COURT FILE NO.: CV-15-328-00 DATE: April 6, 2020

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: LESLIE SOSNOWSKI AND THERESA SOSNOWSKI Plaintiffs

– and –

MACEWEN PETROLEUM INC. AND RICHARD JOSEPH PAUL BOURDEAU Defendants

COUNSEL: Laura Hohensee, for the Plaintiffs Louis Sokolov, for the Defendant, Richard Joseph Paul Bourdeau

HEARD: In Writing

REASONS FOR JUDGMENT

ABRAMS, J

Introduction

[1] This is a motion for summary judgment brought by the defendant, Richard Joseph Paul Bourdeau (“Bourdeau”) seeking to dismiss the plaintiffs’ claims against him.

[2] The motion was initially argued February 22, 2019. Thereafter, this Court granted summary judgment in favour of the co-defendant, MacEwen Petroleum Inc. (“MacEwen”), in Sosnowski v. MacEwen Petroleum Inc., 2019 ONSC 1860, on April 11, 2019, in a companion motion arising out of the same facts.

[3] Following the result in the companion motion, the parties were invited to make further oral submissions in this matter, which occurred on July 17, 2019.

[4] The result in the companion motion was appealed to the Court of Appeal, where the decision of MacLeod-Beliveau J. was upheld dismissing the plaintiffs’ claims against MacEwen: Sosnowski v. MacEwen Petroleum Inc., 2019 ONCA 1005.

[5] Thereafter, the parties were invited to make written submissions following the Court of Appeal’s decision in the companion motion. The defendant’s written submissions were received January 20, 2019. The plaintiffs elected not to make written submissions.

Brief Background

[6] The defendant was a lawyer. The plaintiff, Leslie Sosnowski (“the plaintiff”), retained the defendant in November 2009 after he was terminated by his employer, MacEwen, for allegedly stealing fuel that he was supposed to deliver to MacEwen’s customers.

[7] The plaintiff was subsequently charged with theft and the defendant represented him at trial. The plaintiff was convicted in 2011, but his conviction was overturned on appeal in 2014, at which time he was acquitted.

[8] The plaintiff alleges that the defendant was negligent in failing to tell him in November 2009 that his right to sue MacEwen for wrongful dismissal would expire after the second anniversary following his termination and, alternatively that he failed to advise the plaintiff to retain other counsel to commence such an action within two years of his wrongful dismissal. Further, he alleges that the defendant’s representation of him at trial in 2011 was deficient and caused him to be wrongfully convicted.

Facts

Sosnowski’s Termination / Allegations of Wrongful Dismissal

[9] The defendant was a lawyer, now retired. [1] He was first retained by the plaintiff on November 9, 2009, following the plaintiff’s termination of his employment. [2]

[10] On the plaintiff’s instruction, the defendant contacted MacEwen’s lawyer to ask about the basis of his termination and was advised that the plaintiff was terminated for theft of gasoline. He was further advised that MacEwen had decided not to press charges in respect of the theft. MacEwen’s lawyer confirmed the latter advice in a letter dated November 11, 2009. [3]

[11] According to plaintiff, he asked the defendant when he could “file a wrongful dismissal charge.” The defendant told him to wait for six months and if no charges had been laid, then MacEwen probably would not pursue a prosecution. That was the totality of the conversation that the plaintiff had with the defendant about wrongful dismissal. [4] Notably, the plaintiff admitted that he “never actually hired” the defendant “to make any wrongful dismissal complaint” on his behalf. [5]

[12] By January 15, 2010, the defendant’s initial retainer had concluded. He was never requested by the plaintiff to take any further steps on his behalf with respect to his termination. [6]

[13] The plaintiff subsequently retained Bryan Laushway (“Mr. Laushway”) to represent him with respect to his employment law claim. The plaintiff hired Mr. Laushway because of his employment law expertise, as opposed to the defendant, whom he understood to be a criminal lawyer. [7]

[14] Mr. Laushway wrote to MacEwen on May 6, 2010, requesting compensation for the plaintiff’s alleged wrongful dismissal. [8] Approximately one month later, in June 2010, the plaintiff received a call from the Ontario Provincial Police asking him to come into the detachment, at which time he was criminally charged. [9] Once he was charged, Mr. Laushway advised him not to pursue the wrongful dismissal lawsuit until the criminal charges went through the court system. The plaintiff accepted this advice. [10]

[15] The plaintiff commenced this action in July 2015, more than five years after he was terminated from his employment. He alleged that he was wrongfully dismissed by MacEwen. Not surprisingly, MacEwen pleaded that the action was statute-barred, which MacLeod-Beliveau J. found as a fact and was subsequently upheld by the Court of Appeal.

