Court File and Parties
COURT FILE NO.: CV-14-497688 DATE: 2018-08-09 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RAWIA SALMAN, Plaintiff AND: ROBERT IPACS and IPACS LAW OFFICE, Defendants
BEFORE: D.A. Broad
COUNSEL: Rawia Salman – self-represented Louis P. Covens, for the Defendants
HEARD: July 11, 2018
Endorsement
Nature of the Action and Motion
[1] The plaintiff’s action against the defendants is for damages for alleged lawyer’s negligence arising out of a settlement negotiated by the defendant, Robert Ipacs (“Ipacs”), of the plaintiff’s tort claim for injuries resulting from a motor vehicle accident. The settlement was agreed to by the plaintiff at a pre-trial on February 8, 2012.
[2] In her Amended Fresh as Amended Statement of Claim the plaintiff alleged that her interests were severely compromised by Ipacs’ negligent handling of her tort claim and his handling of the assessment of the final account of her previous lawyer Shawn Patey (“Patey”). Among the particulars of negligence pleaded in the statement of claim, the plaintiff alleged that Iapacs:
(a) failed to give her proper legal advice and instruct her on the possible consequences of accepting the offer of settlement of the tort claim; (b) rashly advising the plaintiff to accept the tort claim offer when he knew or ought to have known that the offer was not adequate compensation for her injury, nor adequate to sustain her for the rest of her life; and (c) being an incompetent legal advisor lacking in reasonable skill and experience such that he ought not to have been rendering legal advice.
[3] The defendants have brought a motion for summary judgment pursuant to rule 20 of the Rules of Civil Procedure dismissing the plaintiff’s action against them.
Background
[4] The plaintiff was involved in a motor vehicle accident on June 3, 2006 (the “accident”). The plaintiff initially retained a paralegal, Paula Stamp (“Stamp”), to handle her accident benefits claim arising from the accident. However the plaintiff retained Patey sometime in 2008 to assume carriage of the accident benefits claim following denials by the accident benefits insurer.
[5] On or about May 21, 200, plaintiff commenced an action against the tort defendants for injuries arising out of the accident. The plaintiff was represented by Patey at the time the tort claim was commenced. Ipacs was appointed lawyer of record in respect of the plaintiff’s tort claim on or about March 11, 2009.
[6] A pretrial conference took place on February 8, 2012 before Justice Wilkins, at which time the plaintiff agreed to settle her action against the tort defendants for an all-inclusive sum of $125,000.
[7] On February 3, 2014 the plaintiff commenced three solicitor negligence claims as follows:
- Salman v. Stamp (Court File No. CV-14-497687);
- Salman v. Patey Law Group et al. (Court File No. CV-14-497689); and
- Salman v. Ipacs (Court File No. CV-14-497689) – the within action.
[8] The plaintiff’s action against Stamp was summarily dismissed by the Honourable Justice Myers on December 12, 2014 and her action against Patey Law Group and Patey was summarily dismissed by the Honourable Justice Reilly on December 19, 2016.
Evidence
(a) Defendants’ Evidence
[9] The defendants’ motion for summary judgment is supported by the affidavit of Ipacs sworn April 3, 2018 (the “Ipacs Affidavit”) and the affidavit of James M. Regan sworn March 27, 2018 (the “Regan Affidavit”).
