Court of Appeal for Ontario

Citation: Rivait v. Monforton, 2007 ONCA 829

Date: 2007-11-30

Docket: C44537

Between:

Annette Rivait Plaintiff (Appellant)

and

Gregory J. Monforton Defendant (Respondent)

Before: Blair, Juriansz and MacFarland JJ.A.

Counsel: Robert G. Matlack and A. Giannotti for the appellant Paul Ledroit and Mary-Anne Strong for the respondent

Heard: November 28, 2007

On appeal from the judgment of Justice Helen A. Rady of the Superior Court of Justice dated November 1, 2005.

Appeal Book Endorsement

[1] The appellant claimed against Mr. Monforton for professional negligence in effecting a settlement on her behalf following an automobile accident. It was alleged, essentially, that he settled the case too soon and for too little. Her action was dismissed by Rady J.

[2] The appeal is factually driven and we would not interfere with the decision of the trial judge, whose findings were amply supported by the evidence. She found that the appellant was motivated to settle early and that Mr. Monforton did not fall below the standard of care required of a reasonably competent lawyer in settling the case then, and on the terms that he did. A critical consideration with respect to settlement was the potential deductibility of disability benefits the appellant was receiving from any award she might obtain. In this respect, and with respect to the standard generally, the trial judge preferred and accepted the evidence of the respondent’s experts over that of the appellant’s expert, which it was open for her to do.

[3] Mr. Matlack submits that the trial judge erred in qualifying Mr. Torrie as an expert on behalf of the respondent. We disagree. Mr. Torrie is a lawyer who practised litigation for five years but who had concentrated on practising as a mediator for ten years before the trial. He had mediated over 4500 cases, 70% of which were motor vehicle accident claims. The trial judge ruled that his evidence would be relevant and necessary in addressing the issues of the quantum of the settlement and more importantly, the relevant legislation and the issue of deductibility and its impact on settlements concluded during the relevant time. We see no error in this.

[4] The appellant also submitted that the trial judge erred by permitting the testimony of the defence expert, Nigel Gilby, because of a breach of the trial judge’s order excluding witnesses.

[5] During the course of Mr. Gilby’s testimony, the trial judge became concerned that there may have been a breach of the order. She questioned Mr. Gilby, who assured her that he had not discussed the plaintiff’s expert’s testimony with Mr. Ledroit. Subsequently, in his written submissions, Mr. Ledroit advised that he spoke to Mr. Gilby on the telephone the same day that the plaintiff’s expert completed his testimony and had advised Mr. Gilby on that date that the plaintiff’s expert had testified that Mr. Gilby was mistaken about the year of a certain article he had referred to in his report. Mr. Ledroit had asked Mr. Gilby to be prepared to address the issue where he testified.

[6] The trial judge stated that she accepted Mr. Ledroit’s explanation, which was rooted in his misunderstanding of the terms of the exclusion order. She determined, in the end, however, that the article in question, whenever it was published, did not detract from her conclusions in the case. We cannot say she erred in this regard. The fact that there has been a breach of an order excluding witnesses does not operate automatically, as a matter of law, to exclude the evidence of the witness in question. Rather, it is for the trial judge to determine, in the circumstances of the case, what impact the breach may have had on the fairness of the trial and the weight to be given to witnesses’ testimony. That is what the trial judge did here.

[7] The appeal is therefore dismissed. The respondent is entitled to his costs of the appeal fixed at $12,500 plus disbursements and GST and taking into account the effect of the order of Labrosse J.A. dated April 17, 2007.