DIVISIONAL COURT FILE NO.: 227/02

DATE: 2003/04/11

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BLAIR R.S.J., BROCKENSHIRE and SOMERS JJ.

B E T W E E N:

FRANK STEFAN STEKAR

Mr. Derek J. Bell, for the Appellant (Plaintiff)

Appellant (Plaintiff)

• and -

COREY A. GILMORE and GILMORE & GILMORE

J. Daniel Dooley, for the Respondents (Defendants)

Respondents (Defendants)

HEARD: April 8, 2003

E N D O R S E M E N T

BROCKENSHIRE J.:

1This is an appeal from the decision after trial of Madam Justice Wilson, dated December 18, 2001, who dismissed the claims of the plaintiff that the negligence of his lawyer in advising him, and representing him at his bail hearing, resulted in his being held in jail for 30 days, and who assessed his damage claim, despite the result, at $2,500.

2The case was pleaded, conducted and argued at trial on the basis that either the defendant’s negligence was the sole cause of the plaintiff’s detention, or he was the author of his own misfortune. Before us, counsel for the appellant (not counsel at trial) argued extensively that Wilson J. should have considered the possibility of contributory negligence, and apportioned blame; failing which, it was argued, the defendant was entitled to recover, given the findings of negligence. She did not do this, and did not consider case law (which was not given to her) such as Athey v. Leonati, 1996 183 (SCC), 140 D.L.R. (4th) 235 (SCC). We find, in reviewing the detailed reasons for her decision, that she did not have to. Her conclusions that there was no sufficient causal connection between the impugned acts of the defendant and the results of the bail hearing are well supported by the evidence.

3Two points were argued before us on the issue of liability.

4The first was the failure of the lawyer to advise the plaintiff that taping of audio communications was illegal. The lawyer did not do that, and Wilson J. found that was negligent. However, the plaintiff’s later troubles with the law had nothing to do with audiotaping – he was charged with being in his wife’s home in breech of a recognizance, which attendance allegedly related to setting up a system for videotaping her activities. The evidence was that videotaping, at the time, was legal. Her finding was that the negligence found had nothing to do with the plaintiff’s detention

5The second was that the lawyer failed to insist on the presentation of the videotape, taken from the wife’s home by the police, on which they said they recognized the plaintiff, to the bail court. Wilson J. concluded that this could be characterized as a mere error in judgment, rather than negligence, per the test in Bertucci v. Marchioni, [2001] O.J. No. 2198 (S.CJ.), but then went on to consider whether, if it could be considered to be negligent, it would have made any difference at the bail hearing, and concluded, on the balance of probabilities, that it would not.

6The third issue raised was the assessment of damages. No evidence was called as to the alleged suffering of the plaintiff as the result of his detention, or as to any financial loss, and as Wilson J. pointed out, he later, at another criminal hearing, received a benefit from his “time spent”.

7The fourth issue raised related to the application of Charter principles to damage claims relating to detention. We conclude this argument is not helpful in the case before us.

8Wilson J. had ample evidence before her in this 8-day trial, including considerable expert evidence, on which to found her decisions. She considered it carefully, in her lengthy decision, and concluded that the defendants were not responsible for the detention of the plaintiff. We are not persuaded that she was “clearly wrong” in her conclusions, or that she acted on a wrong principle or disregarded or misinterpreted material evidence, in coming to the conclusions that she did. We find no palpable or overriding error in her findings, including her findings on causation.

9This appeal is dismissed. Costs to the respondents fixed at $10,000 plus disbursements plus GST.