[10] In his affidavit Ipacs deposed, among other things, to the following:
(i) on January 27, 2009 he was retained by the plaintiff to assume carriage of, amongst other claims, the tort claim arising from the accident; (ii) examinations for discovery for the tort claim had been previously held during his predecessor’s retainer on November 26, 2008; (iii) on June 22, 2010 the plaintiff was deposed globally at a continued examination for discovery arising from the accident and a separate action in respect of a slip and fall which had occurred on December 11, 2008; (iv) on the plaintiff’s examination for discovery he formed the view that she was not a good witness. Counsel for the tort defendants also expressed the view to him that the plaintiff was not a good witness; (v) an unsuccessful mediation was held on April 22, 2010; (vi) his office filed the trial record in respect of the tort claim on May 21, 2010 and on November 24, 2010 completed a trial certification form requesting a pretrial conference and trial for August 18, 2011 and November, 2011 respectively; (vii) on February 8, 2012 a pretrial conference was held, presided over by Justice Wilkins. The most recent offer to settle served by the tort defendants prior to the pretrial conference provided for payment to the plaintiff of $40,000 all-inclusive; (viii) at the pre-trial the tort defendants argued that the plaintiff had a pre-accident medical history of both physical and psychological complaints, had a significant post-accident medical history, including the slip and fall on December 11, 2008, was a poor employee at the time of the accident and stopped working in 2009 pursuant to an agreement arising from a Human Rights complaint she made against her employer, and that a number of physical and psychological assessors, including a psychiatrist, two neurologists, two orthopedic specialists, and a kinesiologist, opined that the accident did not cause the plaintiff’s alleged impairments; (ix) the tort defendants noted that the plaintiff had continued to work from the time of the accident until February 2007 and asserted that she had stopped working because of a conflict with her employer and she subsequently moved away from the area in which her employer was located. In any event the plaintiff admitted on discovery that she was looking for full-time work and expected to find a job; (x) the tort defendants also alleged that the plaintiff was earning income from a rental property in the Kitchener-Waterloo area; (xi) during the pretrial conference he advocated on the plaintiff’s behalf and ultimately elicited a settlement offer from the tort defendants of $125,000 all-inclusive. He recommended that the plaintiff accept the offer to settle based on a number of factors, including the plaintiff’s credibility, the verbal threshold codified in the Insurance Act, the statutory deductible codified in the Insurance Act, the plaintiff’s pre-and post-accident medical history, the plaintiff’s poor presentation as a witness should the matter proceed to trial, the plaintiff’s poor employment history, and advice from counsel for the tort defendants that they had useful surveillance evidence relating to the plaintiff; (xii) he explained the overall strengths and weaknesses of her claim to the plaintiff, the costs consequences concerning a trial and the consequence of settling the claim on a full and final basis; (xiii) he advised the plaintiff that he would reduce his fees to $25,000 and therefore the plaintiff would receive $100,000 minus the assignment and reimbursement owing to Social Services and ODSP; (xiv) Justice Wilkins also provided his opinion and recommended that the plaintiff accept the tort defendants’ offer of $125,000 after considering each party’s pre-trial conference memorandum and submissions; (xv) at the conclusion of the pretrial, which lasted around three hours, plaintiff accepted his advice and signed a full and final release for $125,000, the contents of which he explained to the plaintiff; (xvi) on February 14, 2012 the plaintiff emailed him to advise that she felt she had been under duress and wanted to rescind the agreement and proceed to trial. He responded by advising the plaintiff that the release was a signed contract and that he agreed with Justice Wilkins that the settlement was fair and reasonable; (xvii) he met with the plaintiff and her son on February 18, 2012. The plaintiff expressed a desire to rescind the settlement agreement whereupon he advised her that he could not act for her if she breached the settlement agreement; (xviii) on February 24, 2012 plaintiff’s son emailed him, copying the plaintiff, advising him to proceed with the settlement and giving instructions on division of the settlement funds; (xix) February 25, 2012 he met with the plaintiff and her son in person to have them execute a further full and final release at which time he explained the release to the plaintiff; (xx) he received the settlement funds from the insurer for the tort defendants on March 5, 2012; (xxi) he had discussions and an exchange of correspondence with a representative of the Attorney General for Ontario concerning the ODSP claw back and on March 20, 2012 he was advised that the plaintiff’s $100,000 net settlement was exempt from reimbursement for ODSP; (xxii) on March 20, 2012 he disbursed $1,320.83 to the social services department of the Region of Waterloo in respect of the plaintiff’s assignment to it; (xxiii) at all material times he acted diligently and competently to represent the plaintiff in all aspects of her litigation in accordance with the standard of care expected of a reasonable solicitor practising personal injury and insurance law in the Province of Ontario and obtained a settlement for the plaintiff that was fair and reasonable.
