Court of Appeal for Ontario
Citation: Baines v. Linett & Timmis, 2014 ONCA 888
Date: 20141210
Docket: C58605
Before: Weiler, Feldman and Benotto JJ.A.
Between
Eleanor Denise Baines
Appellant/Plaintiff
and
Linett & Timmis Barristers & Sollicitors
Respondent/Defendant
Counsel: Eleanor Denise Baines, acting in person Bruce Hutchison, for the respondent
Heard and released orally: December 8, 2014
On appeal from the judgment of Justice Paul M. Perell of the Superior Court of Justice, dated March 27, 2014.
ENDORSEMENT
[1] Ms. Baines sued her former solicitors in negligence. The firm brought a summary judgment motion to have her action dismissed. The motion was granted. Ms. Baines appeals and raises three grounds of appeal.
She alleges she was denied procedural fairness in the summary judgment hearing.
She submits that the issue of whether the firm was retained on a contingency basis or a fee basis was not res judicata and the motions judge erred in holding that it was.
She submits that the motions judge erred in dismissing her claim for professional negligence against the law firm and that there are credibility issues that raise a genuine issue for trial.
[2] In relation to the first issue, procedural fairness, Ms. Baines had written out her oral argument and proposed to read it to the motions judge. Instead, he adjourned court, read it, and then proceeded to ask her questions about it. Ms. Baines submits that by proceeding in this fashion the motions judge denied her the opportunity to refer to her references and that the questions asked by the motions judge did not follow the sequence they would have followed had she been permitted to argue orally and she was not able to answer as effectively. We see no merit in this ground of appeal. Ms. Baines did not object to the motions judge’s suggestion at the time. In response to the motions judge’s questions she made oral submissions and had the opportunity to build on her written submissions. There was no procedural unfairness.
[3] In relation to the second issue, the retainer dispute, Ms. Baines agreed to settle the firm’s claim for fees, subject to a claim for solicitor’s negligence. Justice Code’s order says, “the herein settlement resolves the fees dispute…and that issue is now res judicata.” That order was not appealed. Therefore, Ms. Baines’ claim for repayment of legal fees is barred – either by the settlement contract or the doctrine of res judicata.
[4] The final issue is whether the motions judge erred in dismissing Ms. Baines’ negligence claim against the respondent law firm. One of the requirements of a negligence action is that the plaintiff show that it is foreseeable that she will suffer injury, namely, damages. Ms. Baines alleges negligence by her law firm. After discharging her lawyers, Ms. Baines refused a subsequent offer of $100,000 to settle her tort claim. At trial, the jury awarded $2000 each for her pecuniary and non-pecuniary damages. On the motion, she was unable to put forward evidence that her lawyers’ alleged negligence years earlier in prosecuting her claim was the basis for the jury’s award. The motions judge did not err in granting summary judgment.
[5] Accordingly the appeal is dismissed.
[6] With respect to costs, the appellant is on social assistance. Her impecuniosity is conceded by the respondent although costs are requested. In the particular circumstances of this case, we have decided to exercise our discretion to award no costs.
“K.M. Weiler J.A.”
“K. Feldman J.A.”
“M.L. Benotto J.A.”