Commercial Litigation Lawsuits: Do NOT Represent Yourself
Successful business leaders are often intelligent, hard-working, and confident individuals. Unfortunately, at times their confidence may inflate their egos.
In the recent case of McMillan v Bergman, 2021 BCSC 1360, failing to appreciate the magnitude of a lawsuit cost the defendant substantially. In this case, the defendant represented himself as a “self-represented litigant”, otherwise referred to as a party to an action who is not represented. This was a commercial dispute between an investor (the plaintiffs) and a property developer (the defendant).
Upon filing a lawsuit, the defendant failed to reply to the plaintiffs’ lawsuit. After sometime, the plaintiffs obtained default judgement against the defendant. At the concluding hearing, as Madam Justice Forth writes:
“Mr. Bergman attempted to give evidence about a number of different issues. The plaintiffs objected on the basis that there was no affidavit evidence filed and they had no notice of the evidence that Mr. Bergman was giving. I advised Mr. Bergman a number of times that it was not fair and not in accordance with proper procedure for him to simply “tell his story” without putting before the Court sworn evidence which was served on the plaintiffs. I note that a self-represented litigant should be given some leeway but they must still comply with the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules]. As our Court of Appeal has noted, “self-represented litigants do not have ‘some kind of special status’ that allows them to ignore rules of procedure”: 0927613 B.C. Ltd. v. 0941187 B.C. Ltd., 2015 BCCA 457 at para. 64. The Statement of Principles on Self-Represented Litigants and Accused Persons, (Ottawa: Canadian Judicial Council, 2006) “imposes an obligation on self-represented parties to be respectful and familiarize themselves with the relevant practices and procedures of the court process”: 0927613 B.C. Ltd. at para. 65.”
Ultimately, the Court ordered the following in favour of the plaintiffs (including punitive damages):
The defendants…pay to the plaintiffs the sum of $156,790.72 being damages for deceit, breach of trust, and breach of fiduciary duty.
The defendants…pay to the plaintiffs the sum of $65,000, being punitive damages.
…
The defendants…pay pre-judgement interest to the plaintiffs on the sum of $200,000 pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79 commencing on June 20, 2016 to the date that the sum of $43,209.28 was paid to them. After that date the plaintiffs are entitled to pre-judgment interest on the sum of $156,790.72 to the date of this order.
The plaintiffs are also entitled to pre-judgement interest on the award of punitive damages...
The defendants…pay to the plaintiffs the cost of this application and the action on scale B.
If you require assistance in prosecuting or defending a commercial litigation claim, please touch base with asap and more so, please do not represent yourself.
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