Court File and Parties

Court File No.: CV-12-468156 Date: 2017-07-12 Superior Court of Justice - Ontario

Re: GARFIELD ANTHONY HIBBERT, Plaintiff And: CARLIN McGOOGAN, Defendant

Counsel: Vivek David, for the Plaintiff Michael Kestenberg, for the Defendant

Before: Monahan, J.

Heard: July 10, 2017

Endorsement

[1] The plaintiff, Garfield Anthony Hibbert (“Hibbert”) had commenced several actions and subsequently retained Carlin McGoogan (“McGoogan”), a lawyer, to represent him. Hibbert alleges that McGoogan was negligent while representing him in the various actions.

[2] It is McGoogan’s position that Hibbert has failed to prove that McGoogan was negligent and has also failed to prove that he suffered any damages. McGoogan brings a motion for summary judgment seeking a dismissal of Hibbert’s action against him on the basis that there is no genuine issue for trial.

[3] For the reasons that follow, I would grant McGoogan’s motion and dismiss Hibbert’s action, with costs.

[4] As the Supreme Court of Canada has explained in Hryniak v. Mauldin, 2014 SCC 7, there is no genuine issue for trial when the motions judge is able to reach a fair and just determination on the merits. This will be the case when the process: (i) allows the judge to make the necessary findings of fact; (ii) allows the judge to apply the law to the facts; and (iii) is a proportionate, more expeditious and less expensive means to achieve a just result.

[5] On a motion for summary judgment, the Court is entitled to assume that the parties have advanced their best case and put forward the best evidence on which they rely to support their case. This places a burden on the responding party to “lead trump or risk losing.” Byfield v. Toronto Dominion Bank, 2012 ONCA 49 at paragraph 10.

[6] Here, Hibbert retained McGoogan to represent him in a number of different proceedings. He alleges negligence with respect to three matters in which McGoogan was retained:

(i) Hibbert had previously commenced an action against a condominium corporation and others, with respect to a condominium unit where he was residing (the “MTCC Action”). He retained McGoogan to represent him in the proceeding in August of 2010. Hibbert alleges that McGoogan filed an incorrect office address with the Court, as a result of which court documents were sent to an incorrect address and the action was later dismissed;

(ii) Hibbert had commenced a Small Claims Court action against a car leasing company (the “Carnival Action”). He retained McGoogan to represent him in this matter in November 2010. In June, 2011, McGoogan became aware that the Carnival Action had been dismissed on the basis that a Notice of Settlement Conference had been scheduled and no one had attended the Conference on behalf of Hibbert. McGoogan advised Hibbert that a motion would have to be brought promptly in order to set aside the dismissal, and he also prepared a duplicate Statement of Claim to be issued but not served, in the event that the motion to revive the action was not successful. Hibbert alleges that the issuance of the second Statement of Claim was negligent; and

(iii) Hibbert had commenced a Small Claims Court action against another car leasing company (the “KCC Action”). He retained McGoogan to represent him in this matter in November 2010. Hibbert alleges that McGoogan did not move the proceeding along expeditiously with the result that, by the time a judgment was obtained against the defendant leasing company, it was insolvent.

[7] With respect to the retainer in the MTCC matter, McGoogan has produced the Notice of Appointment of Lawyer that was filed with the Court, indicating that the correct office address was provided. [3] For his part, Hibbert has filed no evidence indicating that McGoogan provided an incorrect address to the Court. Hibbert relies on the fact that certain documents appear to have been sent by the Court to McGoogan’s former office address, without producing any evidence that this was a result of any action taken by McGoogan. Therefore he has failed to provide any evidence to support his allegation that McGoogan acted incorrectly or negligently.

[8] In any event, Hibbert has not provided evidence that he has suffered any loss. Hibbert acknowledges that the dismissal of the MTCC Action was subsequently set aside (through other counsel retained by Hibbert) and the matter has been set down for trial in October 2017.

[9] Hibbert alleges that, even though the matter has been set down for trial, he suffered a loss on the basis that he had to retain other counsel in order to have the dismissal of the MTCC Action set aside. However he has provided no evidence with respect to the circumstances relating to the motion to set aside the dismissal, including any costs that he may have incurred in bringing such a motion. Accordingly, even assuming McGoogan acted negligently, Hibbert has failed to provide evidence that any loss resulted from such alleged negligence.

[10] With respect to the Carnival Action, the record indicates that Hibbert did not provide McGoogan with instructions to proceed further with the matter after October 2011. In May 2012, Hibbert obtained judgment against the defendant leasing company in the amount of $9,000 plus costs apparently on the basis of the duplicate Statement of Claim prepared by McGoogan. [4] Hibbert alleges that he has been unable to enforce this judgment since the earlier dismissal of the action was never set aside.

[11] In the correspondence between McGoogan and Hibbert between June of October 2011, the former made it clear on numerous occasions that steps would need to be taken to set aside the dismissal of the action before proceeding with the duplicate Statement of Claim. [5] A duplicate Statement of Claim had been prepared by McGoogan as a precaution for limitations purposes, in the event that the motion to set aside the dismissal proved unsuccessful. Moreover, McGoogan proceeded expeditiously once he became aware of the fact that the Carnival Action had been dismissed, scheduling a motion to have the dismissal set aside on two separate occasions. The motion to set aside the dismissal was never proceeded with as Hibbert did not provide the retainer requested by McGoogan.

[12] Hibbert has not provided any information regarding the circumstances that led to the judgment against the defendant leasing company that was obtained in May 2012. Nor has he provided information as to what efforts, if any, have been made to enforce this judgment. In any event, the preparation of the duplicate Statement of Claim, which is the negligence alleged here, was in fact a prudent measure taken by McGoogan to protect Hibbert’s rights in the event the motion to set aside the dismissal was unsuccessful.

[13] In short, there is no evidence to support a claim of negligence on the part of McGoogan in the Carnival Action.

[14] With respect to the KCC Action, it is alleged that McGoogan did not pursue the matter expeditiously and, as a result, by the time Hibbert obtained a judgment, the defendant was insolvent. However, there is no evidence on the record indicating that McGoogan failed to move the matter forward expeditiously. To the extent that there was delay in moving the matter forward, the evidence on the record tends to indicate that this was attributable to the failure on the part of Hibbert to provide a retainer and/or provide timely instructions.

[15] Further, Hibbert has not provided any evidence with respect to the alleged bankruptcy of the defendant leasing company, nor has he explained how proceeding more expeditiously would have enabled him to enforce his judgment. Accordingly, even if McGoogan were found to have failed to proceed expeditiously, Hibbert has failed to provide evidence indicating how this caused him any loss.

[16] In short, I am satisfied that there is no genuine issue requiring a trial, and I grant summary judgment in favour of McGoogan dismissing Hibbert’s action, with costs. If the parties are unable to agree on costs, they may make costs submissions in writing of no more than two pages (excluding any bill of costs) three weeks from today’s date.

Monahan, J. Date: July 12, 2017

Footnotes

[1] Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. [2] Byfield v. Toronto Dominion Bank, 2012 ONCA 49 at paragraph 10. [3] See Exhibit D of the Affidavit of Carlin McGoogan, Motion Record, Tab 2.D. [4] See Motion Record of the Plaintiff/Respondent, Tab 6. [5] See, for example, the correspondence found in the Motion Record, at Tab 2.R, S, & T.