Court of Appeal for Ontario
Re: Peter Frumusa and Dawn Frumusa (Appellants) –and– Guy Ungaro, Leo Adler and Adler, Bytensky (Respondents)
Before: Catzman, Moldaver and Armstrong JJ.A.
Counsel: Robert D. Malen for the appellants Harry W. McMurtry for the respondent Guy Ungaro Joyce Harris for the respondent Adler, Bytensky
Heard & Released Orally: February 22, 2006
On appeal from the order of Justice Thea P. Herman of the Superior Court of Justice, dated May 20, 2005 made at Toronto, Ontario.
Endorsement
1We would dismiss the appeal for the reasons given by Herman J., with which we are in substantial agreement.
2We would add that para. 12 of the amended statement of claim does not meet the threshold test for pleading breach of fiduciary duty in respect of a solicitor/client relationship. In that regard, we specifically agree with the following passage from the reasons of Herman J., in which she said:
a breach of fiduciary duty occurs where the relationship of trust and loyalty between the lawyer and the client has broken down, that is, situations in which the lawyer has been dishonest, is in a position of conflict of interest or has divided loyalties. The breach of fiduciary duty does not otherwise extend to situations in which the quality of advice or representation is at issue.
3There are no other allegations in the amended statement of claim that support a claim for breach of fiduciary duty.
4Accordingly, the appeal is dismissed. The respondents are entitled to their costs. We fix the costs of the respondent Ungaro in the amount of $10,000, and the costs of the respondent Adler in the amount of $10,000. Both amounts are inclusive of disbursements and GST.
