COURT OF APPEAL FOR ONTARIO

DATE: 20000208

DOCKET: C29067

McMURTRY C.J.O., CARTHY AND LASKIN JJ.A.

B E T W E E N :

BRIAN BOUDREAU
Respondent
(Plaintiff)

and

ELYAHU BENAIAH and
ROSEN, FLEMING

Appellants
(Defendants)

Raj Anand
for the appellant

Marshall Swadron
and Shelley R. Flam
for the respondent

Heard: May 19, 1999

On appeal from the reasons of Greer J. dated January 16, 1998.

CARTHY J.A.:

[1] This is an appeal from a trial judgment finding the appellant, Benaiah, negligent in the conduct of a criminal proceeding and awarding the respondent client, general and special damages. Greer J.’s reasons are reported at (1998) 37 O.R. (3d) 686 (Gen. Div.). The appellants conceded negligence on the part of Benaiah, attributable to the appellant law firm, and the focus of the argument was upon damages.

FACTS

[2] Mr. Boudreau’s criminal charges were in relation to a custody dispute with his former spouse arising from the removal of his son from the jurisdiction contrary to a custody order. Mr. Boudreau abducted his son, Luke, and took him to Hawaii. He used a complex scheme to accomplish this abduction and flew to Hawaii using an assumed name. His mother and his half-brother assisted him in carrying out his plan and in completing the abduction. Mr. Boudreau had an “extortion note” delivered to his spouse and made threats to her in that note, which indicated that if she did not go along with his wishes, she would never see her son again.

[3] On November 13, 1990, Mr. Boudreau was arrested and returned to Canada where he was charged with abduction, taken into custody and denied bail. Shortly after Mr. Boudreau’s arrest, his mother and half-brother were charged as accomplices. The following factual recitation is taken from the findings of the trial judge who accepted Boudreau’s evidence where it conflicted with that of Benaiah.

[4] Mr. Boudreau first retained lawyer Richard LeDressay to help him negotiate a plea bargain with the Crown that would include the withdrawal of charges against the co-accused. In December 1990, Mr. Boudreau discharged Mr. LeDressay and retained the law firm of Rosen, Fleming. Mr. Benaiah was assigned to his file. Despite a number of planned meetings, Mr. Benaiah did not meet with Mr. Boudreau until January 6, 1991. At this meeting, Mr. Boudreau signed legal aid documents. His defence was not discussed. In fact, Greer J. found that Mr. Benaiah never discussed the merits of the case with Mr. Boudreau.

[5] On January 7, Mr. Benaiah scheduled a bail review hearing for January 21. On January 22 after a two-day hearing, LeSage J. denied bail because he considered Mr. Boudreau a flight risk and likely to engage in further criminal activity. Following the denial of bail, a preliminary hearing was fixed for February 19. On January 27, 1991, Mr. Benaiah met with Mr. Boudreau to discuss his case. The discussion turned to negotiating a plea bargain. Mr. Boudreau’s evidence was that he insisted that any plea bargain include the withdrawal of charges against his mother and half-brother. Mr. Benaiah told him he would have information to him regarding a possible plea bargain by January 31, 1991. Mr. Benaiah did not contact the Crown until February 7, 1991, at which point he wrote to the Crown. Mr. Benaiah also failed to meet with or speak to the respondent at two previously scheduled meetings on February 17 and 18 and did not meet with him again until minutes before the preliminary hearing on February 19, 1991.

[6] On February 19, 1991, Mr. Benaiah met with Mr. Boudreau and advised him that a plea bargain had been struck. Mr. Benaiah said that he would be asking the judge for a sentence of time served and that there was a strong chance that Mr. Boudreau could return home that day. Mr. Boudreau initially rejected the plea bargain because he did not understand it to include the withdrawal of charges against his mother and half-brother. Mr. Benaiah’s reaction was to threaten to withdraw his services, claiming that rejecting the deal could mean an additional one-year in jail. The preliminary hearing could not proceed on that day as the witnesses had been excused with Mr. Benaiah’s permission. Believing that he had no choice, Mr. Boudreau pled guilty to the charges of abduction and breach of probation in accordance with the plea bargain. Mr. Boudreau was sentenced to six months in respect of abduction and three months in respect of breach of probation to run consecutively. Mr. Benaiah said that he would appeal the sentence and spoke of applying for bail pending appeal. He did not file a sentence appeal immediately, and by the time he did so, Mr. Boudreau was due to be released on parole and, therefore, Legal Aid considered the appeal to be unwarranted.

