Court of Appeal for Ontario

Citation: D’Souza v. Linton, 2012 ONCA 11

Date: 2012-01-09

Docket: C54051

Between:

John Joseph aka John D’Souza and Peter D’Gama Plaintiffs/Appellants

and

Ritchie James Linton, Robert Jagielski, Krystyna Woldanska, Isabella Woldanska, Agnieszka Woldanska, Karolina Gill, Bobby Mukhtiar Gill, Polish Credit Union, Royal Bank of Canada, A. Farber & Partners Inc., The Law Society of Upper Canada and The Superintendent of Bankruptcy Defendants/Respondents

Before: Sharpe, Blair and Rouleau JJ.A.

Counsel:

Joseph Markin, for the appellants

Adrienne Lei, for the respondents

Heard & released orally: January 5, 2012

On appeal from the judgment of Justice Andra M. Pollak of the Superior Court of Justice dated June 15, 2011.

ENDORSEMENT

[1] The appellants argue that the motion judge erred in striking out the statement of claim under Rule 21 as against the Law Society of Upper Canada. The appellants’ claim relates to the actions of lawyers who acted for other parties. They argue that the Law Society of Upper Canada is liable in negligence for failing to take appropriate action against those lawyers. There is nothing in the statement of claim or the reply to suggest that the appellants had any contact with the Law Society of Upper Canada. They assert the claim as members of the public.

[2] In our view, the claim is precluded by the decision of the Supreme Court of Canada in Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562.

[3] We do not accept the submission that the later decision of the Supreme Court in Finney v. Barreau du Québec, 2004 SCC 36 assists the appellants. The decision in Finney turned on the fact that the plaintiff had filed several complaints against the solicitor and that the Barreau dealt with those specific complaints in a seriously careless and reckless fashion. The required element of proximity that arose in Finney because of the direct contact between the plaintiff and the Barreau is absent in this case.

[4] There is nothing in the record or the submissions made before us to suggest that the proximity issue could be rectified by amending the pleading. Accordingly, this is not a case to grant leave to amend.

[5] For these reasons, the appeal is dismissed. Costs to the respondent fixed at $4,445.77 inclusive of disbursements and HST.

“Robert J. Sharpe J.A.”

“R.A. Blair J.A.”

“Paul Rouleau J.A.”