[11] In his affidavit Mr. Regan deposed as follows:
(i) he was a practising lawyer, called to the bar in the Province of Ontario in 1971; (ii) he had practised in the area of civil litigation, acting for both plaintiffs and defendants in insurance matters, motor vehicle accidents, wrongful dismissal claims, subrogation claims, commercial host liability claims, medical malpractice actions and occupier liability claims; (iii) he had litigated many jury and non-jury trials and has appeared at all levels of Ontario courts; (iv) he had previously been qualified to give opinion evidence as an expert on the standard of care of a lawyer; (v) he prepared a report providing his opinion on the standard of care in the matter. A copy of his report dated September 13, 2017 and his executed Acknowledgement of Expert’s Duty Form 53 were appended to his affidavit as exhibits.
[12] Mr. Regan’s expert report comprised 20 pages to which were appended 29 pages of schedules. Schedule A set forth a summary of relevant productions in the tort action and Schedule B set forth a detailed summary of relevant medical documentation concerning the plaintiff.
[13] Mr. Regan confirmed in his report that he had been retained to provide an opinion on:
(a) an assessment of the plaintiff’s damages arising out of the accident; and (b) whether the valuation of the plaintiff’s damages was consistent with the settlement reached February 8, 2012.
In summary, he stated that the issue he was asked to address was whether or not the settlement was improvident. He confirmed his understanding that, pursuant to rule 53.03, his duty was to the court and not to the party who retained him.
[14] Following a detailed analysis with respect to the accident, the plaintiff’s post-accident history, and the plaintiff’s claim, including her claims for general damages and economic loss, Mr. Regan stated his conclusion that he believed that the all-inclusive settlement of $125,000 was more than reasonable for the following reasons:
(a) there was a genuine issue as to whether the plaintiff would meet the threshold for general damages pursuant to the Insurance Act; (b) even if the plaintiff met the threshold, the plaintiff’s potential award of damages was likely to be less than the settlement amount and had the potential to be eliminated by the deductible under the Insurance Act; (c) the evidence indicated that the plaintiff was capable of gainful employment and therefore she did not have a viable loss of income claim.
[15] Mr. Regan expressed the opinion that the plaintiff received competent legal advice from Ipacs, the settlement had been reviewed by an experienced judge and the plaintiff received independent legal advice after she considered repudiating from the settlement. The plaintiff executed not one but two releases confirming the settlement. Moreover, the settlement exceeded the expectations of all parties involved. On January 14, 2009, the plaintiff’s prior lawyer, Patey, on her behalf, offered to settle the action for $94,470.75. On January 18, 2009 Patey documented an oral offer to settle from the tort defendants’ counsel for $40,000 all-inclusive. Patey sought instructions from the plaintiff to offer to settle for $75,000 and, in response, plaintiff replied by email that she would “not settle for one penny less than $100,000.”
[16] The plaintiff received $100,000 from the $125,000 settlement.
[17] Mr. Regan expressed the opinion that Ipacs acted as a “reasonable and prudent solicitor”, protected his client’s interests and followed her instructions while protecting the plaintiff from any adverse costs award that could have resulted from going to trial. Mr. Regan concluded by expressing his opinion that the settlement was more than reasonable and definitely not improvident.
[18] In response to the defendants’ motion, the plaintiff filed an affidavit sworn December 13, 2017 (the Plaintiff’s Affidavit”) in which she deposed, among other things, as follows:
(i) Ipacs breached his duty of care and engaged in serious misconduct causing her serious damages; (ii) the plaintiff’s damages included loss of her income replacement, loss of her private health coverage, numerous serious encounters with ODSP, the inflected, escalated and extremely complicated and very costly court actions that she has had to deal with, numerous failed attempts to secure a family doctor in the Waterloo area because of her involvement in court actions, being advised by the offices of certain doctors that they would not treat patients with injuries resulting from a car accident, and the struggle to find financial resources to pay for her medications that are not covered under ODSP; (iii) the defendants in the tort action made numerous serious, wrongful allegations pertaining to her medical records; (iv) at the pretrial, Ipacs came out of Justice Wilkins’ chambers holding the full and final release at which time she was put under immense pressure to accept the settlement as it was her only chance to recover some money. Signing of the release did not “come out of her will” and she was put under “extreme pressure with all sorts of accusations”; (v) the settlement was followed by a very painful journey which included: (a) Ipacs was desperately trying to convince her not to have the settlement cheque issued under her name, which she refused; (b) dealing with the court clerk when she called in August, 2012 inquiring about the possibility of changing the date of the assessment of Patey’s legal account; (c) going through a very hard time trying to sort out Patey’s account in court; (d) filing a complaint to the Law Society which was dismissed; (e) her discovery of her serious losses upon receipt of a copy of her file from her motor vehicle insurer; (f) encounters with ODSP; (g) failed attempts for the past 10 years to find a family doctor because she was involved in court actions pertaining to a car accident; and (h) she was put off work indefinitely by her family Doctor (vi) the defendants’ negligence jeopardized any opportunity for her to be granted her loss of income and extended health benefits.
