assessing both the settlement and her best outcome at trial, she was not bound to rely on Mr. Harder’s valuation, and could commission another appraisal and valuation if she was unhappy with his numbers or the settlement. I find that this discussion would follow the lines set out in the preceding section of these reasons. This would lead again to a discussion of the implications of abandoning the settlement and proceeding to trial.

[814] Moving from the high end of her expected outcomes, the plaintiff would be warned that, despite Mr. Harder’s valuation and her right to a half interest in the ABG, it could not be said with certainty that a court would order Mr. Newton to buy her shares at half of Mr. Harder’s value. Valuation is an art rather than a science, and does not produce a single precise number. As well, the court has considerable discretion in dealing with the disposition of a family company. Nothing could be done to reduce these sources of uncertainty in predicting the outcome at a trial.

[815] She would be told that even if Mr. Newton was ordered to purchase her shares, a court may discount the amount she received to represent the value of cash in hand under the principles in Blackett. This could occur if Mr. Newton demonstrated that this outcome placed an unfair burden on him, both in terms of paying for the shares and in assuming all future uncertainty with respect to the prospects of the company. The amount of such a discount was discretionary and difficult to predict.

[816] There would also be discussion about the risk that Mr. Newton would apply to wind up the ABG. She would likely be advised that liquidation of a company will only be ordered in exceptional circumstances in a matrimonial action, based on the authorities at that time that are usefully summarized in the later case of Balic v. Balic, 2006 BCCA 335 at paras. 19-26, leave to appeal ref’d (2007) 366 N.R. 400 (Note). However, she would also be advised that the threat of liquidation remained, as Mr. Newton could bring an application to wind up the ABG under the Company Act independently of the matrimonial proceeding. The plaintiff would have been advised that if he was successful, the liquidation calculations done by Mr. Brewer and Mr. Harder suggested that her interest in the liquidated value of the ABG would fall in a range of $450,000 to $730,000.

[817] Finally, the plaintiff would be advised that while the courts are reluctant to order ex-spouses to keep their shares in a family company and remain in business together, this possibility had to be acknowledged. Such a result represented the worst possible outcome, as it would mean that the plaintiff recovered nothing for her shares, and she would remain in business with Mr. Newton. In all likelihood they would end up in further litigation, seeking to wind-up the ABG or turning to some other corporate remedy under the Company Act.

[818] Having discussed the range of possible outcomes in as much detail as the facts and law permitted, I accept that the plaintiff could be advised that, with respect to the value of the ABG, she could do better or she could do worse than the settlement that had been negotiated.

[819] Turning to the claim for spousal support, the plaintiff would have been advised of the statutory scheme underlying her claim, including the factors set out in s. 15.2(4) and (6) of the Divorce Act. There would have been some inquiry into her circumstances in the context of those factors. The relationship between the division of assets and spousal support would have been explained, and she would have been told that an outcome that gave her substantial assets would likely preclude an award of spousal support, based on the line of authority emanating from Newsom. The proposed settlement was in the range that made a claim for support tenuous, and thus the fact it included a release of her claim for support was not a reason to reject it. The resulting conclusion would be the same as that given by Mr. Marzban: the outcome of a claim for spousal support at trial was uncertain, and would depend on the division of family assets.

[820] With respect to the other concessions made during the negotiations, the plaintiff would be reminded that the settlement did not provide for interest on the outstanding balance for two years, and advised that she would receive interest on any judgment if she proceeded to trial. With respect to draws from the ABG, the plaintiff would be reminded that the total withdrawn by Mr. Newton was uncertain, but had been charged against his shareholder’s loan account. The settlement permitted her to keep her draws of $88,000 by virtue of the retirement allowance, and receive her full shareholder’s loan as well. If the plaintiff viewed this as unfair, approval of the settlement would have to be postponed while Mr. Newton’s draws were investigated further.

[821] With respect to the Start-up Loan of $87,500, the plaintiff would have been advised that there was little likelihood of success in recovering this at trial by way of an argument for reapportionment since the loan had been made almost 14 years ago, and Mr. Newton had done the lion’s share of work in building the ABG, in accord with the principles set out in Lodge v. Lodge (1993), 79 B.C.L.R. (2d) 360.

[822] Finally, I find that a significant portion of the discussion would have centred on weighing the pros and cons of proceeding to trial. On the negative side, this would include discussion of the estimated costs of $100,000 to $300,000, further delays because the trial date of January 2002 was not sustainable, uncertainty of the outcome, and the stress and other personal costs attendant on a trial. As well, the possibility that execution proceedings would be required to enforce any judgment against Mr. Newton, resulting in further costs and delays, would be contrasted with the security offered by the settlement.

