Court of Appeal for Ontario

Date: 2018-10-02 Docket: C65261

Judges: Simmons, Miller and Fairburn JJ.A.

Between

Lynette C. Inspektor and Eric R. Inspektor Plaintiffs (Appellants)

and

Melvyn L. Solmon Defendant (Respondent)

Counsel

Eric R. Inspektor, acting in person

Ian McKellar, for the respondent

Heard

September 27, 2018

On Appeal

On appeal from the order of Justice Edward M. Morgan of the Superior Court of Justice, dated March 14, 2018, with reasons reported at 2018 ONSC 1743.

Reasons for Decision

[1] The appellants claim that the respondent was professionally negligent in failing to protect their interests in the negotiation of the settlement of an action brought against them. They also maintain the respondent failed to account for funds paid towards their legal bill and misappropriated other funds secured by a mortgage, and that he consequently owes them money.

[2] The respondent brought a motion for summary judgment to dismiss the appellants' action. The motion judge observed that the appellants had "really put no foot forward at all" on the motion. Rather, the record demonstrated that the appellants were fully informed of the terms of the settlement agreement, that they agreed to those terms, and that the terms actually inured to their benefit. Moreover, there was no evidence to suggest that the respondent's billings were inappropriate or excessive. The motion judge dismissed the appellants' action on the basis that there was no genuine issue for trial.

[3] This is an appeal from the order dismissing the claim. The appellants raise three grounds of appeal.

First Ground of Appeal: Mischaracterization of Allegations

[4] First, the appellants argue that the motion judge erred by mischaracterizing the allegations in their statement of claim. They say that the motion judge mischaracterized their complaint as being about an improvident settlement. They maintain that their complaint is actually about the respondent's failure to negotiate a non-disparagement clause. We reject this submission.

[5] Although the motion judge characterized the appellants' complaint as broader than what is now suggested, a characterization that is supported by the allegations in the statement of claim, the motion judge specifically addressed the issue raised on appeal. He simply rejected the allegation made. In that regard, the motion judge noted that correspondence in the record showed that the respondent advised the appellants that a non-disparagement clause would not be agreed to by the plaintiffs in the predicate action, but that the settlement agreement was still an "advantageous" one and that this was acknowledged by the appellants.

Second Ground of Appeal: Billing and Misappropriation Claims

[6] The appellants also argue that the motion judge misconstrued their position regarding the respondent's billings. The appellants say that the motion judge erred in characterizing their complaint as the respondent charging them too much for services rendered. Rather, the appellants say that their complaint is that the respondent owed them money arising from what they allege was a misappropriation of $150,000 from a mortgage given to his firm to secure specific legal fees.

[7] Although we should not be taken as agreeing, in any way, that the respondent mishandled any of the appellants' money, as a practical matter, nothing turns on this issue. The fact is that Mr. Inspektor signed a statutory declaration, acknowledging that he owed the respondent an amount of money that far exceeds the $150,000 claim.

[8] In any event, we disagree that the motion judge mischaracterized the issue as one relating to the amount of fees owed. Read contextually, the statement of claim shows that the appellants allege that the respondent charged too much for services rendered. Moreover, the appellants' factum in this court continues to allege that the respondent charged them too much. The motion judge accurately summarized their complaint and rejected it. We would not interfere.

Respondent's Affidavit Evidence

[9] As for the appellants' argument that the respondent should not have been permitted to address certain facts in his affidavit filed in response to their claim, we disagree. The appellants alleged serious misconduct on the part of the respondent and it was open to him to address the issues raised in order to defend against the allegations made.

Third Ground of Appeal: Documentary Evidence

[10] Second, the appellants maintain that the motion judge failed to review and give sufficient weight to the documentary evidence they filed. The appellant alleges in particular that the motion judge failed to give effect to documentary evidence relating to fees charged by and monies paid to the respondent. It was unnecessary for the motion judge to review the entire record before him in his reasons. The failure to advert to some evidence does not mean that it was not considered. Read contextually, the reasons make clear that the motion judge had regard to the whole record and relied on documents that were material to the issues before him. In any event, based on our review of the record, the referenced documents do not contradict the documentary evidence provided by the respondent concerning fees charged, fees reimbursed by the insurer or monies acknowledged by the respondent as having been paid. We would not interfere on that basis.

Summary Judgment Standard

[11] Finally, the appellants claim that the motion judge erred in concluding that there was no genuine issue for trial. We find that the motion judge understood the test for granting summary judgment and correctly reviewed the law on this point. It was open to the motion judge to conclude that a trial was not required to arrive upon a just and fair determination of the matter. The test for granting summary judgment focuses on material facts. The facts now in dispute were not material to the resolution of this matter.

Transcript Issue

[12] The appellants also raised an issue regarding the motion judge's refusal to release a "transcript" of the motion hearing. We have no evidence indicating that the appellants ordered a transcript. Rather, the record indicates Mr. Inspektor requested release of the audio recording of the hearing, a matter entirely within the discretion of the motion judge. In any event, as the motion was heard based on a written record, no transcript of the hearing was required for the purposes of the appeal.

Decision

[13] The appeal is dismissed.

[14] Costs to the respondent in the amount of $3,200, inclusive of disbursements and HST.

Janet Simmons J.A. B.W. Miller J.A. Fairburn J.A.