Court File and Parties
COURT FILE NO.: 386/08
DATE: 20090706
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
ROBERT FREEDLAND
Plaintiff
(Appellant)
- and -
MARIN, EVANS & BELL
Defendant
(Respondent)
In Person
Daniel Iny, for the Respondent
HEARD at Toronto: July 6, 2009
Oral Reasons for Judgment
JENNINGS J.: (Orally)
[1] Mr. Freedland appeals from the judgment of Godfrey J. of the Toronto Small Claims Court dated July 4, 2008 dismissing his claim for negligence against the defendant solicitors.
[2] Ms. Evans, of that firm, was retained by Mr. Freedland to sue Homelife Vision Realty for breach of fiduciary duty as a result of Mr. Freedland buying a share in a co-operative in Toronto for $73,500.00. Mr. Freedland claimed that the agent for Homelife, one Shapiro, failed to advise him that similar units in the same building were selling at the time for $55,000.00. That action against Homelife settled on the day of trial for $13,000.00.
[3] The plaintiff alleges that his solicitors, the defendant, were negligent and incompetent in the handling of his case.
Standard of Review
[4] Mr. Freedland agreed that in order to succeed on this appeal he must show that the trial judge erred in law or made a palpable and overriding error in a finding of fact.
Analysis
[5] The trial judge made clear findings of fact in paragraphs 1 through 9 on pages 3, 4, and 5 of his Reasons. There was ample evidence to support those findings.
[6] Mr. Freedland does not accept the findings. In his forceful argument he accused the trial judge of being biased against him because, I gather, the trial judge preferred the evidence called by the defendant over Mr. Freedland’s testimony.
[7] It was open to the trial judge to accept the defendant’s evidence. Before me, Mr. Freedland submitted with much eloquence and considerable passion that Ms. Evans was dishonest in her testimony. He claimed that she spent over two hours “browbeating” him into a settlement; that she “threw him under a bus”, “she railroaded me”, that she deceived him because she had another trial going on, and that her conduct towards him was “despicable”.
[8] All of that was argued before the trial judge, who found against Mr. Freedland on the evidence that he heard. The trial judge said at page 7 of his Reasons:
Unfortunately for the plaintiff, he had convinced himself of the success of his case based on his own observations without taking into consideration that he was required to convince the trial judge, an independent third party of the truth of his position. This is not an unusual problem for many litigants. Mr. Freedland made many assumptions about Mr. Shapiro … without adequate supporting proof to verify his assumptions. He did not want to accept the opinion of the defendant because he was so convinced that the Homelife’s chance of success was equivalent to Homelife winning the lottery. Anything less than a clear $10,000.00 net success was failure in the plaintiff’s mind, and any other such result could only be the fault of his solicitor or the trial judge. Since the trial judge never heard the case, the fault must be that of his solicitor.
I disagree. I find that the defendant gave the plaintiff competent legal advice, advised the plaintiff of her position as the evidence disclosed itself to her, and sought out the proper witnesses and supporting documentation.
[9] I had no success in explaining to Mr. Freedland that I could not re-try the case, but only determine whether reviewable error had been made.
[10] There were no palpable or overriding errors of factual findings in that they were all supported by the evidence heard by the trial judge.
[11] The trial judge appreciated the legal test, that solicitors are not held to a standard of perfection, and that errors in judgment do not constitute negligence (Reasons, page 6).
[12] In applying the facts to the law, the trial judge preferred the evidence of the defendant’s expert to that of Mr. Freedland’s expert. The trial judge was entitled to do so.
[13] Accordingly, the appeal must be dismissed. Having had submissions from counsel and bearing in mind the amount at issue, I fix costs at $5,000.00 inclusive of disbursements and GST, payable by Mr. Freedland to the respondents forthwith.
JENNINGS J.
Date of Reasons for Judgment: July 6, 2009
Date of Release: July 8, 2009
COURT FILE NO.: 386/08
DATE: 20090706
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
ROBERT FREEDLAND
Plaintiff
(Appellant)
- and -
MARIN, EVANS & BELL
Defendant
(Respondent)
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: July 6, 2009
Date of Release: July 8, 2009