DATE: 20031223

DOCKET: M30421 (C36974)

COURT OF APPEAL FOR ONTARIO

RE: D.W. (Plaintiff/Appellant) – and – DEBBIE WHITE, LYNNE KANTAUTAS, THE DURHAM REGIONAL POLICE SERVICES BOARD, THE CHILDREN’S AID SOCIETY OF THE DURHAM REGION, MARIA D’ASSISI, I.J. (Defendants/Respondents)

BEFORE: ABELLA, CRONK and ARMSTRONG JJ.A.

COUNSEL: Lorne Honickman for the plaintiff/appellant

David R. Neill for the defendant/respondent Debbie White, Lynne Kantautas and The Durham Region Police Services Board

Alexander D. Pettingill for the defendants/respondents Maria D’Assisi and the Children’s Aid Society of the Durham Region

Joanne Ferguson for the defendant/respondent I.J.

HEARD: December 17, 2003

E N D O R S E M E N T

[1] This is a motion to quash that part of an appeal that relies on the alleged incompetency of the appellant’s counsel at trial.

[2] The moving parties rely on three grounds: 1) that there is, in this jurisdiction, no civil case in which the incompetency of counsel has ever been accepted as a basis for an appeal; 2) that an appeal on this ground represents an abuse of process because the appellant signed a release and recovered a sum of money for damages in the negligence action he brought against his lawyer for the same incompetence; and 3) that there is manifestly no merit to the appeal relating to this issue or relating to the ground that a mistrial ought to have been ordered and the ground relating to the appeal from the finding there was no defamation by I.J..

[3] We need only deal with the mistrial argument because it is, in our view, decisive of whether the motion to quash part of the appeal should be granted. Although counsel for the moving parties advised us that such evidence existed, there was insufficient evidence from the transcript actually presented to us to assist in determining whether this ground was so devoid of merit as to warrant it being quashed. In the absence of such evidence, the ground relating to the mistrial will be argued on the appeal. While the moving parties may well be right that this ground will fail on appeal, it is also true that if it succeeds, the appellant will be entitled to a new trial on all issues. Given this possibility, however remote, we think the grounds of appeal are sufficiently interrelated that they should not be severed and are best left to be considered by the panel hearing the appeal.

[4] The motion to quash is therefore dismissed. Having regard to the appellant’s assertion of incompetency by his trial counsel, the appellant’s former counsel and his law firm should both be served by the appellant with all relevant materials and given the opportunity to make written and/or oral representations about the allegations made against them, if they so wish.

[5] The moving parties will have 75 days from the date of this order to serve and file their factums. Costs of this motion will be reserved to the panel hearing the appeal.

“R.S. Abella J.A.”

“E.A. Cronk J.A.”

“Robert P. Armstrong J.A.”