[7] Mr. Boudreau’s evidence at trial was that he only learned during discoveries in his action against the appellants that the Crown had given Mr. Benaiah an undertaking to drop the charges against his mother and half-brother for a guilty plea by him. Greer J. found that information regarding this undertaking was never conveyed to Mr. Boudreau (or anyone else) by Mr. Benaiah either at the time of the plea or later, nor did Mr. Benaiah follow-up on the undertaking, document it, or take any steps to ensure it was followed. Both Mr. Boudreau’s mother and half- brother were convicted of the charges against them.

[8] Greer J. concluded that Mr. Benaiah failed to properly communicate with his client and that he failed to meet the standard of the ordinary competent criminal counsel in a number of aspects. In her view, Mr. Benaiah’s negligence was related to an accumulation of incidents and failures on his part. The trial judge also found that Mr. Boudreau was not attempting to relitigate his criminal case and that Mr. Boudreau accepted that, given the facts of his case, he would likely have been found guilty in any event.

ANALYSIS

[9] The appellants accepted the trial judge’s findings of fact regarding Mr. Benaiah’s breach of duty of care and accordingly, this issue was not pursued before this court. The appellants’ submissions focussed upon the damage awards. The trial judge awarded damages under three heads: (1) $30,000 for mental distress for Mr. Benaiah’s negligence; (2) $5000 in special damages for legal fees paid by Legal Aid to the appellant and to be paid over to Legal Aid upon recovery; and (3) $2000 in special damages for a payment by the respondent toward his mother’s legal fees.

[10] Dealing with these damage awards in reverse order, I see no basis in the evidence for attributing any payment to the mother to the appellants’ conduct. The respondent’s $2000 payment to his mother was an assignment of a debt, made prior to these events. His mother’s use of that money could, at best, lead to a claim by the mother against the lawyer to whom it was paid. This event is entirely disassociated from the appellants’ conduct of the respondent’s defence.

[11] Secondly, the Legal Aid account is a matter of concern to Legal Aid and the law firm – not to the respondent who had no contributory obligation under his certificate. The respondent cannot assert a claim on behalf of Legal Aid and, even if he could, there is real question as to whether there was a total failure of consideration. There is no suggestion that the result obtained for the respondent was not the best that could be accomplished. The respondent’s loss, if any, was not in the result of the proceedings – it was in the psychiatric consequences of the appellants’ misconduct of the proceedings.

[12] The award of damages of $30,000 was based upon evidence of mental distress arising from Benaiah’s conduct. In my view there was evidence from the respondent’s expert psychiatrist, Dr. Posner, to support a finding that the misconduct of the appellants leading to, and including, the conviction was a cause of the respondent’s depression. In oral argument, the appellants conceded that damages for mental distress are recoverable. The appeal proceeded on this basis. Dr. Posner assessed the emotional impact the actions of Mr. Benaiah had upon Mr. Boudreau. When asked in cross-examination which actions of Mr. Benaiah had an emotional impact on Mr. Boudreau, Dr. Posner gave the following answer:

Well, initially even prior to the guilty plea there are a series of actions which promote ongoing frustration. It could possibly be summarized with them, with a sentence not being heard, not being listened to, not being taken seriously. I say I want a defence. You say I am going for a deal. I say I want to get out. You say two more weeks. Two more weeks come, I say I want to get out. You say two more weeks and that goes on. There is the feeling of betrayal that is growing as that time goes on as well that Mr. Boudreau discussed with me. Then the forced guilty plea I think is, and I say forced. I should probably qualify that. Mr. Benaiah did not grab Mr. Boudreau’s arm behind his back and twist until he yelled guilty. I am making the assumption that an average person who is not that familiar with the court system who is brought before the court and whose only attachment to the mechanism of the court, that is his lawyer, suddenly pulls out, leaving this man to face the court or threatens to pull out leaving this man, pardon me, to face the sharks. I think the average person would have plead guilty in that situation regardless of what they felt. You may debate that. I think I would have pled guilty. So what I was saying, this forced guilty plea and I will call it forced guilty plea, has put him in a position where Mr. Boudreau could not do something that is very important for Mr. Boudreau and that is to validate himself in the eyes of those that matter, and when I say those that matter, I mean Luke [Boudreau’s son] eventually, Michael [Boudreau’s son from an earlier marriage] eventually, and God. And to him God was very important, is very important. He couldn’t validate himself to them and being an individual who looks for external validation that would have taken from him his own sense of being a valid person, a worthwhile person, and that, I believe, is the root or was at the root of the depressive and later anxiety symptoms that I discussed.