[19] The plaintiff’s affidavit made no reference to any fault or neglect of Ipacs in reference to his representation of her on the assessment of Patey’s legal account.
[20] The plaintiff filed no affidavit or report from an expert providing opinion evidence with respect to the standard of care and whether Ipacs breached the applicable standard of care.
Principles Applying to Summary Judgment Motions
[21] Rule 20.01(3) of the Rules of Civil Procedure provides that a defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.
[22] Rule 20.04 (2)(a) provides that the Court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[23] The Supreme Court of Canada in Hryniak v. Mauldin, [2014] S.C.R 87 stated at para. 49 that there will be no genuine issue requiring a trial when a judge hearing a summary judgment motion is able to reach a fair and just determination on the merits, and that this will be the case where the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[24] The Supreme Court of Canada went on to provide a roadmap or approach to be followed by judges hearing motions for summary judgment at paras. 66-68. The judge should first determine if there is a genuine issue requiring trial based only on the evidence before her/him, without using the new fact-finding powers in sub rules 20.04(2.1) and (2.2). There will be no genuine issue requiring a trial if the summary judgment process provides the motions judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure. If there appears to be a genuine issue requiring a trial, she/he should then determine if the need for a trial can be avoided by using the new powers under sub-rules 20.04(2.1) and (2.2). While summary judgment must be granted if there is no genuine issue requiring a trial, the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary.
Analysis
(a) Application of Summary Judgment Principles
[25] Based upon a careful review of the affidavit evidence filed by the parties I find that the summary judgment process does provide me with the evidence required to fairly and justly adjudicate the dispute between the plaintiff and the defendant and is a timely, affordable and proportionate procedure.
[26] I am able to determine that there are no genuine issues requiring a trial based only on the evidence before me, without using the new fact-finding powers in sub-rules 20.04(2.1) and (2.2). There are no issues of credibility which would require a trial to address the issues of 1) whether Ipacs failed to adhere to the applicable standard of care in advising the plaintiff in reference to the settlement of her tort claim arising from the accident and 2) whether Ipacs’ acts or omissions caused the plaintiff’s alleged loss. The plaintiff has led no expert evidence which would be contrary to, or conflict with, the expert opinion evidence of Mr. Regan that Ipacs acted as a reasonable and prudent solicitor, acted in accordance with the plaintiff’s instructions and that the settlement which Ipacs negotiated for the plaintiff was not improvident.
Analysis
[27] It is well-established that in an action against a lawyer for negligence, the standard of care is not perfection but rather that of a “reasonably competent solicitor.” A lawyer is required to bring reasonable care, skill, and knowledge to the performance of the professional service which he or she has undertaken. The question is not whether the lawyer made a mistake, but rather whether he or she was negligent (see Pilotte v. Gilbert, Wright & Kirby Barristers and Solicitors, 2016 ONSC 494, [2016] O.J. No. 370 (S.C.J.) at paras. 3-33).
[28] In my view plaintiff has failed to satisfy the onus on her of proving, on a balance of probabilities, that Ipacs’ conduct fell below the standard of a “reasonably competent solicitor” in negotiating the settlement of the tort claim, explaining the meaning and effect of the settlement to the plaintiff and recommending it to her, and obtaining the plaintiff’s informed agreement to the settlement.
