Court of Appeal for Ontario

Citation: Broesky v. Lüst, 2012 ONCA 701

Date: 2012-10-16

Docket: C53731

Before: Goudge, Simmons and Juriansz JJ.A.

Between:

Rosalyn Faith Broesky

Plaintiff (Appellant)

and

Arthur Lüst

Defendant (Respondent)

Counsel:

Rebecca Huang and Jeffrey Potter, for the appellant

Eric Williams and Ashlee Barber, for the respondent

Heard: October 12, 2012

On appeal from the judgment of Justice Jennifer Mackinnon of the Superior Court of Justice, dated January 17, 2011.

Appeal Book Endorsement

[1] The appellant raises two issues on this appeal.

[2] First, she says the trial judge erred in finding that the respondent was not obliged to reduce to writing that he was not retained to act on the tort and accident benefit claims. We do not agree.

[3] Given the basis on which this appeal proceeded it is clear that the trial judge found as a fact that the appellant, despite her health challenges, understood what she had and had not retained the respondent for. There was no basis in the evidence, given these facts, to extend the respondent’s duty of care to putting in writing what the appellant already understood, namely that she had not retained him for the tort and accident benefit claims.

[4] Second, the appellant says that the trial judge erred in failing to decide whether the respondent’s duty of care extended to reviewing the applicable limitation periods with her.

[5] Again, we do not agree. The trail judge found that the appellant had not established that the respondent’s duty to her extended to this and had called no expert evidence that would suggest otherwise. There is no basis for us to interfere with that finding. Moreover, the trial judge clearly found as a fact that the respondent had reviewed the limitation periods with her thereby satisfying any duty had one been found to exist.

[6] In all the circumstances the appeal must be dismissed, with costs fixed at $6,000 in total in favour of the respondent.