COURT OF APPEAL FOR ONTARIO

CITATION: Elmgreen v. Evans, 2013 ONCA 624

DATE: 20131015

DOCKET: C54906

Rosenberg, Watt, Pepall JJ.A.

BETWEEN

Jens Peter Elmgreen

Plaintiff

(Appellant)

and

J. William Evans

Defendant

(Respondent)

Jens Peter Elmgreen, in person

Richard W. Greene and Michael Zalev, for the respondent

Heard: October 9, 2013

On appeal from the judgment of Justice A.M. Mullins of the Superior Court of Justice, dated December 23, 2011.

APPEAL BOOK ENDORSEMENT

[1] The appellant appeals the December 23, 2011 judgment of Mullins J. in which she dismissed his claim of solicitor’s negligence and breach of fiduciary duty against his former lawyer, the respondent.

[2] The appellant also seeks leave to appeal the trial judge’s award of costs against him.

[3] On the issue of solicitor’s negligence, the appellant led no expert evidence on standard of care and the respondent’s conduct did not fall within either of the exceptions described in Krawchuk v. Scherbak 2011 Carswell Ont. 3015 (C.A.). Furthermore, the appellant did not establish that any breach caused any damages.

[4] On the evidence, it was also open to the trial judge to conclude that there was no breach of any fiduciary duty.

[5] Lastly, the trial judge found that the appellant knew as of February 9, 2006 at the latest, of all the circumstances giving rise to a claim against the appellant. The statement of claim was issued on July 10, 2008. The trial judge correctly concluded that in addition to not proving his case, the appellant’s claim was barred by the applicable limitation period.

[6] We see no error in the trial judge’s detailed analysis or conclusion. The appeal is therefore dismissed.

[7] On the issue of costs, deference is owed to a trial judge’s exercise of discretion in the fixing of costs absent an error in principle or a plainly wrong award.

[8] Here the award of $75,000 was fair and reasonable. Among other things, the respondent was completely successful at trial, he did better than his offer to settle, fraud was alleged and not proved, and the trial lasted 13 days.

[9] The request for leave to appeal the costs award is refused.

[10] The respondent seeks costs on a partial indemnity basis of $28,000 inclusive of taxes and disbursements. This is a fair and reasonable amount and is not questioned by the appellant.

[11] Accordingly, costs are fixed at $28,000 inclusive of HST and disbursements.