[13] Despite Dr. Posner’s evidence, in speaking to damages in her reasons, Greer J. put the entire emphasis of the impact of the appellants’ conduct upon the severance of the relationship between the respondent and his mother and half-brother. At p. 72 Greer J. concluded:

In the case at bar, I have concluded that Boudreau has suffered from serious depression which is lessening but has not completely subsided. I am satisfied, on the evidence before me, that the majority of such depression and low self esteem has been caused by Benaiah’s negligence in the handling of Boudreau’s case. I am confident that such depression will subside, however, given the length of Boudreau’s depression so far, I award Boudreau the sum of $30,000 for mental distress. Whether or not Boudreau’s relationship with his Mother and his half-brother will ever be repaired is something one can only speculate on. I am, however, satisfied that the estrangement would not have occurred but for Benaiah’s negligence in failing to communicate to anyone or in any way document the Undertaking given by the Crown to withdraw the Charges against Boudreau’s Mother and half-brother. To lose one’s familial ties because of the negligence of one’s counsel, is a loss of great magnitude, and in my view, Boudreau must be properly and reasonably compensated for that loss which is tied into his mental distress. [Emphasis added]

[14] In my view, there is no evidence to support a connection between the conduct of the appellants and the italicized reference except the respondent’s own evidence. His evidence was that his mother and his half-brother would no longer speak to him and he surmised that this was because of the appellants’ conduct, particularly the failure to assure that the undertaking to drop the prosecution against the mother and half-brother was fulfilled. This surmise is not evidence upon which damages can be founded. Without any evidence, the natural inference would be to assume that the disenchantment flowed from the original invitation by the respondent to involve his relations in an elaborate scheme to remove his child from the jurisdiction and, thus, bring the forces of justice upon their heads.

[15] It is thus my view that the trial judge erred in principle in misconceiving the evidence and relying upon the break-up of the family relationship in assessing damages.

[16] In summary, I have found that there was a basis for damage based upon the psychiatrist’s evidence that the respondent suffered from the misconduct of the appellants. However, I must discount the damages to remove any portion related to the dislocation of family relations and conclude that an award of $15,000 is appropriate.

DISPOSITION

[17] The judgment will be set aside and in its place a judgment will issue for $15,000 damages and pre-judgment interest on the basis established in the judgment appealed from, together with costs at trial as stipulated in the court below. The Court may be spoken to if there are offers to settle prior to trial that affect costs below. The appellants shall have their costs of the appeal.

Released: February 8, 2000 “R.R.M.”

“J.J. Carthy J.A.”

“I agree R.R. McMurtry C.J.O.”

LASKIN J.A. (dissenting in part):

[18] Brian Boudreau was charged with abducting his 4-1/2 year old son Luke in contravention of a custody order and with breach of probation. He was represented by Elyahu Benaiah, a young lawyer in the law firm of Rosen, Fleming. Boudreau pleaded guilty to the two charges and was sentenced to nine months in jail. He then sued Benaiah and the law firm for negligence in defending him.

[19] The trial judge, Greer J., found that Benaiah did not meet the standard of a reasonably competent criminal defence counsel.[^1] She awarded Boudreau damages under three heads: $6,398.70 to be paid to the Ontario Legal Aid Plan (“OLAP”); $2,000 representing the amount he contributed to his mother’s defence; and $30,000 for mental distress. Benaiah and the law firm do not appeal the finding of negligence. They appeal only the damage awards.

[20] I agree with my colleague Carthy J.A. that the awards on account of Legal Aid and Boudreau’s mother’s defence cannot be supported and should be set aside. We disagree only on the award for mental distress. Carthy J.A. would reduce the award to $15,000. I would award Boudreau nothing. Carthy J.A. finds that although Benaiah’s negligence did not cause Boudreau’s estrangement from his family, it did contribute to his depression because the “forced guilty plea” prevented him from validating his conduct. I find no justification for compensating Boudreau. He committed a horrendous crime for which he had no defence and for which he alone must accept responsibility.

