Court of Appeal for Ontario

Date: September 25, 2017 Docket: C63021 Judges: Doherty, LaForme and Miller JJ.A.

Between

SMTCL Canada Inc. Plaintiff (Respondent)

and

Master Tech Inc. Defendant (Appellant)

Counsel

Fariborz Mirzaee Tavana, for the appellant

Carlin McGoogan, for the respondent

Jeff Van Bakel, for the intervener, Wajeb Assaf

Heard: September 22, 2017

On appeal from the judgment of Justice Frederick Myers, of the Superior Court of Justice, dated November 8, 2016.

Appeal Book Endorsement

[1] We see no error in the motion judge's reasons. He explained how he arrived at his assessment of the loss suffered by the respondent (para. 5). We see no error in that assessment.

[2] The main issue raised on appeal relates to the alleged negligence and dishonesty of the appellant's lawyer.

[3] This court has recognized that claims of solicitor's negligence raised in the context of an appeal from an order in the litigation in which the lawyer represented one of the parties can provide a basis for setting aside that order only in the "rarest of cases": W. (D.) v. White (2004), 189 O.A.C. 256, at para. 55.

[4] The only possible basis for accepting the submission in this case would be collusion between the lawyer and the respondent. There is nothing in the material before us offering an air of reality to that claim.

[5] This is not the appropriate forum in which to raise the claim against the solicitor. If those claims have any viability, they can be fully vindicated in a lawsuit brought against the lawyer.

[6] We, of course, intend no comment on the merit, if any, of the allegations made against the lawyer. It should be noted, however, that he strongly denies those allegations.

[7] The appeal is dismissed.

[8] Costs are awarded to the respondent on a partial indemnity basis. Costs to the respondent in the amount of $13,000, "all in". We are told the appellant has posted $7,500 as security for costs in this court. This amount should be returned to the respondent's lawyer on trial as partial payment on the costs.

[9] We are also satisfied that the intervener should have his costs on a partial indemnity basis. We fix those costs at $6,000, "all in".