Mitchinson et al. v. Baker et al.

[Indexed as: Mitchinson v. Baker]

Ontario Reports

Court of Appeal for Ontario,

Gillese, Pepall and Benotto JJ.A.

September 17, 2015

128 O.R. (3d) 220 | 2015 ONCA 623

Case Summary

Actions — Bars — Abuse of process — Plaintiffs suing their former lawyer for damages for fraudulent misrepresentation — Motion judge not erring in finding that action was abuse of process as it was brought to provide leverage in plaintiff's application for assessment of defendant's account.

Insurance — Insurer's duty of care — No duty of care existing between insurer and party adverse in interest to its insured.

Torts — Fraudulent misrepresentation — Lawyer's estimate of fees not amounting to representation of fact or promise — No reasonable person could find that defendant lawyer intended to mislead when he gave estimation of his fees. [page221]

The defendant B acted for the plaintiff in a human rights complaint. The plaintiff was taking steps to have B's account assessed. She and her husband brought an action against B for damages for fraudulent misrepresentation. They also sued the defendant LPIC on the basis that LPIC chose to represent B in the various legal proceedings which they had commenced and was therefore an "accessory after the fact" to B's alleged fraudulent misrepresentation. The motion judge granted a motion by LPIC to strike the statement of claim against it on the basis that it disclosed no reasonable cause of action and a motion by B to dismiss the action against him on the basis that it was frivolous, vexatious and an abuse of process. The plaintiffs appealed.

Held, the appeal should be dismissed.

The motion judge correctly found that no duty of care exists between an insurer and a party adverse in interest to its insured and that no action lies against the lawyers acting for one's adversary in litigation.

The motion judge did not err in dismissing the action against B as an abuse of process. The action was brought not to vindicate a wrong suffered by the plaintiffs but to provide leverage in their application for assessment of B's account. The motion judge correctly found that the allegation of fraudulent misrepresentation could not succeed because, among other things, an estimate of fees does not amount to a representation of fact or a promise and no reasonable person could find that B intended to mislead when he gave an estimate of his fees.

Metrick v. Deeb, [2003] O.J. No. 2221, 172 O.A.C. 229, 16 C.C.L.T. (3d) 298, 123 A.C.W.S. (3d) 831, 2003 804 (C.A.), consd

Other cases referred to

Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, 2003 SCC 63, 232 D.L.R. (4th) 385, 311 N.R. 201, J.E. 2003-2108, 179 O.A.C. 291, [2003] CLLC Â220-071, 17 C.R. (6th) 276, REJB 2003-49439, 120 L.A.C. (4th) 225, 59 W.C.B. (2d) 334

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 21.01(3)(d), 25.11

APPEAL from the order of Ramsay J. of the Superior Court of Justice dated September 23, 2014 granting motions to strike the statement of claim and dismiss an action.

Elisabeth Mitchinson and Timothy Mitchinson, acting in person.

Adam J. Huff, for respondent Lawyers' Professional Indemnity Company.

Louis C. Sokolov and Krishana Persaud, for respondent David Baker.

BY THE COURT: --

Overview

[1] David Baker (the "respondent") represented Elisabeth Mitchinson in a human rights complaint that she brought relating [page222] to the termination of her employment. He settled the complaint on terms that were favourable to Ms. Mitchinson. Ms. Mitchinson, however, was unhappy with the respondent's fee, which was more than the estimate that he had given to her. As a result, she fired him before the settlement was finalized and then took steps to have his account assessed. In the following two years, Ms. Mitchinson and her husband (the "appellants") commenced a number of proceedings relating to the respondent's account.

[2] The basis for the action which gives rise to this appeal is the appellants' allegation that the respondent agreed to cap his fee at $30,000 but subsequently charged Ms. Mitchinson more than that amount. The defendants in this proceeding are the respondent and the Lawyers' Professional Indemnity Company ("LPIC").

[3] LPIC brought a motion to strike the statement of claim against it on the basis that it disclosed no reasonable cause of action.

[4] The respondent moved to have the action dismissed as against him on the basis that it was frivolous, vexatious and an abuse of process of the court.

[5] The motion judge granted both motions.

[6] The appellants appeal.

[7] For the reasons that follow, we see no basis for interfering with the decision below.

