Court of Appeal for Ontario

Citation: Reilly v. Johnson and Junger Law Firm, 2016 ONCA 768 Date: 20161019 Docket: C61893

Strathy C.J.O., LaForme and van Rensburg JJ.A.

Between

Paul Duncan Reilly

Applicant (Appellant)

and

Johnson and Junger Law Firm

Respondent

Counsel: Paul Duncan Reilly, acting in person Charles Sinclair, for the respondent

Heard: October 13, 2016

On appeal from the order of Justice Catrina D. Braid of the Superior Court of Justice, dated February 23, 2016.

ENDORSEMENT

[1] The appellant appeals the order of Braid J. dated February 23, 2016, striking his claim in its entirety against a lawyer who represented the appellant’s former spouse in family law proceedings, George Johnson, and her current lawyer, Kathryn Junger.[^1]

[2] The statement of claim alleges that Johnson’s conduct caused the appellant delays, distress and hardship in the course of his family law proceedings. Specifically, the appellant pleads (1) that Johnson made a threatening telephone call telling him that he would “make him pay” if he refused to consent to an adjournment; and (2) that during a motion to set aside a Registrar’s dismissal order, Johnson misled the court about whether the appellant was present on a previous court date (which resulted in the order of Steinberg J. dated August 3, 2012 refusing to set aside the dismissal).

[3] The appellant appealed the Steinberg J. order to this court. His appeal was dismissed on June 5, 2013. His motion for leave to appeal that order to the Supreme Court of Canada was denied.

[4] The appellant also filed a complaint about these incidents with the Law Society of Upper Canada (“LSUC”) in June 2013. LSUC investigated and closed its file.

[5] The respondent moved under rule 21 to strike the claims asserted in the statement of claim. The motion judge struck the claim in its entirety, without leave to amend. As for the claims related to Johnson, she found that there was no duty owed by the defendant solicitors to the appellant as an opposing client. She also concluded that the action was an abuse of process, as a collateral attack on the family court and LSUC decisions. She found that the claims against Junger alleging that, as the current lawyer for the appellant’s former spouse, she was causing delay in the family law proceedings, were frivolous and an abuse of process.

[6] The appellant raises four arguments on appeal. We do not give effect to any of them.

[7] First, the appellant contends that the motion judge, in striking his claims, erred in failing to consider the complete case history, which he says demonstrated fraud on the part of opposing counsel.

[8] The “complete case history” asserted by the appellant - consisting of the various communications about his grievances against his former spouse’s lawyers in the family law proceedings and to LSUC - was irrelevant and immaterial with respect to whether the claim disclosed a cause of action. Only the facts pleaded in the statement of claim (and presumed to be true) were relevant, and could be considered by the motion judge.

[9] As for whether the claims were an abuse of process, the appellant’s other proceedings were relevant, and confirmed that the appellant was seeking to relitigate matters already determined against him in the family law proceedings and the disposition of his LSUC complaint.

[10] Second, the appellant contends that the motion judge erred in concluding that there was no reasonable cause of action. Before the motion judge, and again in this court, the appellant framed his claim against the lawyers as a breach of their duty to the court, or a breach of the Rules of Professional Conduct. The motion judge was correct in concluding that such allegations would not support a cause of action in favour of the appellant against the lawyers.

[11] Third, the appellant asserts that the motion judge was biased, relying on part of a statement where she said, in her reasons: “It would be outrageous in my view for a lawyer to be sued…”. What the motion judge said was the following: “It would be outrageous in my view for a lawyer to be sued because of perceived delays or delay tactics that she takes on behalf of a client in a family law proceeding”. There is no actual or apprehended bias here. A review of the entire transcript reveals that the motion judge dealt fairly with the appellant and the motion in all respects.

[12] Finally, the appellant argues that the motion judge erred in finding that his action was an abuse of process. Again, we see no error in the motion judge’s conclusions, first that the action against the lawyer Junger, based solely on allegations of delay in the family law proceedings, was frivolous and an abuse of process, and that the claims against Johnson were an abuse of process as a collateral attack on decisions made in other proceedings.

[13] For these reasons, the appeal is dismissed. Costs to the respondent in the sum of $6,000, inclusive of disbursements and applicable taxes.

“G.R. Strathy C.J.O.”

“H.S. LaForme J.A.”

“K. van Rensburg J.A.”

[^1]: The appellant named as defendant to the action “Johnson and Junger Law Firm”. As the respondent pointed out, Johnson, who is deceased, was not a member of a firm with Junger. Junger took over the representation of the appellant’s former spouse in the matrimonial proceedings after Johnson’s death.