Court of Appeal for Ontario

Citation: Chudley v. Milne, 2007 ONCA 346

Date: 2007-05-08

Docket: C42083

Between:

Victoria Chudley Plaintiff (Appellant)

and

Warren Milne Defendant (Respondent)

Before: Labrosse, Juriansz and Rouleau JJ.A.

Counsel: Theodore B. Rotenberg for the Appellant Keith L. Geurts and Kerri Pope for the Respondent

Heard: May 2, 2007

On appeal from the judgment of Justice John E. Sheppard of the Superior Court of Justice dated May 17, 2004.

Endorsement

[1] The appellant appeals the summary judgment dated May 17, 2004, which dismissed her action with costs. She also appeals the costs order.

[2] The appellant, who was self-represented, commenced the present action in 2002 against the respondent, her former solicitor, for professional negligence. The action was in connection to another action commenced in 2000 by the appellant against numerous defendants for damages for harassment and interference, loss of enjoyment of life, pain and suffering and loss of employment income. In that action, the appellant retained the respondent but when the respondent became concerned about the appellant’s mental status, she commenced the action herself. In November 2000, the action was stayed until the appellant demonstrated proof of mental competency or a litigation guardian was appointed to represent her. The action is still stayed.

[3] It is admitted, on behalf of the appellant, that the statement of claim in the present action is prolix, argumentative and non-compliant with the Rules of Civil Procedure. It is more than that. It is literally incomprehensible.

[4] On the motion for summary judgment, the appellant had no evidence to support the allegations made against the respondent in her self-serving affidavit. She has chosen not to resurrect the 2000 action which is the basis for her claim of professional negligence.

[5] On appeal the appellant had counsel, who advanced new arguments dealing with alleged conflicts in the evidence. Counsel submitted that there was a genuine issue for trial regarding the content of the respondent’s retainer and whether he had carried out the appellant’s instructions to conduct an investigation. Notwithstanding these submissions, there was no evidence before the motion judge that the respondent breached the standard of care. The motion judge was satisfied that the respondent had reasons to doubt the mental capacity of his client. There was no expert or other evidence suggesting that, faced with this situation, the respondent’s conduct fell below the standard of care.

[6] We consider that the motion judge treated the unrepresented appellant appropriately during the one and a half day hearing. No degree of assistance would have enabled her to overcome the lack of evidence that the respondent had breached the standard of care in the unusual circumstances of this case.

[7] The appellant has also appealed the costs order made by the motion judge. The costs issue was not addressed in her factum or during oral argument. The motion judge, subject to minor adjustments, accepted the draft bill of costs submitted by the respondent’s solicitors. We see no basis to interfere.

[8] Accordingly, the appeal is dismissed with costs, fixed at $10,000.00, inclusive of disbursements and G.S.T.

“J-M. Labrosse J.A.”

“R. Juriansz J.A.”

“Paul Rouleau J.A.”