Complaints, Lawyer Discipline and Public Hearings

Summary of Decision on Facts and Determination

Gerhardus Albertus Pyper

Surrey, BC

Called to the bar: December 9, 2002

Discipline hearing: July 31, 2018

Panel: Joost Blom, QC (chair); Robert Smith

Decision issued: September 25, 2018 (2018 LSBC 28)

Counsel: Kieron Grady for the Law Society; no one appearing on behalf of Gerhardus Albertus Pyper

PRELIMINARY MATTERS

The Respondent, Gerhardus Albertus Pyper, advised the hearing administrator about a month before the hearing that he would not “ fly back to Canada” in order to attend the hearing. The hearing panel accepted proof that Pyper had been properly notified of the hearing date and concluded that it was in the public interest to proceed in his absence.

Pyper applied for dismissal or a stay of the citation on grounds of unreasonable delay. The panel found that there were no valid grounds for a dismissal or stay on the basis of either abuse of process or prejudice to Pyper. The panel found that Pyper was himself responsible for most of the delay and there was no evidence of prejudice caused by delay.

FACTS

In August 2011 a client retained Pyper to commence a civil action on his behalf, claiming that he had been assaulted at a soccer game. The alleged assailant was subsequently charged criminally with the assault.

Pyper filed a notice of civil claim with the registry in November 2011, and the following month was advised that the process server had been unsuccessful in serving the notice.

By July 2012 nothing had happened on the file, and Pyper sent his client a letter requesting permission to hire a private investigator to serve the notice of claim. The client did not receive the letter before the notice of civil claim expired in November 2012.

In February 2013 the client met with Pyper, advised Pyper that the criminal trial was scheduled for July that year, and said he wanted to proceed with the civil claim. Pyper’ s assistant attended the trial and served the alleged assailant with the notice of civil claim, even though the time for serving the notice expired and the two-year limitation period for the claim had expired.

The alleged assailant was acquitted at trial for lack of proof that he had assaulted Pyper’ s client.

In July 2013 another lawyer notified Pyper that the alleged assailant had retained the other lawyer with respect to the civil claim. The other lawyer asked Pyper if there had been an order renewing the time of service for the notice of civil claim and, if not, whether Pyper intended to seek such an order.

In August 2013 Pyper improperly applied for and obtained default judgment against the alleged assailant of his client, when the limitation period for the claim had already expired.

In November 2013 a Supreme Court of BC justice declined to hear Pyper on an application to set aside the default judgment and renew the notice of civil claim on the basis that it was not proper for Pyper to appear since he was responsible for the problem.

In February 2014 a third lawyer advised Pyper that Pyper’ s client had retained the lawyer to pursue the civil claim. The other lawyer said he understood that a missed limitation period had extinguished the client’ s claim and requested Pyper’ s files concerning the client. In April, on the new lawyer’ s application, the default judgment was set aside and the notice of civil claim was renewed for six months. The new lawyer advised the client that chances of success in the civil claim were fifty-fifty, at best. The new lawyer sent counsel for the alleged assailant an offer of settlement and notice of a two-day trial. The alleged assailant did not respond. The client decided he did not have the financial resources to pursue the matter further.

DETERMINATION

The hearing panel found that Pyper had failed to serve his client in a manner that would be expected of a competent lawyer. Pyper should have been aware of the expiry of the notice of civil claim and, since it was Pyper’ s responsibility that the notice had expired, he was in a conflict between his duty to the client and his own interest in minimizing his responsibility for the notice not having been served within one year. He had a duty to recommend that the client seek independent legal advice about the errors he had made in handling the client’ s claim. He failed to do so for more than a year.

The panel determined that Pyper’ s actions constitute both professional misconduct and, in the case of failing to provide adequate service, incompetent performance of duties.

2018 LSBC 28 Decision on Facts and Determination