Court of Appeal for Ontario

Date: 2018-03-26 Docket: C64127

Judges: Doherty, Rouleau and Miller JJ.A.

Between

Garfield Anthony Hibbert Appellant

and

Carlin McGoogan Respondent

Counsel

Vivek David, for the appellant

Michael Kestenberg, for the respondent

Heard: March 22, 2018

On appeal from: The judgment of Justice Patrick Monahan of the Superior Court of Justice, dated July 12, 2017, with reasons reported at 2017 ONSC 4292.

Reasons for Decision

[1] The appeal was dismissed with reasons to follow. These are those reasons.

[2] The appellant appeals the dismissal of his claim for negligence against the respondent solicitor. The appellant had commenced several actions in Superior Court and Small Claims Court, and later retained the respondent to assume carriage of three of the actions. The appellant alleges that the respondent's errors caused two of the actions to be dismissed, and prevented the execution of the judgment ultimately obtained in one of those actions. He also alleges that a third action was not prosecuted diligently, resulting in a judgment that could not be executed as the defendant had filed for bankruptcy.

[3] On the summary judgment motion, the judge found that the appellant had failed to adduce sufficient evidence in support of the claims of negligence, and in any event failed to establish any resulting loss.

[4] The appellant advances three grounds of appeal. First, he argues that the motion judge erred in dismissing the court reporter and proceeding with no court reporter present.

[5] We see no merit in this ground. The summary judgment motion was argued based on a paper record without any oral evidence being adduced. A court reporter was not required.

[6] The second ground put forward is that the motion judge ought to have referred the matter to trial because, in the appellant's submission, there were facts in dispute requiring credibility findings.

[7] We disagree. As found by the motion judge, the record was sufficient to decide the matter. The basis of his decision was that the appellant simply failed to advance adequate evidence supporting his allegations of negligence or loss caused by that alleged negligence. This contrasted with the respondent's comprehensive materials showing that the dismissals and delays were not caused by the errors he is alleged to have committed. In fact, with respect to the third action, the motion judge found that the delay was caused by the appellant's failure to provide timely instructions and the required retainer.

[8] The third ground advanced is that the motion judge made factual errors and applied the wrong standard of proof. Among the errors alleged, the appellant submits that the motion judge erred in refusing to consider the similar fact and circumstantial evidence tendered. In the appellant's submission, this evidence demonstrated a pattern of court documents being sent to the wrong address, such that the only reasonable inference is that the respondent provided the court with the wrong address.

[9] We disagree with this interpretation of the motion judge's reasons. The motion judge considered the similar fact evidence. He simply chose not to draw the inference proposed by the appellant, preferring the evidence of the respondent to the effect that the correct information had been provided to the court. This finding was available to him on the record.

[10] The appellant also argues that the motion judge erred in finding that the appellant had not proven that he suffered any losses as a result of the alleged negligence.

[11] With respect to the first action, the appellant maintains that the motion judge improperly speculated that he may have been awarded costs for having successfully set aside its dismissal, offsetting any loss he may have suffered. We reject this argument. It is the absence of any evidence of loss that supported the motion judge's disposition of the appellant's claim with respect to the first action. Any comment allegedly made by the motion judge during the hearing with respect to the possibility of costs was likely simply an explanation as to why losses must be proven, rather than assumed, in order to support a claim in negligence.

[12] As for the second action, the appellant maintains that the motion judge relied on the erroneous proposition that the preparation of a second identical claim was a prudent response to the original claim having been dismissed. The second identical claim was pursued by the appellant and judgment of $9,000 plus costs was obtained. In his submission, he is unable to recover on this judgment as pursuing a second identical claim in these circumstances is an abuse of process. The respondent's preparation of this claim was therefore negligent and resulted in damages.

[13] Counsel for the respondent effectively conceded, and we agree, that the motion judge erred in describing the issuance of a second identical claim as a prudent measure. We nonetheless agree with the motion judge that the appellant had not provided evidence that he cannot execute on the judgment or that he has otherwise suffered a loss as a result of the alleged negligence.

[14] The appellant's claim with respect to the third action was similarly deficient. As conceded by the appellant's counsel, there is no evidence suggesting that, even if the action had been pursued with diligence, judgment could have been obtained and recovery effected before the bankruptcy of the defendant in that action.

[15] As for the burden of proof, it is well-established that on a motion for summary judgment, the responding party is required to put his best foot forward and show that there is a genuine issue for trial. Even assuming that there was some basis for finding that the respondent was negligent in handling one or more of the appellant's files, the appellant failed to meet that onus, and in particular failed to produce any evidence that a loss was incurred.

[16] For these reasons, the appeal is dismissed. Costs to the respondent fixed at $7,500 inclusive of disbursements and applicable taxes.

"Doherty J.A."

"Paul Rouleau J.A."

"B.W. Miller J.A."