Court of Appeal for Ontario
Between:
John Joseph aka John D’Souza and Peter D’Gama Plaintiffs/Appellants
and
Ritchie James Linton, Robert Jagielski, Krystyna Woldanska, Isabella Woldanska, Agnieszka Woldanska, Karolina Gill, Bobby Mukhtiar Gill, Polish Credit Union, Royal Bank of Canada, A. Farber & Partners Inc., The Law Society of Upper Canada and The Superintendent of Bankruptcy Defendants/Respondents
Before: Sharpe, Blair and Rouleau JJ.A.
Counsel:
Joseph Markin, for the appellants
Adrienne Lei, for the respondents
Heard & released orally: January 5, 2012
On appeal from the judgment of Justice Andra M. Pollak of the Superior Court of Justice dated June 15, 2011.
ENDORSEMENT
1The appellants argue that the motion judge erred in striking out the statement of claim under Rule 21 as against the Law Society of Upper Canada. The appellants’ claim relates to the actions of lawyers who acted for other parties. They argue that the Law Society of Upper Canada is liable in negligence for failing to take appropriate action against those lawyers. There is nothing in the statement of claim or the reply to suggest that the appellants had any contact with the Law Society of Upper Canada. They assert the claim as members of the public.
2In our view, the claim is precluded by the decision of the Supreme Court of Canada in Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562.
3We do not accept the submission that the later decision of the Supreme Court in Finney v. Barreau du Québec, 2004 SCC 36 assists the appellants. The decision in Finney turned on the fact that the plaintiff had filed several complaints against the solicitor and that the Barreau dealt with those specific complaints in a seriously careless and reckless fashion. The required element of proximity that arose in Finney because of the direct contact between the plaintiff and the Barreau is absent in this case.
4There is nothing in the record or the submissions made before us to suggest that the proximity issue could be rectified by amending the pleading. Accordingly, this is not a case to grant leave to amend.
5For these reasons, the appeal is dismissed. Costs to the respondent fixed at $4,445.77 inclusive of disbursements and HST.
“Robert J. Sharpe J.A.”
“R.A. Blair J.A.”
“Paul Rouleau J.A.”