[16] Notwithstanding that the plaintiff never retained the defendant to act on his behalf in respect of a wrongful dismissal action, he pleads that the defendant was negligent in this respect. [11] In particular, it is the plaintiff’s position that the defendant is liable to him for negligence because he should have told him about a two-year limitation period to bring a lawsuit for wrongful dismissal. [12] Alternatively, the plaintiff alleges that the defendant failed to advise him to retain other counsel to commence such an action within two years of his wrongful dismissal. The plaintiff has not commenced an action against Mr. Laushway.

Criminal Trial

[17] The plaintiff approached the defendant in July 2010 after he had been criminally charged. At that time, he retained the defendant to represent him on his criminal charges. [13] The defendant represented the plaintiff through to the end of his criminal trial, which resulted in his conviction in August 2011. [14]

[18] The plaintiff appealed his conviction alleging, inter alia, that the defendant was ineffective in his representation of him, and that the conviction was unreasonable. He was successful in persuading that the Court of Appeal that the verdict was unreasonable on the basis of the record that was before the trial judge. The Court of Appeal declined to deal with the allegations of ineffective representation. [15] The Court of Appeal’s reasons for judgment were as follows:

[1] The appellant was convicted of six counts of fraud and theft. He was a fuel delivery truck driver. The allegations were that he was delivering fuel to a third party while purporting to deliver to customers of his employer.

[2] The evidence consisted of a number of GPS and Geocoder records regarding the location of the appellant’s delivery truck at certain times, plus other machine-generated delivery slips/invoices, as well as charts prepared from those records, which purported to show that the appellant’s truck was delivering fuel to the third party at times when customers of the employer were being invoiced.

[3] These records were introduced by two witnesses who were employees of the fuel company but who had no expertise regarding the records or the systems that generated them, and no knowledge of the specific impugned events. There was no evidence from the allegedly defrauded customers or from the alleged third party, nor any observations of the appellant at the relevant times.

[4] The appellant appeals on the basis of errors of law, unreasonable verdict and ineffective assistance of counsel, as well as lost evidence on the appeal. In our view, it is unnecessary to deal with the latter two grounds. We would allow the appeal based on errors of law and unreasonable verdict.

[5] There are a number of errors of law that undermine the safety of the verdict. One was that the trial judge failed to explain why potentially exculpatory evidence did not raise a reasonable doubt. This evidence included signed delivery acknowledgements from the customers for deliveries at the relevant times. At page 18 of the reasons, the trial judge stated:

Finally, the accused argues that neither Howard Bus, nor Tackaberry noticed or became aware of the fraud. In the case of Tackaberry, the delivery slips acknowledging the receipt of fuel were, in fact, signed. Again, in my view, this is of little assistance. There is no evidence that the person signing the receipt, in fact, witnessed the delivery. The signature is equally consistent with an office employee trusting that a delivery has, in fact, been made.

[6] We observe that if the signatures were “equally consistent” with guilt and innocence, the trial judge had to explain why they did not raise a reasonable doubt.

[7] Second, when the Crown at trial conceded that exhibit 7 did not, as had been originally suggested, support a particular fraudulent delivery, the trial judge accepted the concession but found that he would have found the matter proved as a continuing event, based on all the evidence, without explaining why the evidence in exhibit 7 did not taint the reliability of all the rest of the similar evidence.

[8] The trial judge also did not advert to many other inconsistencies and discrepancies in the documents tendered, which raised questions about the reliability of the evidence and which he did not address.