[823] On the positive side, the plaintiff would be advised that, if she rejected the settlement, the adjournment of the trial presented the prospect of enhancing her claim. Discovery procedures would provide further financial disclosure, particularly with respect to Westwood. If she wished, she could seek another appraisal and valuation. The valuation could incorporate the results and profit of the ABG’s pending October 31, 2001 year-end in her claim.

[824] Finally, the plaintiff would be told that it is often better to settle for a little less than risk an uncertain result at trial.

[825] The plaintiff says that if she had been advised in this manner, she would have rejected the settlement, instructed Mr. Marzban to undertake financial disclosure and discovery, and ultimately would have recovered substantially more at trial than she received under the settlement.

[826] I will deal only briefly with the role played by the advice about spousal support, and the concessions made during the negotiations other than those dealing with income tax. I am satisfied that Mr. Marzban’s failure to provide more complete advice with respect to these matters had no bearing on the plaintiff’s decision to settle.

[827] While support was not fully discussed, his final advice could be no more than it was: the claim was uncertain and its strength could not be assessed until the asset division was known. I find that this was unlikely to dissuade the plaintiff from accepting a settlement that omitted spousal support. Moreover, the plaintiff knew that she had a claim to spousal support, yet was prepared to accept Mr. Newton’s position that he would not pay support. I find it unlikely that fuller advice on the factors in s. 15.2 would have led to a different result in these circumstances.

[828] Similarly, I find that the failure to fully address the concessions made with respect to interest, draws, and the Start-up Loan was of no consequence. The last had no prospect of success. The plaintiff paid little attention to the first, testifying that she knew that there was no interest under the agreement and that this was more a concern to Mr. Hubley than to her. She was fully aware of the situation concerning the parties’ draws from the ABG, willingly accepted the retirement allowance to cover her draws, and knew that she could challenge Mr. Newton’s draws but had decided not to do so.

[829] I am satisfied that the postulated advice raised two main issues that might reasonably have led the plaintiff to reject the settlement. The first was the uncertainty surrounding Westwood’s potential effect on her claim and the prospect of learning more about this through discovery procedures. The second was the opportunity of obtaining a judgment in excess of $1.6 million for her share in the ABG if she proceeded to trial. In considering the impact that this advice might have had on the plaintiff’s decision to settle or go to trial, it is necessary to determine how much of it was actually new to her.

[830] Dealing first with Westwood, the plaintiff testified that Mr. Newton just told her that it was a management contract or a labour-only contract. As a result, she was unconcerned with its effect on the ABG and did not pursue it with the defendants.

[831] I am unable to accept that. In April 2001, the plaintiff obtained documents that demonstrated that a numbered company of Mr. Newton’s, that soon changed its name to Westwood, had offered to purchase a Bill 13 contract and logging equipment from a logging company in Campbell River for $1.227 million at the end of March 2001. Mr. Hubley’s e-mail to Mr. Harder on April 14, 2001, quoted at paragraph [165] of these Reasons, described her as “livid” about this. It expressed her concerns that Mr. Newton was using the ABG assets to secure financing for this venture, and diverting assets and value away from the ABG, as well as her conviction that he was using the negotiations only as a front to allow him to do what he wanted and reduce her value in the ABG. Mr. Harder’s memorandum of April 20, 2001 drew similar concerns about Westwood to her attention. Paragraph 9 of the affidavit she swore on April 27, 2001 stated:

It has now come to my attention that the Plaintiff is also taking actions which will prejudice my position in these proceedings. Specifically, he has apparently incorporated numbered companies, 607498 B.C. Ltd. (“B.C. Ltd.”) and 612096 B.C. Ltd. (“B.C. 2 Ltd.”), [Westwood], which he is using to divert income from the Company, or operate using assets of the Company. Exhibit “B” is a copy of an invoice from B.C. Ltd. to Duke Point Shake and Shingle Ltd. relating to rental of a truck

[832] I conclude that from the time she first became aware of Westwood, the plaintiff knew that it involved more than a management contract and was concerned that Mr. Newton may be using it to devalue her interest in the ABG.

[833] Further, it is clear that as of April 2001 the plaintiff knew that Mr. Marzban could and should obtain information about Westwood and its activities in relation to her claim. He advised her to bring an application to obtain documents related to Westwood, and she instructed him to do so. I have earlier found that, despite her concerns about Westwood, she instructed Mr. Marzban not to proceed with this application as settlement negotiations had resumed.

[834] During the negotiations, Mr. Brewer, on behalf of Mr. Newton, steadfastly maintained that Westwood would not be included in any settlement. The plaintiff says Mr. Newton also told her that he had set up Westwood in such a way that she would not have access to it.

