Court of Appeal for Ontario

Citation: Formosa v. Persaud, 2020 ONCA 368 Date: 2020-06-11 Docket: C67456

Before: Pepall, Hourigan and Roberts JJ.A.

Between:

John Formosa and Steffen Nielsen Plaintiffs (Appellants)

and

Dorian Persaud and Gardiner Roberts LLP Defendants (Respondent)

Counsel: Julian Binavince, for the appellants Michael R. Kestenberg and David S. Lipkus, for the respondent, Gardiner Roberts LLP

Heard: In Writing

On appeal from the judgment of Justice Lorne Sossin of the Superior Court of Justice, dated August 22, 2019, with reasons reported at 2019 ONSC 4860.

REASONS FOR DECISION

[1] The appellants appeal from the judgment of Sossin J., dated August 22, 2019, in which he granted summary judgment dismissing the appellants’ action against their former counsel, Dorian Persaud and Gardiner Roberts LLP. The appellants only appeal the dismissal of their action against Gardiner Roberts LLP (“GR”).

[2] The appellants were former managers of TSI International Group (“TIG”). TIG brought proceedings against the appellants alleging that they had stolen confidential and proprietary information. TIG also brought a motion seeking injunctive relief. Mr. Persaud acted for the appellants.

[3] TIG was successful on the motion and the motion judge, Ricchetti J., described the appellants’ conduct as reprehensible and outrageous, stating that it was difficult to ascertain what, if any, defence could possibly succeed.

[4] The appellants terminated Mr. Persaud’s retainer and hired GR to act for them instead. The retainer with GR lasted roughly 22 months. During that time, GR prepared the appellants’ statement of defence and counterclaim. In addition, GR represented the appellants in their unsuccessful response to TIG’s motion to strike their pleading, in filing a motion for leave to appeal that order, and on an unsuccessful motion seeking compliance with the injunctive relief that had been granted against them.

[5] Ultimately the action with TIG was settled with the assistance of new counsel. The appellants then commenced this action against Mr. Persaud and GR for breach of contract and solicitor’s negligence. Mr. Persaud and GR brought a motion for summary judgment dismissing the appellants’ action.

[6] The motion judge, Sossin J., found that each of the steps GR took was communicated to the appellants, considered by them, and resulted in instructions to take a certain course of action. The motion judge also found that the appellants knew the risks, were advised of their rights, and were active participants in the development of the litigation materials and strategy. Moreover, the motion judge found that GR did not cause the appellants’ damages, to the extent there were any. He concluded that GR was not professionally negligent.

[7] In their factum on appeal, the appellants state that they commenced the action against GR based on errors in judgment, failure to properly advise them so they could make informed decisions, and failure to properly consider costs.

[8] The motion judge addressed these claims and found against the appellants.

[9] On appeal, the appellants advance numerous arguments, none of which are meritorious.

[10] The motion judge applied the correct test for a summary judgment motion and did not reverse the burden. He correctly noted that GR, as the moving party, had the initial burden to establish there was no genuine issue requiring a trial. He was satisfied that this burden had been met based on the record before him, which included affidavits filed by two of GR’s lawyers that addressed the claims against them. In the absence of any expert report from either party, he relied on the record to determine that there was no professional negligence. We see no error in that analysis. See also McPeake v. Cadesky, 2018 ONCA 554.

[11] The appellants complain that GR made errors in judgment. However, as stated by McLachlin C.J. in Hill v. Hamilton-Wentworth Regional Municipal Police, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 73, the law of negligence accepts that professionals may make minor errors or errors in judgment that cause unfortunate results, without breaching the standard of care. Here, the motion judge found that the appellants were advised of the risks in litigation generally and in the TIG action specifically. His findings were fully supported by the record. Moreover, there is no dispute that the litigation strategy was to be aggressive with a view to motivating TIG to settle. We are fully satisfied of the merits of the motion judge’s findings.

[12] There is no basis for the appellants’ argument that the reasons were inadequate. The reasoning and the route to the dismissal of the appellants’ claim are abundantly clear.

[13] In light of our decision on the merits, there is no need to consider the additional basis of absence of any loss, relied upon by the motion judge.

[14] For these reasons, the appeal is dismissed. If the parties are unable to agree on costs of the appeal, they may each make brief written submissions, not to exceed three pages in length.

“S.E. Pepall J.A.”

“C.W. Hourigan J.A.”

“L.B. Roberts J.A.”