DATE: 20050920
DOCKET: C41431
COURT OF APPEAL FOR ONTARIO
RE:
JOHN FREDERICK LENZ (Plaintiff/Appellant) –and- BROADHURST MAIN, PETER A. BROADHURST, MARY J. MAIN AND MITCHELL HOUZER (Defendants/Respondents)
BEFORE:
LABROSSE, SHARPE and ROULEAU JJ.A.
COUNSEL:
Chris Dockrill and Robert J. McComb
for the appellant
Philip M. Epstein and Aaron M. Franks
for the respondents
HEARD & RELEASED ORALLY:
September 16, 2005
On appeal from the judgment of S.G. Himel J. of the Superior Court of Justice, dated January 24, 2004.
E N D O R S E M E N T
[1] The appellant (the“client”) appeals the dismissal of his action for solicitor’s negligence against the respondent (the “solicitor”).
[2] The trial judge found that at the time that the client consulted the solicitor, the client was under tremendous pressure involving his marriage, his children, the elders of his religion, his work and his expecting new partner. His life was in shambles and he believed that a quick divorce that would allow him to remarry was the answer to his problems. A December 20, 1992 wedding date was set. In order to achieve this purpose, the client needed the full cooperation and consent of his wife who had presented him with a separation agreement prepared by a lawyer.
[3] The solicitor told him not to sign the agreement because it was unfair and improvident. The client received the same advice from his accountant. Against this advice, he executed the separation agreement as he did not want to risk upsetting his wife by making changes to the agreement.
[4] After he executed the agreement, the client commenced proceedings to set it aside. These proceedings were either settled or unsuccessful. Eventually he commenced this action against the solicitor.
[5] All the findings of the trial judge are well supported by the evidence. In particular, the evidence supports the findings that:
the client was under pressure to obtain a divorce and marry his new partner;
the retainer was to obtain a speedy divorce so that he could marry;
the client did not want any terms changed in the agreement because he needed his wife’s cooperation in securing the divorce;
the client signed the separation agreement after being advised by the solicitor that it was unfair; and
the evidence of the solicitor’s expert witness was the appropriate standard of care.
[6] Finally, the trial judge also found that the client had failed to prove that he had suffered any damages.
[7] We see no basis to interfere and would dismiss the appeal with costs fixed at $30,000.00.