COURT OF APPEAL FOR ONTARIO
Laskin, Moldaver and Armstrong JJ.A.
BETWEEN:
1013952 Ontario Inc., operating as the “Silverado Restaurant and Nightclub” and Cuc Thi Nguyen, Executrix of the Estate of Binh Nguyen
Plaintiff
And
Julian Gershon Sakinofsky
Defendant and Domenic A. Rosso Third Party (Appellant) and Julian Gershon Sakinofsky Defendant to Counterclaim and Lawyers’ Professional Indemnity Company, Himelfarb Proszanski LLP, and Joseph Rebelson Gouveia Fourth Parties (Respondent)
Hartley M. Isenberg for the appellant Domenic A. Rosso
Gavin J. Tighe and Anna Husa for the respondent Joseph Rebelson Gouveia
Heard: March 25, 2010
On appeal from the order of Regional Senior Justice Helen Pierce of the Superior Court of Justice dated November 5, 2009, dismissing a fourth party claim on a motion for summary judgment and from the costs order dated January 15, 2010, with reasons reported at 2009 ONSC 60783.
By The Court:
1The appellant Domenic Rosso appeals from the order of Pierce R.S.J. dated November 5, 2009, granting summary judgment in favour of the respondent Joseph Gouveia and dismissing Rosso’s fourth party claim against Gouveia.
2Rosso further appeals from the costs order dated January 15, 2010, in which costs were assessed against him on a substantial indemnity basis in the amount of $25,000 inclusive of disbursements and G.S.T.
3At the conclusion of argument, we advised the parties that we were dismissing the appeal from the order granting summary judgment and that we were reserving our decision on the costs award. Our reasons on both of these matters follow.
The Order Granting Summary Judgment
The Order Granting Summary Judgment
4Our reasons for dismissing the appeal granting summary judgment in favour of Gouveia may be stated briefly.
5The fourth party claim against Gouveia has its origin in the dismissal of an action brought by the plaintiffs 1013952 Ontario Inc. and Cuc Thi Nguyen against their insurers in the wake of a fire loss. Following the dismissal of that action, the plaintiffs commenced an action against Julian Sakinofsky, their former solicitor, for allegedly missing court-imposed deadlines that resulted in the action being dismissed. Sakinofsky, in turn, commenced a third party action against Rosso, his law clerk, for contribution and indemnity. Upon being served with that claim, Rosso commenced a fourth party claim against Gouveia for contribution and indemnity. It is that claim which forms the subject of this appeal.
6In his fourth party claim against Gouveia, Rosso alleged that at all material times, pending the dismissal of the fire loss action, Gouveia actively participated in the fire loss file and assisted Sakinofsky, initially as an articling student and later as a first year associate in Sakinofsky’s firm. Rosso further alleged that in Gouveia’s capacity as an articling student and first year associate, he had an obligation to monitor the files of his principal Sakinofsky, and to ensure that Sakinofsky met the court-imposed deadlines under which the fire loss action was to proceed. Rosso alleged that Gouveia failed in this regard. He further alleged that at all material times pending the dismissal of the fire loss action, Sakinofsky was not attending to his practice because he was preoccupied with personal matters which were known to Gouveia. According to Rosso, Gouveia had an obligation, which he did not meet, of reporting Sakinofsky’s failure to attend to his practice to the Law Society.
7On Gouveia’s motion for summary judgment seeking the dismissal of Rosso’s fourth party claim, the motion judge refused to admit three affidavits, which Rosso sought to file in the midst of the proceeding. She did so because the affidavits in question were served on Gouveia after he had been cross-examined on his affidavit and in any event, she considered the information contained in the three affidavits to be irrelevant. Rosso seeks to challenge that ruling on appeal.
8Assuming, without deciding, that the motion judge’s refusal to admit the contested affidavits constitutes a final order, we see no error in her analysis or conclusion and would not give effect to this ground of appeal.
9Turning to the main point on appeal, the motion judge wrote extensive reasons for dismissing Rosso’s fourth party claim. She found, first, that Gouveia did not continue working in Sakinofsky’s firm beyond September 2001. This date was critical, she explained, because the order setting out a timetable for the progress of the fire loss action was set after that time. Thus, the motion judge concluded, Gouveia could have had no duty of care to the plaintiffs at the time the order was made or thereafter. The motion judge also treated as conjecture Rosso’s evidence concerning Gouveia’s involvement in the fire loss action. Whether she exceeded her role on the summary judgment motion in making those findings, we need not finally decide.
10The motion judge went on to dismiss Rosso’s fourth party claim on the ground that the entire claim against Gouveia was misconceived. We agree. To the extent, if at all, that Gouveia may have been negligent in handling the fire loss claim, Sakinofsky was responsible for Gouveia and therefore, a fourth party claim was uncalled for; Rosso should have simply pleaded this as a defence to the third party action against him. In short, Rosso had no cause of action against Gouveia in the circumstances and the motion judge was correct in allowing Gouveia’s motion for summary judgment.
The Costs Order
The Costs Order
11The motion judge awarded costs against Rosso on a substantial indemnity basis. In doing so, she placed considerable emphasis on the fact that Rosso’s pleading and his affidavit contained “scandalous allegations about the behavior and personal life of … Sakinofsky which [were] irrelevant to the negligent claims against him.” In the same vein, she was critical of Rosso for maligning Gouveia’s reputation by suggesting that he was complicit in Sakinofsky’s negligence and/or improper conduct and that he failed in his obligation to report Sakinofsky to the Law Society.
12The motion judge provided a second reason for ordering costs on a substantial indemnity basis. She was critical of Mr. Isenberg, Rosso’s counsel, for failing “in his duty to the court to fairly and accurately state the evidence.”
13With respect, we disagree with both of those findings.
14Commencing with the complaint against Mr. Isenberg, the record does not support a finding that he misstated the evidence. Having reviewed the entire record, it is our belief that the motion judge may have inadvertently misconstrued the import of Mr. Isenberg’s submissions. Be that as it may, Mr. Isenberg did not mislead the court and his submissions accurately reflect the evidence that was contained in Mr. Rosso’s affidavit and his cross-examination.
15As for the scandalous allegations against Sakinofsky in Rosso’s pleading and affidavit, as well as against Gouveia by implication, while we accept that some of the language used was indelicate and could have been framed in more discreet terms, we are not persuaded that the attack on Sakinofsky’s conduct was necessarily irrelevant to the allegations of negligence against him.
16It follows, in our view, that there was an insufficient basis for awarding costs on a substantial indemnity scale. That said, we should not be taken as back-tracking from our observation that the entire fourth party proceeding was ill-conceived and it should never have been brought. We find this troubling.
17In the end, we would grant leave on the costs appeal and reduce the costs to $17,000 inclusive of G.S.T. and disbursements.
Costs of the Appeal
Costs of the Appeal
18The respondent, in what can only be described as a very generous gesture, only seeks costs of the appeal in the amount of $1,000 inclusive of G.S.T. and disbursements. An order will go accordingly.
Signed: “John Laskin J.A.”
“M. J. Moldaver J.A.”
“Robert P. Armstrong J.A.”
RELEASED: “JL” May 17, 2010