COURT OF APPEAL FOR ONTARIO

CITATION: Zhang v. Shanfield, 2013 ONCA 537

DATE: 20130903

DOCKET: C56677

Sharpe, Epstein and Lauwers JJ.A.

BETWEEN

Yuli Zhang and Changchun Xing

Plaintiffs (Appellants)

and

Stephen Shanfield

Defendant (Respondent)

Yuli Zhang and Changchun Xing in person

Mason Greenaway for the respondent

Heard: August 26, 2013

On appeal from the judgment of Justice Richard C. Gates of the Superior Court of Justice, dated January 25, 2013.

ENDORSEMENT

[1] The appellants appeal the dismissal of their action in negligence against the respondent solicitor who represented them with respect to a personal injury claim arising out of a motor vehicle accident. The matter was heard by way of summary judgment over several days and the motion judge delivered detailed reasons for judgment in which he canvassed the evidence and explained why, in his view, the appellants’ claims had no prospect of success and that summary judgment was appropriate.

[2] We are not persuaded that the motion judge erred.

Xing’s Claim

[3] With respect to the appellant Xing, there is no evidence the respondent was instructed to pursue a tort claim on Xing’s behalf. The respondent did advance an FLA claim that was settled by the successor lawyer. There is no evidence that Xing had a SABs claim or that the respondent was instructed to pursue any such claim.

[4] It follows that the motion judge did not err in dismissing the appeal with respect to Xing’s claim.

Zhang’s Claim

[5] The appellant Zhang asserts claims for damages with respect to both her tort claim and to her SABs claims.

(a) Tort

[6] We see no merit in the contention that by naming Xing as a co-plaintiff, the respondent solicitor somehow compromised Zhang’s tort recovery. There was clear liability on the part of the hit-and-run driver that would allow Zhang to recover her full damages from the driver (for which her own insurer would be liable), so that even if Xing’s negligence contributed to the accident, Zhang’s tort recovery would not have been affected.

[7] The appellants agreed to the settlement of Zhang’s tort claim recommended by the successor lawyer.

[8] We agree with the motion judge’s conclusion that there is no basis in fact to support a claim against the respondent with respect to Zhang’s tort claim.

(b) SABs

[9] While the respondent’s counsel conceded that there was no evidence in the record that the respondent had ever given Zhang a full briefing on her possible entitlement to SABs, we are not persuaded that the motion judge erred in concluding that Zhang had suffered no loss with respect to her SABs claims. The evidence of medical expenses incurred by Zhang in China well before the respondent was retained was insufficient to establish a claim against him with respect to any loss for medical SABs.

[10] Nor did the evidence substantiate a claim against the respondent with respect to attendant care, housekeeping and home maintenance SABs. Zhang met with her insurer’s representatives almost two years before she retained the respondent and made no mention of requiring or intending to seek attendant care benefits. If there were any such expenses, they were incurred in China before she returned to Canada and before she met with and retained the respondent.

[11] With respect to non-earner benefits (NEBs), the record indicates that Zhang applied for income replacement benefits (IRBs) prior to retaining the respondent and thereby certified that she was earning income from employment before the time of the accident. She also filed a medical certificate confirming her eligibility for IRBs but failed to file the required supporting documentation from her employers. The SAB regulation disallowed a claim for NEBs where the claimant is qualified for IRBs. Had she pursued her claim for IRBs, her tort recovery would have been reduced. We agree, accordingly, with the motion judge’s conclusion that the evidence failed to establish any compensable claim in relation to the negligence alleged against the respondent with respect to the manner in which he dealt with Zhang’s SABs claims.

[12] Finally we observe that the motion judge pointed out that, as there has never been a refusal by the insurer to pay IRBs or NEBs, the limitation period has not commenced to prevent her from claiming those benefits now.

[13] We conclude, accordingly, that the motion judge did not err in finding that there was no evidence led by the appellants that was capable of supporting a claim in damages against the respondent for the manner in which he dealt with the SABs claims.

Disposition

[14] For these reasons the appeal is dismissed. The respondent is entitled to costs, which we fix at $5000 inclusive of disbursements and applicable taxes.

“Robert J. Sharpe J.A.”

“Gloria Epstein J.A.”

“P. Lauwers J.A.”