[29] I find, based upon the evidence, that plaintiff has failed to prove, on a balance of probabilities, that Ipacs “coerced” her into accepting the tort defendant’s offer to settle. Indeed, the evidence is to the contrary. Not only did Ipacs explain the weaknesses of the plaintiff’s tort claim and the risks of proceeding to trial to her, but he also explained the meaning and effect of the settlement and his reasons for recommending it to her before she executed the Full and Final Release on February 8, 2012. Moreover the plaintiff executed a second Full and Final Release on February 25, 2012 after the plaintiff expressed reservations about the settlement. Ipacs may have been blunt and honest in providing her with his assessment of the plaintiff’s case at trial, but in doing so he was discharging his professional responsibility to her. Ipacs’ conduct did not represent coercive impropriety.
[30] Previous cases have expressed that caution should be exercised in reviewing whether there was negligence in connection with a settlement recommendation by a lawyer, as there is an important public policy principle at stake. Ratushny, J. in the case of Spadiccini v. Rogers [2000] O.J. No. 779 (S.C.J.) at para. 37, quoting at length from the case of Karpenko v. Paroian, Courey, Cohen & Houston (1980), 30 O.R. (d) 776, stated as follows:
I accept, as stated in Karpenko v. Paroian, Courey, Cohen & Houston (1980), 30 O.R. (2d) 776 (Ont. H.C.) at 790, that caution should be exercised in reviewing whether there is negligence in connection with a settlement recommendation by a solicitor:
... in my view it would only be in a clear and exceptional case that the decision of counsel to recommend settlement could be successfully assailed. Were I considerably less convinced of my conclusions pertaining to the defendant's standard of performance in this case than I am, and even without the conclusions I have expressed on the question of damages, I would be disposed to dismiss this action as it relates to the settlement.
In my view, an important element of public policy is involved. It is in the interests of public policy to discourage suits and encourage settlements. The vast majority of suits are settled. It is almost the universal practice among responsible members of the legal profession to pursue settlement until some circumstance or combination of circumstances leads them to conclude that a particular dispute can only be resolved by a trial... What is relevant and material to the public interest is that an industrious and competent practitioner should not be unduly inhibited in making a decision to settle a case by the apprehension that some Judge, viewing the matter subsequently, with all the acuity of vision given by hindsight and from the security of the Bench, may tell him he should have done otherwise. To the decision to settle, the lawyer brings all his talents and experience both recollected and existing somewhere below the level of conscious mind, all his knowledge of the law and its processes. Not least he brings to it his hard-earned knowledge that the trial of a lawsuit is costly and time-consuming and taxing for everyone involved and attended by a host of contingencies, foreseen and unforeseen...
[31] The case at bar is not a “clear and exceptional case” in which a lawyer’s decision to recommend a settlement could be successfully assailed. Although not necessary to my decision, I would observe that, based upon the evidence before me, the settlement was far from improvident, but rather was favourable to the plaintiff and in her best interests.
[32] The plaintiff has an obligation to “put her best foot forward” on the defendant’s motion for summary judgment. I am entitled to assume that the evidence presented by the plaintiff on the motion will be her evidence at trial. The plaintiff has not satisfied the onus on her of showing that Ipacs breached the applicable standard or care of a reasonably competent solicitor or of proving that any act or omission on Ipacs’ part caused any of the harm or damages which she alleges.
[33] I find that there are no genuine issues requiring a trial respecting the liability of the defendants.
Disposition
[34] For the foregoing reasons the plaintiff’s action is therefore dismissed.
Costs
[35] If the parties are unable to agree upon costs, the defendants may make written submissions as to costs within fourteen (14) days of the release of this Endorsement.
[36] The plaintiff may have ten (10) days after receipt of the defendants’ submissions to respond.
[37] All such written submissions shall not exceed four (4) double-spaced pages, exclusive of Costs Outlines or Bills of Costs, Offers to Settle and Authorities, and are to be forwarded to me at my Chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7, with a copy to the opposing party or counsel. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.
D.A. Broad Date: August 9, 2018