[835] In July 2001, the plaintiff obtained further documents related to Westwood and its dealings with J.S. Jones. I find her evidence that she did not read these, other than noting that they concerned Westwood, incredible given her earlier level of suspicion and the fact that they included two substantial cheques related to Westwood’s operations. While she brought these to the attention of Mr. Hubley and Mr. Marzban, there is no evidence as to what advice or instructions were given or not given as a result.

[836] Just before concluding the settlement, the plaintiff made some notes in which she assigned a value of $50,000 to Westwood, and stated that her lawyer could obtain information about Westwood’s contract with J.S. Jones. While she was unable to provide any explanation for these notes, I find that they demonstrate an understanding that Westwood had some significant value, and that Mr. Marzban could obtain information about it if she wished.

[837] I conclude that as of October 2, 2001, the plaintiff knew that Westwood may be devaluing her interest in the ABG. She knew that Mr. Newton was resistant to giving her access to it. She knew that Mr. Marzban could obtain information about it if she wished. What that information might be was uncertain. As well, I am satisfied that at the meeting on October 2, 2001 Mr. Marzban raised the exclusion of Westwood from the settlement as a concern, and indicated that this may mean there was something to Westwood. I find that the plaintiff responded by dismissing his concern, saying that she accepted Mr. Newton’s position that it was not part of the deal.

[838] I conclude that, despite her concern that Westwood was in some way devaluing her interest in the ABG, at some point the plaintiff decided to accept Mr. Newton’s position that Westwood would not be a part of any settlement. I find that this decision rested on the contextual considerations I set out earlier, particularly her wish to remain on good terms with Mr. Newton, and her preference to reach a settlement rather than go to trial. The plaintiff has failed to convince me that any deficiencies in Mr. Marzban’s advice about Westwood would have altered that decision.

[839] I have reached a similar conclusion with respect to the plaintiff’s option of proceeding to trial and presenting an enhanced claim for her share of the ABG. I find that at the time she settled her claim, the plaintiff knew that she might obtain more for her interest in the ABG if she went to trial, but the uncertainties as to outcome and her personal considerations led her to accept the settlement instead.

[840] Although the plaintiff testified that she did not know that Mr. Harder had valued her shares at $1.3 million until much later, I am unable to accept that. She had received a copy of Mr. Harder’s valuation that clearly set this out. She had discussed his values with Mr. Hubley. She testified that she chose her goal in the negotiations based on Mr. Harder’s information.

[841] As well, I find that the plaintiff knowingly agreed to a significant deduction of $220,000 from the value of her shares during the negotiations in order to achieve a settlement. I am satisfied that she knew that this was not necessary and that she understood that she could instead stand firm on her target of $2 million and go to trial if she wished. I have earlier found that Mr. Hubley fully explained her options as to this deduction, and reminded her many times that if she did not like the way things were going, she could go to trial.

[842] I have also found that the plaintiff knew that a third appraisal could enhance the value of her claim at a trial, but she decided not to follow that course.

[843] I have found as well that the plaintiff was sufficiently familiar with the ABG that she knew of its pending year-end and the associated practice of declaring an annual bonus. However, I am satisfied that the prospect of waiting for those financial results which, based on the previous year, would have been available in January 2002, and then essentially starting over again in valuing her claim, held little attraction for the plaintiff. This would have involved redoing the valuation for a trial date in late 2002, a costly and impractical option, given her goals.

[844] In short, I find that on October 2, 2001 the plaintiff was aware that there were means of presenting a larger claim for her interest in the ABG at a trial but, regardless of the advice given or not given by Mr. Marzban, had decided not to pursue them. Further, the advice required by the standard of care as to the risks and lower end of the range of outcomes would have made it clear to her that, even if she presented a higher valuation at trial, the result remained uncertain, as did Mr. Newton’s ability to pay a judgment.

[845] I find that the plaintiff’s decision to accept the settlement at the meeting on October 2, 2001 was influenced primarily by the array of personal considerations and uncertainties that characterized her matrimonial dispute. I am satisfied that in reaching that decision she had considerably more knowledge about Westwood, the value of the ABG, and her claim to spousal support than she admitted at this trial. I find that, while she wanted to attain the best outcome possible, it was clear to her that this would be achieved through a settlement by which Mr. Newton purchased her interest in the ABG on terms that provided certainty and security. I accept that the plaintiff was prepared to push Mr. Newton to attain as high a settlement as possible, but I find that she knew his limits and was not prepared to go beyond them and force the matter to trial. I am satisfied that her comment to Mr. Hubley in April that she was concerned that if she sought too high a figure she would not get a settlement leaves no doubt about this. I am satisfied that she agreed to the settlement presented on October 2, 2001 because it fulfilled her requirements, and that any inadequacies in Mr. Marzban’s advice to her about the ABG at that time had no bearing on that decision.