[9] Key among those was the failure of the Crown to prove that the GPS and the machine–generated delivery slip system were time synchronized. This was a critical factor on which the Crown’s case for conviction was based. While the trial judge acknowledged that the devices were not checked daily (in fact the evidence was that they were not checked at all during the relevant period), he concluded that the records themselves, without more, provided “confirmation that they were sufficiently in sync, the one with the other to establish their accuracy.” He based that conclusion on the finding, based on statements by the witnesses, that on all but the impugned deliveries, the times corresponded.

[10] However, the witnesses did not testify that they personally checked the records of all the other deliveries. Moreover, the Crown did not tender all the other records, which in fact had been lost by the employer before trial.

[11] Absent direct evidence which could be tested by the appellant of the accuracy and reliability of the records relied on by the Crown to prove the case, the convictions cannot be sustained. The verdicts must be set aside and acquittals entered. [16]

[19] The Court of Appeal’s decision to enter an acquittal was based upon the trial record that the defendant had put before the Court. On the basis of that record, the Court of Appeal effectively found that, but for the trial judge’s errors, the plaintiff would have been acquitted. By contrast, the plaintiff’s position, as set out in his responding affidavit on this summary judgment motion, is as follows:

I believe that due to his conduct as my criminal trial counsel, Bourdeau permitted a record of evidence to be placed before the trial judge that caused or contributed to the judicial errors and also led to an unreasonable verdict. Had it not been for the conduct of Bourdeau, I believe that I would not have been found guilty in the first place. [17]

[20] The plaintiff pleads 15 specific instances of alleged negligence on the part of the defendant. According to the plaintiff’s counsel, these are the same allegations that the plaintiff made on his criminal appeal, [18] and that the Court of Appeal declined to deal with. These allegations are not supported by any expert report concerning standard of care. [19]

Issues

[21] This motion raises the following issues:

(1) Whether summary judgment is appropriate; (2) Whether the defendant had a duty of care to advise the plaintiff of the limitation period for bringing a wrongful dismissal action; and (3) Whether the defendant’s alleged ineffectiveness at the plaintiff’s criminal trial caused him to be wrongly convicted.

Law

Summary Judgment Principles

[22] The Supreme Court of Canada made clear, in Hryniak v. Mauldin, 2014 SCC 7, 1 SCR 87, that Rule 20 must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims. It held that there must be a culture shift away from protracted and unaffordable trials towards proportional and efficient pretrial proceedings. [20] It further held that that the amendment of the rule demonstrates that “a trial is not the default procedure,” and that the new powers expanded the number of cases in which summary judgment is available by “permitting motion judges to weigh evidence, evaluate credibility and draw reasonable inferences.” [21] Further, the Court observed that “the amendments [were] designed to transform Rule 20 from a means to weed out unmeritorious claims to a significant alternative model of adjudication.” [22]

[23] Summary judgment must be granted when there is no genuine issue requiring a trial. The Court held that this “will be the case when 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.”

However, even where there are concerns about making findings of credibility, these may be addressed by the calling of evidence on discreet issues at the hearing. [23]

[24] Parties to a summary judgment motion are required to advance their best case and put forward the evidence on which they rely with respect to the material issues to be tried. Bald assertions cannot defeat a motion for summary judgment. The parties must lead evidence that the court can weigh and from which it can draw inferences. They must “lead trump or risk losing”. [24]

[25] In my view, this case is one that can and should be decided on summary judgment. The record is sufficient for the Court to make findings with respect to the issues necessary for determination of this action. No further evidence is required.

Scope of Lawyer's Duty of Care (Wrongful Dismissal)

[26] The Court of Appeal has described the test for determining the scope of a lawyer’s duty of care to a client:

[5] To determine whether a lawyer owes a duty of care to a client or non-client requires the court to examine all of the surrounding circumstances that define the relationship between the lawyer and the person to whom the duty of care may be owed. Defining the scope of the lawyer’s retainer is an essential element of this analysis: Broesky v. Lüst, 2011 ONSC 167, 330 D.L.R. (4th) 259, at para. 69; aff’d, 2012 ONCA 701, 356 D.L.R. (4th) 55. However, it is not the end of the analysis where, as here, it is alleged that the lawyer’s duty of care arises out of and extends beyond the retainer. Where such an allegation is made, the court must meticulously examine all of the relevant surrounding circumstances, including but not limited to, the form and nature of the client’s instructions and the sophistication of the client, to determine whether a duty is owed beyond the four corners of the retainer: Connerty v. Coles, 2012 ONSC 2787, at paras. 12 to 15; Moon v. Chetti, 2007 CarswellOnt 2312, at para. 14. [25]

