CITATION: 1401337 Ontario Ltd. v. MacIvor, 2012 ONSC 99
DIVISIONAL COURT FILE NO.: DC-11-009 DATE: 2012-02-13
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
P.C. Hennessy, C.A. Tucker and D.C. Shaw JJ.
BETWEEN:
1401337 ONTARIO LTD. o/a CKS CONSULTING Plaintiff (Respondent)
– and –
MACIVOR HARRIS RODDY LLP Defendant (Appellant)
Derek Zulianello, for the Plaintiff (Respondent)
Michael Harris, for the Defendant (Appellant)
HEARD: December 5, 2011 (Thunder Bay)
DECISION ON APPEAL
Hennessy J.
[1] This is an appeal from the judgment of Wright J. dated February 9, 2011, in a dispute between a consulting firm and a law firm. The consulting firm sought payment from the law firm for forensic accounting services rendered at the request of a now deceased solicitor of the appellant law firm.
[2] The issue before the court at trial and on the appeal is whether s. 13 of the Evidence Act, R.S.O. 1990, c.E.23, should be extended to provide protection to persons outside of the heirs, next of kin, executors and administrators or assigns. On this appeal, the appellant argued that the judge erred by not extending s. 13 of the Evidence Act to require the plaintiff consulting firm to provide corroborating evidence that the law firm was responsible for the account. The trial judge declined to extend the protection of the Evidence Act and awarded judgment against the law firm. The law firm appeals from that decision and argues that the trial judge made an error of law.
Background
[3] The facts as found by the trial judge are not in dispute. Mr. Buday was a client of the law firm MacIvor Harris Roddy, a limited liability partnership. Mr. Roddy, a partner of the firm, acted for Mr. Buday with respect to a tax dispute with Canada Revenue Agency. Mr. Roddy contacted the firm CKS Consulting (“CKS”) and requested assistance on the Buday file. CKS had expertise in forensic accounting. Mr. Roddy met with Ms. Salo from CKS and advised that he had a file which required her expertise. Mr. Buday was present in May 2008 for part of the first meeting between the lawyer and Ms. Salo. Mr. Buday brought his documents which had to be sorted and assessed. There were no notes of this meeting. Ms. Salo did not receive a retainer letter. However, Ms. Salo worked on the file until sometime in June 2008. The consulting firm rendered an invoice to the law firm on July 16, 2008. It was not paid. In October, Mr. Roddy and Ms. Salo exchanged email correspondence regarding the outstanding invoice and the client’s request for some of the documents. Shortly after this correspondence Mr. Roddy died. The consulting firm sought payment of their invoice from the law firm.
[4] The law firm took the position that Mr. Buday was the client of the consulting firm and that the invoice should have been directed to him. They argued that there was no agreement between Ms. Salo and Mr. Roddy that the law firm would be responsible for the invoice.
[5] The matter proceeded to trial. Ms. Salo gave evidence on behalf of CKS with respect to her understanding of the retainer. She stated that she was retained by the law firm in order to ensure that her work was protected by solicitor-client privilege. The trial judge accepted this evidence and found that the law firm was liable for her account. He rejected the argument that Mr. Roddy was a principal for the client Buday.
[6] The law firm argued that s. 13 of the Evidence Act, required the consulting firm to bring evidence to corroborate the evidence of Ms. Salo and that in the absence of corroborating evidence the trial judge could not find against the defendant law firm.
Standard of Review
[7] The standard of review on a question of law is correctness. (Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.J. No. 31 (S.C.C.). The issue of whether the scope of protected persons covered by the protection of s. 13 of the Evidence Act should be expanded to include partners is a question of law. The standard of review is correctness.
Appellant’s Position
[8] The appellant law firm argued that the evidence of Ms. Salo regarding the business arrangement between her and Mr. Roddy had to be corroborated pursuant to s. 13 of the Evidence Act. Although they also argued that Mr. Roddy was the principal for Mr. Buday, the statutory argument was the primary argument.
Actions by or against heirs, etc.
- In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgment or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence. (Evidence Act, R.S.O. 1990, c. E.23)
[9] It is conceded that the defendant law firm does not fall within the category of heir, next of kin, executors, administrators or assigns of Mr. Roddy, the deceased. There is no argument that Ms. Salo’s evidence was not corroborated.
[10] Counsel for the law firm argued that there was judicial precedent expanding the scope of persons listed under the section and that there were good policy reasons to expand the list of protected persons. The appellant relied upon the decision in Canadian Flexi Drills Corp v. Smith [2002] O.J. No 3497 (S.C.J.) where Pitt J. rejected the testimony with respect to an agreement between the defendant and the deceased both on the grounds of credibility and on the grounds of lack of corroboration as required by s. 13 of the Evidence Act. One of the plaintiffs’ in that case was the widow of deceased (para. 3), hence the court could rely on the statutory requirement for corroboration of the defendant’s evidence. This case is not helpful to the appellant. The trial decision was overturned on appeal at the Divisional Court, (Canadian Flexi Drills Corp v. Smith [2004] O.J. No. 658 (Div. Ct.) which did not comment on this statement.
[11] This court does not have authority to extend the protection of s. 13 of the Evidence Act to classes of persons not listed in the section. Even if we had such authority, there is no compelling policy reason to expand the scope of protected persons. There is an obvious policy reason for providing evidentiary protection in actions against heirs, next of kin, executors, administrators or assigns of a deceased person. The statute protects this group from claims against the deceased of which they have no knowledge and cannot defend. Their status as persons responsible for or connected to the estate makes them especially vulnerable to uncorroborated claims. As a result of this vulnerability, this class of persons is provided with some protection in the form of an extra evidentiary requirement. There is no parallel to the case before the bar.
[12] For these reasons the appeal is dismissed.
[13] If the parties cannot agree on costs they may make written submissions to us of no more than two pages. Submissions are to be filed with the trial coordinator in Thunder Bay as follows: by the respondent within ten days of receipt of the decision and by the appellant within 15 days of receipt of the decision.
“Original signed by” Hennessy J.
“Original signed by” Tucker J.
“Original signed by” Shaw J.
Released: 2012-02-13
CITATION: 1401337 ONTARIO LTD. v. MacIvor, 2012 ONSC 99 DIVISIONAL COURT FILE NO.: DC-11-009 DATE: 2012-02-13
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D. Shaw, A. Tucker and P.C. Hennessy
BETWEEN:
1401337 ONTARIO LTD. o/a CKS CONSULTING Plaintiff (Respondent)
– and –
MACIVOR HARRIS RODDY LLP Defendant (Appellant)
DECISION ON APPEAL
Released: 2012-02-13