Background Facts

[21] Carthy J.A. has set out the factual background. I will summarize only those facts relevant to my decision.

[22] Boudreau was 36 years old when these events occurred. He had married Janet Ciprik, his third marriage, in 1984. Their son Luke was born in November 1985. Boudreau and his wife separated in 1989. They waged a bitter custody fight, which included five court orders in a period of ten months. During this custody fight, Boudreau was charged with assaulting his stepson, Ms. Ciprik’s son from a previous marriage. He pleaded guilty and was given a suspended sentence and probation. He was on probation when he abducted Luke.

[23] In March 1989, the court awarded Ms. Ciprik custody of Luke. Boudreau was given access. Boudreau abducted Luke on April 20, 1990. He took him to Hawaii under an assumed name. The abduction was carefully planned and designed to deceive his wife and the police about where he had gone. Boudreau’s mother and half-brother assisted him in this devious scheme. Boudreau then had an “extortion note” delivered to Ms. Ciprik threatening her that if she did not go along with his wishes she would never see her son again.

[24] Boudreau kept Luke in Hawaii for over six months. Ms. Ciprik made frantic efforts to find her son at a cost of $20,000. Never once did Boudreau contact her to tell her that Luke was all right. Finally Boudreau’s girlfriend, who had corresponded with him when he was in Hawaii, told the police his whereabouts. On November 13, 1990, Boudreau was arrested in Hawaii and taken back to Canada. Luke was returned to his mother.

[25] Boudreau was charged with abduction in contravention of a custody order under s. 282 of the Criminal Code,[^2] with four related criminal charges, and with breach of probation. His mother and half-brother were charged as conspirators and accessories after the fact in the abduction scheme.

[26] Boudreau remained in custody until his trial. He was denied bail by a justice of the peace on both the primary and secondary grounds. At a bail review hearing in January 1991, LeSage J. refused him bail as well, also concluding that Boudreau was a flight risk and was likely to commit further crimes.

[27] Boudreau discharged his first lawyer in December 1990 and retained Rosen, Fleming, which assigned Benaiah to the case. On February 19, 1991 Boudreau pleaded guilty to the charges of abduction and breach of probation. The other charges against him were withdrawn. On March 6, 1991, he was sentenced, in addition to his pre-trial custody, to six months on the abduction charge and three months consecutive on the breach of probation charge. The sentencing judge concluded that Boudreau’s conduct in taking Luke to Hawaii was “selfish and self-motivated.” He “gave little thought or consideration” for his wife or son. Instead, “the only consideration” he had was for himself. Boudreau appealed his sentence but later abandoned his appeal. David Humphrey, an experienced and highly regarded defence counsel, whose expert evidence was accepted by the trial judge, testified that Boudreau had no defence to the abduction charge and that the sentence of nine months was reasonable.

[28] Still, Greer J. found that Benaiah acted negligently in his defence of Boudreau. His negligence consisted of “an accumulation of incidents and failures.” He failed to keep appointments with Boudreau or answer his telephone calls, failed to explore an “imminent harm” defence although that defence would not have succeeded, discharged witnesses for the preliminary inquiry without telling Boudreau, failed to write a timely letter to Legal Aid for Boudreau’s sentence appeal, and most serious, failed to document or follow-up on the undertaking he said was given by the Crown to drop the charges against Boudreau’s mother and half-brother, resulting in their being convicted on some of these charges. The finding of negligence is not attacked on this appeal. The issue on the appeal is whether Benaiah should be held accountable for the damages claimed by Boudreau and awarded by the trial judge.

The Damage Awards

(a) The Legal Aid Account

[29] The trial judge awarded $5,817 for the fees and disbursements paid by OLAP to Boudreau’s lawyer, plus OLAP’s ten per cent administrative fee of $581.70, for a total of $6,398.70. This amount was to be repaid to OLAP.

[30] This award is not supportable. As Carthy J.A. points out, the money paid by OLAP is a matter between it and the law firm. Boudreau had no obligation to contribute under his certificate and OLAP has not claimed reimbursement.