Conclusion with respect to causation

[846] I conclude that the plaintiff has failed to establish on a balance of probabilities that Mr. Marzban’s failure to meet the standard of care caused her to accept the settlement and forego the option of proceeding to trial. The claim against Mr. Marzban and Jenkins Marzban Logan in negligence is accordingly dismissed. As the claim in contract is not dependent on a finding of causation, I find those defendants liable to the plaintiff for breach of contract.

DAMAGES

Damages for breach of contract

[847] It is well established that a plaintiff who has failed to prove that he or she suffered any damages from a breach of contract will nevertheless be entitled to an award for nominal damages. There appear to be three reasons for such an award: deterrence, closure, and expedience. S.M. Waddams, The Law of Contracts, looseleaf, 5th ed. (Toronto: Canada Law Book, 2005) at para. 10-10 provides this rationale for nominal damages:

The judgment has the effect of a declaration of legal rights and may deter future infringements or may enable the plaintiff to obtain an injunction to restrain a repetition of the wrong. The obtaining of nominal damages will also, in many cases, entitle a plaintiff to costs …

[footnotes omitted]

[848] The plaintiff is accordingly entitled to an award for nominal damages.

[849] In considering an appropriate amount, I note that Mr. Justice Hinkson in a recent decision involving lawyer’s negligence considered the authorities and concluded that an award of nominal damages in the amount of $1,000 for breach of contract was justified: Chaster (Guardian ad litem of) v. LeBlanc, 2007 BCSC 1250 at paras. 219-222 [Chaster]. That case had some similarities to this in that it involved allegations that the lawyer’s conduct led the client to accept to accept an improvident settlement. I see no reason to differ from the assessment of Hinkson J.

[850] The plaintiff will accordingly recover $1,000 as damages for breach of contract from the defendants Dinyar Marzban and Jenkins Marzban Logan jointly.

Damages for negligence – is a provisional assessment appropriate?

[851] Since I have found that the plaintiff has failed to prove causation, it is not necessary for me to assess damages for negligence. I appreciate that it can nevertheless be productive in some cases to provide a provisional assessment in the event that there is an appeal of the trial decision and the findings of fact are useful in that context.

[852] I have considered whether it is appropriate to embark on such an assessment in this case and have decided that it is not for the following reasons.

[853] The damages pled are the difference between the settlement amount and the judgment that the plaintiff would have obtained and executed upon had she proceeded to trial. The assessment of that difference is made by conducting a “trial within a trial”, effectively determining the outcome of the plaintiff’s matrimonial trial on the basis of the evidence led and findings made at this trial.

[854] In some cases of lawyer’s negligence, the record is complete and the process straightforward. The judge tries the hypothetical action on an unspoken assumption that the evidence before him or her is the whole of the evidence that would have been before the judge on a real trial, and assesses damages with some certainty: Startup v. Blake and MacIsaac & Co., 2001 BCSC 8 at paras. 96-107; Chaster, at paras. 202-217.

[855] Where the record is incomplete due to the passage of time or other evidentiary difficulties, the process becomes more difficult. That is the case here. Significantly, there is no evidence from Mr. Newton. As the opposing party on the “trial within a trial”, his position and testimony would be critical to a reliable determination of the likely outcome of that hypothetical matrimonial trial. As well, few of the documents that the plaintiff says should have been obtained by the defendants have been produced at this trial, and financial disclosure with respect to Westwood and aspects of the ABG thus remains incomplete.

[856] The seminal case of Kitchen v. Royal Air Force Association, [1958] 2 All E.R. 241 at 251-252 (C.A.) makes it clear that such difficulties do not relieve the court from assessing damages. Nevertheless, I find that there is little to be gained by embarking on an unnecessary and highly speculative assessment of damages in this case.

[857] In reaching that conclusion, I am influenced in part by the fact that during this trial the plaintiff gave indications that she may proceed with an action against Mr. Newton to enforce the terms of the settlement agreement and her rights under the Divorce Act. If she does so, it is my view that such issues are most appropriately determined at a trial in which Mr. Newton has the opportunity to fully participate, and should not be the subject of a provisional assessment of damages here.

CONCLUSION

[858] The action against the defendants Gordon F. Hubley, Bestwick & Partners, Gord Hubley Ltd., D. Jeffrey Harder, and BDO Dunwoody LLP is dismissed.

[859] The plaintiff will recover nominal damages of $1,000 for breach of contract from the defendants Dinyar Marzban and Jenkins Marzban Logan.

[860] The parties may schedule a time with the Registry to address costs if necessary.

“K. Neilson J.”