Court File and Parties

Court of Appeal for Ontario Date: 20211101 Docket: C68943

Doherty, Miller and Sossin JJ.A.

Between:

Theoktiti Dimakis by her litigation guardian, Konstantine Dimakis, Theoktisti Dimakis by her litigation guardian, Konstantine Dimakis, Ekaterini Dimakis by her litigation guardian, Konstantine Dimakis, Eleftherios Dimakis by his litigation guardian, Konstantine Dimakis, and Konstantine Dimakis Plaintiffs (Appellants)

And:

Cathleen Vitucci, William Vitucci, Kristi Collins, and Lancaster, Brooks & Welch, LLP Defendants (Respondents)

Counsel: Clifford Lloyd, for the plaintiffs (appellants) Michael R. Kestenberg, for the defendants (respondents) Kristi Collins and Lancaster, Brooks & Welch, LLP Michael J. Valente, for the defendants (respondents) Cathleen Vitucci and William Vitucci

Heard and released orally: October 25, 2021

On appeal from the decision and order of Justice Parayeski of the Superior Court of Justice, dated December 20, 2020.

Reasons for Decision

[1] The appeal is dismissed. We are in agreement with the first reason given by the summary motion judge for dismissing the claim (see Reasons, at para. 43). In the circumstances in which a discovery was conducted in accordance with the terms of a court direction, there can be no claim in negligence or otherwise against a lawyer for conducting the discovery in accordance with those terms despite the unfortunate event that occurred during the discovery.

[2] We need not address the question of the applicability of absolute privilege.

[3] We would grant leave to appeal the costs order, but in our view, the order made falls within the scope of the summary motion judge’s broad discretion and we would not interfere with the order made by him. Consequently, the appeal is dismissed. Leave to appeal costs is granted but that appeal is also dismissed.

[4] The parties have agreed on the costs of the appeal. Costs to each of the respondents in the amount of $15,000, inclusive of disbursements and relevant taxes.

“Doherty J.A.”

“B.W. Miller J.A.”

“L. Sossin J.A.”