(b) Boudreau’s payment to his mother

[31] The trial judge awarded Boudreau $2,000 representing money paid to his mother for her legal fees. This award, too, is unsupportable. As Carthy J.A. points out, Boudreau paid the $2,000 to his mother – by assigning a debt that he was owed to her – well before he retained Benaiah.

(c) Mental distress

[32] The main award made by the trial judge was $30,000 in damages for mental distress. The trial judge concluded that Boudreau “suffered from serious depression” and that “the majority of such depression and low self-esteem has been caused by Benaiah’s negligence in the handling of Boudreau’s case.” Mr. Anand, counsel for the appellants, acknowledged that mental distress – for example a serious depression – caused by a breach of contract or by tortious conduct is compensable by an award of damages.[^3] Moreover, a reasonable lawyer should contemplate that a failure to conduct litigation properly may cause a client unnecessary and thus compensable mental distress. The issue in this appeal, however, is whether Benaiah, though admittedly negligent, should be held responsible for Boudreau’s depression.

[33] The trial judge gave two reasons why Benaiah should be held responsible. The main reason, in her view was that “Benaiah’s negligence in failing to communicate to any one or in any way document the undertaking given by the Crown to withdraw the charges against Boudreau’s mother and half-brother” caused Boudreau’s estrangement from his family. What I take the trial judge to be saying is that Benaiah’s failure to ensure that the undertaking was fulfilled resulted in Boudreau’s mother and half-brother being convicted, and that these convictions alienated Boudreau from his family, thus causing his depression.

[34] Why the undertaking was not carried out is unclear on the record. Nonetheless I will accept for the sake of argument that Benaiah’s negligence in not documenting the undertaking led to its not being carried out and therefore to the convictions of Boudreau’s mother and half-brother. I agree with Carthy J.A., however, that the evidentiary record does not reasonably support a causal connection between the convictions of Boudreau’s mother and half-brother and Boudreau’s estrangement from them. Neither Boudreau’s mother nor his half-brother testified, nor indeed did any other member of Boudreau’s family. It is mere speculation that his mother and half-brother would not speak to him because of their convictions. More likely, as Carthy J.A. has said, they would not speak to him because he had enticed them into an ill- conceived criminal conspiracy for which they faced serious charges.

[35] Moreover, Boudreau’s mother, who he acknowledged was his main concern, was convicted in June 1992. But Boudreau testified that he was still speaking to her in 1994, two years after her conviction. Boudreau also acknowledged that he had little concern about the undertaking to drop the charges against his half-brother because “he’s a big boy and he could take care of himself.” Thus, in my view, the evidence does not reasonably support the finding that Benaiah’s negligence caused Boudreau’s estrangement from his family.

[36] The secondary reason given by the trial judge for her award of damages for mental distress and the basis for Carthy J.A.’s award of $15,000 was the evidence of Dr. Posner. Dr. Posner, a psychiatrist, testified that what he termed the “forced guilty plea” was at the root of Boudreau’s depression and later anxiety symptoms because Boudreau could not “validate himself in the eyes of those that matter.”

[37] In my view, Dr. Posner’s evidence provides no justification for an award of damages for mental distress. Dr. Posner was not Boudreau’s treating psychiatrist. Indeed, Boudreau sought no psychiatric or psychological counselling during the entire period between his marriage break-up, his abduction of Luke, and his lawsuit against his lawyer. He saw Dr. Posner only once for two and one half hours, in May 1997 – seven years after he abducted Luke and shortly before this trial – to obtain an opinion to support his damages claim. Even accepting this limitation on Dr. Posner’s ability to give an informed opinion, what his opinion comes down to is that by pleading guilty instead of going to trial Boudreau could no longer blame others for what happened to him. Dr. Posner acknowledged as much both in his examination-in- chief and in his cross-examination.

[38] In chief, Dr. Posner testified that Boudreau’s “feeling guilty, pleading guilty, hearing himself say I am guilty tore away the defences that he was using”. Instead, Boudreau “could have if he lost, said the system messed me up or the judge messed me up or my lawyer messed me up, but I am good.” Dr. Posner elaborated on this opinion when he was cross-examined:

Q. And will you agree with me that the coping mechanism that Mr. Boudreau used to defend himself in these circumstances was first and foremost to blame everything else for his problems?