Analysis

(1) LPIC

[8] In their claim against LPIC, the appellants asserted that LPIC was aware that the respondent had committed "fraudulent misrepresentation" when he mis-estimated his legal fees but, nonetheless, LPIC chose to represent the respondent in the various legal proceedings which they had commenced. Thus, the appellants alleged, LPIC was an "accessory after the fact" to the respondent's alleged fraudulent misrepresentation.

[9] The motion judge correctly found that no duty of care exists between an insurer and a party adverse in interest to its insured and that no action lies against the lawyers acting for one's adversary in litigation. His reasons also explain why the allegations in the appellants' statement of claim did not disclose a reasonable cause of action in respect of conspiracy, intentional infliction of mental distress, abuse of process or accessory after the fact. We see no error in the motion judge's reasons or result in respect of these various alleged causes of action. [page223]

[10] The appellants also submitted that the motion judge improperly considered the evidence when he decided the LPIC motion. We do not agree.

[11] Under the heading "Pleadings Disclosing no Reasonable Cause of Action", at p. 8 of his reasons, the motion judge stated: "This motion is decided on the pleadings alone". A review of the motion judge's reasons show that he did, indeed, decide LPIC's motion based only on the pleadings. For example, when dealing with the appellants' submission that LPIC was liable on the basis of conspiracy, the motion judge noted that conspiracy requires an intention to cause harm to a person and that no such intention was pleaded or could be inferred from the acts pleaded.

(2) The respondent

[12] The appellants are correct that the motion judge considered evidence when he decided the respondent's motion. However, the motion judge made no error in doing so, given that the respondent's motion was brought under rules 21.01(3)(d) and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[13] The appellants submit that the motion judge used the wrong test when deciding whether their action was an abuse of process. They rely on Metrick v. Deeb, [2003] O.J. No. 2221, 2003 804 (C.A.) for this submission.

[14] The legal test set out in Metrick does not apply to the respondent's motion. The test articulated in Metrick is for the tort of abuse of process. The respondent's motion is based not on the tort of abuse of process but on the doctrine of abuse of process. Those two matters are fundamentally different in law and each has its own legal requirements.

[15] The Supreme Court of Canada decision in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, 2003 SCC 63, at paras. 35-53, explains that the doctrine of abuse of process is discretionary and not confined to set categories. The general purpose of the doctrine is to bar proceedings that are inconsistent with public policy considerations such as finality, judicial economy, consistency of results and the integrity of the justice system. The motion judge was applying these principles when he found, at p. 6 of his reasons, that this action, as against the respondent, was an abuse of process. He found that the action had been brought not to vindicate a wrong suffered but to provide leverage in another proceeding: the appellants' application for assessment of the respondent's account.

[16] The motion judge also found that the allegation of fraudulent misrepresentation could not succeed because, among other [page224] things, an estimate of fees does not amount to a representation of fact or a promise and no reasonable person could find that the respondent intended to mislead when he gave an estimate of his fees. We do not see an error in this determination. In reaching this conclusion, it is important to recognize two things. First, the motion judge's determination that the allegation of fraudulent misrepresentation could not succeed was made as part of the respondent's abuse of process motion. Consequently, as previously explained, the motion judge was entitled to consider evidence in making that determination. Second, and in any event, the appellants' pleadings acknowledge that the quoted fee was an estimate only.

[17] The appellants' also submitted that the motion judge erred in his treatment of their request to admit. The request to admit was not part of the record before us and, therefore, cannot properly be considered on this appeal. In any event, however, LPIC responded to the request to admit and denied the allegations, and the respondent filed his affidavit in response to the request to admit, which affidavit was effectively a denial.

[18] Finally, we do not accept the appellants' claim that the motion judge was biased nor did the record reflect any basis for a reasonable apprehension of bias. A review of the transcript shows that the motion judge's interventions -- including his responses such as "enough, enough, enough, enough" and "[y]ou're not helping yourself by saying that" -- were aimed at controlling the court process and helping the parties to focus on matters of relevance to the motions. They do not leave the impression that the motion judge lacked an impartial mind when deciding the motions.

Disposition

[19] Accordingly, the appeal is dismissed with costs to the respondent and to LPIC fixed at $6,500 and $3,500 respectively.

Appeal dismissed.

End of Document