Solicitor Negligence (Wrongful Conviction)

[30] In order to succeed at trial, the plaintiff must prove that:

(1) the defendant fell below the standard of care of a reasonably competent criminal lawyer, and (2) but for the defendant’s alleged failings, the plaintiff would have been acquitted. [27]

[31] In most cases of alleged solicitor’s negligence, the client will be required to tender expert evidence regarding the requisite standard of care detailing the steps that ought to have been performed in the circumstances. [28] In a recent case, Favreau J. held that the obligation for a plaintiff to “put his best foot forward” on summary judgment included tendering expert evidence and in the absence of such evidence, there was no basis for finding that the allegations of negligence raised a triable issue. [29]

Analysis

Wrongful Dismissal Claim

[27] In my view, an examination of the surrounding circumstances makes clear that the scope of the defendant’s retainer did not extend to providing advice regarding wrongful dismissal and, equally importantly, the plaintiff was not relying upon the defendant for this purpose. To recall, the plaintiff admitted that he did not retain the defendant to bring a wrongful dismissal action. Rather, he retained Mr. Laushway for this purpose. Moreover, the plaintiff testified that he refused the defendant’s offer to refer him to a lawyer for this purpose, because he had already retained Mr. Laushway:

Q. …And other than what we've talked about, was there any discussion whatsoever with Mr. Bourdeau about making any employment claims against MacEwen? I do recall asking him at the time or during one of our meetings or conversations and they said they would refer us and we said no - I said no, rather, that I'd already found a lawyer. Q. Right, and that was Mr. Laushway? That’s correct. [26]

[28] According, in these circumstances, I find that there would have been no expectation on the plaintiff’s part that the defendant would provide him with any advice about his wrongful dismissal claim, and no basis for the defendant to believe he had any duty to provide the plaintiff with any advice in this regard. Rather, the plaintiff was receiving advice from Mr. Laushway, which he followed. Put simply, based on the advice that he received from Mr. Laushway, the plaintiff made a strategic decision to await the outcome of his criminal proceeding before deciding whether to commence this action.

[29] For these reasons, there is no genuine issue requiring a trial regarding this aspect of the plaintiff’s claim against the defendant.

Wrongful Conviction Claim

[32] In this case, there is no expert evidence and nothing, other than the plaintiff’s bald assertion, to support his claim that the defendant failed to meet the standard of care.

[33] However, even if the plaintiff could raise a triable issue in the absence of expert evidence, there is no basis to conclude that the defendant’s alleged failings caused him to be wrongfully convicted. Rather, the Court of Appeal clearly described in its reasons for judgment the legal and analytical errors that the trial judge made in convicting the plaintiff. On the record before the Court, there is no evidence to show that these errors resulted from the defendant’s performance at trial. To the contrary, I find that the defendant put a record before the trial judge that the Court of Appeal held was sufficient to enable it to order an acquittal, rather than a new trial. In other words, but for the trial judge’s errors, the plaintiff would have been acquitted. Parenthetically, it is, in my view, of no small consequence that the Court of Appeal ordered an acquittal, rather than a new trial.

[34] For these reasons, there is no genuine issue requiring a trial regarding this aspect of the plaintiff’s claim against the defendant.

Conclusion

[35] Summary judgment is granted as requested; the plaintiff’s claims against the defendant are hereby dismissed.

[36] As agreed to by counsel at the conclusion of the motion, there shall be costs payable by the plaintiff to the defendant, as follows:

1. In the Summary Judgment Motion, $10,000.00, inclusive of all fees, disbursements and HST: and
2. In the Main Action, $13,500.00, inclusive of all fees, disbursements and HST.

The Honourable Mr. Justice B. W. Abrams

Released: April 6, 2020