A. There are technical words for that. There is a component of what we call externalizing blame, yes.

…

Q. Let me break it down. What you describe at the end of your examination in- chief that process related to actually proceeding to trial rather than pleading guilty, right, you remember that?

A. That’s right, yes.

Q. And your suggestion was that even if he went to trial and he lost that because he could blame the system, the courts, the lawyers, someone else for his problems and thereby sustain his self-esteem and that was the type of person that Mr. Boudreau was and is in your analysis?

A. I believe that that is a prominent coping mechanism used by him to avoid feeling decimated, yes.

In other words, Boudreau was denied the “external validation” that he sought.

[39] I confess I find extraordinary the notion that the court should compensate a person for being deprived of the chance to blame everyone but himself for the crime that he committed, a crime that victimized his 4-1/2 year son and his wife. Why should Boudreau not “feel guilty” for this crime? He was guilty. If all that Benaiah’s negligence caused was Boudreau’s inability to blame others, then I do not see how an award of damages can be supported.

[40] Moreover, what Dr. Posner’s evidence ignores is that Boudreau had the opportunity to “validate” himself at his sentencing hearing two weeks after his guilty plea. Boudreau testified at this hearing and sought to justify his actions. His justification was implicitly rejected by the sentencing judge, who considered Boudreau’s actions entirely selfish.

[41] The so-called forced guilty plea cannot support the award of mental distress damages for another reason. To allow the guilty plea to support the damages award would amount to an impermissible collateral attack on the criminal proceedings. Boudreau argues that his claim for damages is not a collateral attack on the criminal proceedings because he attacks not the substantive outcome of those proceedings but the process. He complains not about his convictions and his sentence, implicitly conceding that he could not have obtained a better result, but about the way he was convicted, being “forced” to plead guilty by his lawyer. This is no less a collateral attack on the guilty plea.[^4] Boudreau did not appeal his conviction on the ground that his plea was not voluntary. When he gave evidence at the sentencing hearing, represented by another lawyer, he did not testify that he was forced to plead guilty. He did not claim ineffective assistance of counsel. Instead he benefited from his guilty plea because the sentencing judge took his plea into account in sentencing him to only nine months. And, although he filed a notice of leave to appeal his sentence, he later abandoned his sentence appeal. Boudreau cannot have it both ways. Having taken no steps to set aside the plea, and instead having taken the benefit of the plea by a reduction in his sentence, he cannot now use the plea to support his claim for damages for mental distress. Therefore, in my view, permitting a claim for damages because of the “forced guilty plea” amounts to an abuse of process.

[42] I can well understand that Boudreau suffered a serious depression in the 1990’s. But the causes likely lay elsewhere than Benaiah’s negligence. Boudreau was unemployed; his third marriage had broken up; he lost an acrimonious custody dispute; his elaborate abduction scheme floundered when his girlfriend turned him in to the police; his son was taken from him; he was charged with serious criminal offences for which he had no defence; and he was denied bail. Therefore, in my opinion, Boudreau’s claim for damages for mental distress must fail.

Conclusion

[43] Boudreau sued the appellants both in tort and in contract, as he was entitled to do. As neither cause of action gives him a practical advantage over the other, for the purpose of the formal judgment, I will deal with his negligence claim. Damages are an essential element of a cause of action in negligence. Because I have concluded that the damages claimed by Boudreau did not result from Benaiah’s negligence, I would set aside the judgment of the trial judge and dismiss the action. However, because Benaiah breached his duty of care to Boudreau I would order no costs of the trial. I would award the appellants their costs of the appeal if they demand them.

“John Laskin J.A.”

[^1]: (1998), 1998 14650 (ON SC), 37 O.R. (3d) 686 (Gen. Div.).

[^2]: R.S.C. 1985, c. C-46.

[^3]: See Waddams, The Law of Damages, Looseleaf edition (1996), 3.1250.

[^4]: For a detailed discussion of when a subsequent negligence action against a lawyer might amount to a collateral attack on previous criminal proceedings, see the recent judgment of Doherty J.A. in Wernikowski v. Firm of Kirkland, Murphy & Ain, a judgment of the Ontario Court of Appeal, delivered December 17, 1999, 1999 3822 (ON CA), [1999] O.J. No. 4812.