Court of Appeal for Ontario

CITATION: Harris v. Levine, 2011 ONCA 530

DATE: 20110720

DOCKET: C53216

BEFORE: Doherty, Laskin and Simmons JJ.A.

BETWEEN

Mark Harris and Fiona Harris

Appellants (Plaintiffs)

and

Lorne Levine

Respondent (Defendant)

COUNSEL:

Joseph Markin, for the appellants (plaintiffs)

Louis Sokolov, for the respondent (defendant)

HEARD: July 14, 2011

On appeal from the decision of Justice E. Eva Frank of the Superior Court of Justice dated October 14, 2010.

APPEAL BOOK ENDORSEMENT

[1] With respect to the motion judge, we think that it is artificial to distinguish between the trial phase and the sentencing phase of the criminal process when addressing allegations of solicitor’s negligence and tolling of the limitation period. The appellants alleged negligence in the conduct of the defence relating to both the pre and post-verdict phases. The limitation period did not begin to run until the trial was complete and the sentence imposed.

[2] The respondent also raises an abuse of process argument based on the appellants’ convictions which were offered on appeal. There may be merit to that argument and, if so, it can be advanced at trial.

[3] The appeal is allowed. Costs to the appellants fixed at $1,500 in this court and $1,500 in the court below, inclusive of disbursements and all applicable taxes.