Court of Appeal for Ontario

Citation: Heald v. Campbell, 2008 ONCA 59

Date: 20080128

Docket: C46893

Before: BORINS, GILLESE and MacFARLAND JJ.A.

Between:

EDWARD HEALD Plaintiff (Appellant)

and

CHARLES CAMPBELL Defendant (Respondent)

Counsel: Edward Heald, in person William E. Pepall, for the respondent

Heard: January 22, 2008

On appeal from the judgment of Justice Ellen M. Macdonald of the Superior Court of Justice dated February 15, 2007.

ENDORSEMENT

[1] Mr. Heald appeals from the order of Macdonald J., dated June 7, 2007, striking his amended Statement of Claim and dismissing the action on the grounds that it fails to state a reasonable cause of action and that the action is an abuse of process. The action is a claim for damages for solicitor’s negligence in the conduct of a trial. The trial related to a prior action by Mr. Heald which he brought following a fire at Downsview Public School in May 1994 where Mr. Heald was employed as a teacher (the “underlying action”).

[2] In the underlying action, Mr. Heald challenged the handling of the aftermath of the fire by school and education officials. He alleged harassment, misfeasance, abuse of power and negligence. After a fourteen-day trial, the underlying action was dismissed on a number of bases including that he had failed to establish the causes of action, the claims were statute-barred, the court lacked jurisdiction over the subject matter as the disputes were subject to the grievance and arbitration procedure in the governing collective agreement, and that he had suffered no damages. Costs were ordered against Mr. Heald.

[3] Mr. Heald appealed to this court. In the course of the appeal, he introduced fresh evidence which included two letters from the Ministry of Labour (the “Letters”). This court dismissed the appeal on the merits but reduced the costs award. In the court’s endorsement, it noted that the “fresh evidence does not assist”. Leave to appeal to the Supreme Court of Canada was denied.

[4] In the present action, Mr. Heald alleges that his lawyer was negligent in the conduct of the trial of the underlying action. The alleged negligence is a failure to: bring a motion at the outset of trial regarding the production of certain documents; call certain witnesses; challenge the evidence of certain parties and witnesses; cross-examine diligently enough; object sufficiently to the trial judge’s interventions in the trial; exclude one defence counsel from settlement discussion correspondence; and produce the Letters.

[5] We see no basis to interfere with the order under appeal that the statement of claim fails to state a reasonable cause of action. Even if the alleged failures had not occurred and the respondent had done everything Mr. Heald alleges ought to have been done, the outcome in the underlying action would have been no different because the underlying action would have been dismissed on those grounds which are unrelated to the alleged failures of the respondent. For example, the determination that Mr. Heald had suffered no damages would have, nonetheless, been fatal to his claim in the underlying action, as would the finding that the claim was statute barred. Further, the alleged failures and omissions of the respondent do not constitute a breach of a solicitor’s standard of care – they are, at most, errors in judgment.

[6] At the oral hearing of this appeal, Mr. Heald advanced a different argument. In his response to a demand for particulars, there is a part of one sentence that might be construed as suggesting that had his lawyer introduced the Letters at a mid-trial settlement conference in the underlying action, he may have settled the matter. Had that occurred, he may not have been faced with a costs award. On this line of argument, he allegedly suffered damages. However, it remains that the alleged omissions do not constitute a breach of the standard of care. We would add that the appellant was fully aware of the Letters and, as they did not bear on the liability of the defendants in the underlying action, we do not see how the appellant might have taken any different view of the mid-trial settlement conference had they been presented at that time.

[7] In her reasons, the motion judge said “This action is an abuse of process.” However, this comment followed the motion judge’s earlier finding that, after a close examination of the amended statement of claim, she saw no basis for the appellant’s claims for damages and aggravated damages. Read in context, we understand her comment to mean that it would be an abuse of process if the action were to proceed and the matters that had been determined in the underlying action were relitigated. We take this opportunity to reiterate, however, that when it is alleged that a solicitor has been negligent in representing a plaintiff at his or her trial, it is necessary to revisit the trial for the purpose of determining if the result would have been different had the solicitor not been negligent. Indeed, this exercise cannot be avoided. It does not constitute relitigating the underlying action and, in the appropriate circumstances, is permissible: Folland v. Reardon (2005), 2005 CanLII 1403 (ON CA), 74 O.R. (3d) 688 (C.A.); Wernikowski v. Kirkland, Murphy & Ani (1999), 1999 CanLII 3822 (ON CA), 50 O.R. (3d) 124 (C.A.).

[8] Accordingly, we would dismiss the appeal with costs to the respondent fixed at $1,000, all inclusive.

“S. Borins J.A.”

“E.E. Gillese J.A.”

“J. MacFarland J.A.”