Court File and Parties

Court of Appeal for Ontario

Date: 2024-04-10 Docket: COA-23-CV-0140

Before: Pepall, George and Dawe JJ.A.

Between:

Melissa Bell Plaintiff (Appellant)

and

Neda Amini Defendant (Respondent)

Counsel: Melissa Bell, acting in person Susan M. Sack and Deanna R. Miller, for the respondent

Heard: March 1, 2024

On appeal from the judgment of Justice Andra Pollak of the Superior Court of Justice, dated January 3, 2023.

Reasons for Decision

[1] The respondent, a lawyer, agreed to represent the appellant on a Motion to Change in a family law matter. The respondent agreed to represent the appellant on a Legal Aid certificate. According to the respondent, the appellant did not follow the respondent’s recommended litigation strategy and instead adopted her own approach, which the respondent described as “unreasonable [and] unnecessarily hostile”.

[2] Furthermore, while there is a dispute about the timing of the allegation, the motion judge found that the appellant had accused the respondent of colluding with opposing counsel.

[3] Given the breakdown in the solicitor-client relationship, the respondent withdrew as counsel. Because she had never appeared in court on behalf of the appellant, the respondent did not, and was not required to, bring a motion to be removed as counsel of record. The solicitor-client relationship lasted only 13 days.

[4] On February 13, 2019, the appellant filed a complaint against the respondent with Legal Aid Ontario (“LAO”), and applied for a change of solicitor. The respondent responded to the complaint. LAO, after concluding that the appellant had conducted herself in an unreasonable manner, declined to approve further coverage. The appellant represented herself on the Motion to Change, which was ultimately unsuccessful. In his reasons on the Motion to Change, the motion judge concluded that:

The [appellant] has conducted this litigation, and her related appeals, in a particular manner. She is entitled to take an aggressive approach. But she is not entitled to waste court time, cause the other side to incur unnecessary costs and engage in abusive behaviour towards [opposing] counsel in the process.

[5] On February 1, 2021, the appellant commenced an action against the respondent claiming that the respondent was negligent, had committed malpractice by withdrawing her services, and had defamed her in her communications with LAO.

[6] The respondent brought a summary judgment motion. The motion judge granted summary judgment dismissing the appellant’s action, finding that: (1) there was a breakdown in the solicitor-client relationship, (2) the respondent was entitled to withdraw her services, (3) the appellant had refused to accept a reasonable litigation strategy, (4) the appellant had failed to disclose important facts and documents, (5) the LAO decision to deny further Legal Aid funding was an exercise of its statutory discretion, (6) the respondent’s withdrawal prior to the Motion to Change did not prejudice the appellant’s position in those proceedings, and (7) the respondent provided an accurate and truthful account of what had happened and her communications with LAO were not motivated by malice or bad faith and were not defamatory. The motion judge awarded costs to the respondent on a partial indemnity basis.

[7] The appellant appeals from the summary dismissal of her action against the respondent and the costs award.

[8] The appellant’s negligence claim rests on her allegation that the respondent’s withdrawal irreparably damaged her position on the Motion to Change. In support, the appellant has simply, and baldly, alleged that there was no breakdown in the solicitor-client relationship and therefore no basis for the respondent to withdraw.

[9] There are three problems with this submission. First, while there is a dispute about the timing of the allegation, the motion judge found, and the appellant has conceded, that she did accuse the respondent of colluding with opposing counsel, to her detriment. Second, the motion judge, the judge who heard the Motion to Change, and LAO, each concluded that the appellant had acted unreasonably in the proceedings. Indeed, this court found, when considering a motion related to the family law matter, that the appellant had “repeatedly litigated issues that have already been decided, engaged in abusive behaviour, and deliberately failed to comply with clear court orders”: Bell v. Fishka, 2022 ONCA 683, at para. 4. And third, when the respondent ended the solicitor-client relationship the Motion to Change had not yet been scheduled, which afforded the appellant sufficient time to prepare.

[10] There is no evidence in the record that could support a conclusion that the respondent’s conduct amounted to negligence. The motion judge correctly concluded that there was no viable negligence claim.

[11] With respect to the appellant’s defamation claim, the appellant had been advised, even before the retainer was terminated, that the respondent would have to provide LAO with updates. In any event, the respondent had no choice but to respond to the February 13, 2019 complaint.

[12] Moreover, truth is a complete defence to a defamation claim: Grant v. Torstar, 2009 SCC 61, [2009] 3 S.C.R. 640, at paras. 32-33; Haskett v. Equifax Canada Inc. (2003), 63 O.R. (3d) 577 (C.A.), at para. 54. The motion judge concluded that the respondent’s statements to LAO were truthful and accurate.

[13] The motion judge referred to and applied the correct test for summary judgment as set out in Hyrniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87.

[14] After the motion judge considered the powers available to her under r. 20.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, she concluded that she could “make a just decision on the evidentiary record” before her. This evidence, per the motion judge, was sufficient to demonstrate that comments made by the appellant led to a breakdown of the solicitor-client relationship. As explained by Karakatsanis J. in Hyrniak, at paras. 81-84, the exercise of powers available to motion judges on summary judgment applications attracts deference on appeal. The findings made by the trial judge were available to her on the record. We see no basis on which to interfere with the motion judge’s decision.

[15] For these reasons, the appeal is dismissed.

[16] We award costs to the respondent in the all-inclusive amount of $7,500. This includes the costs of the appeal and the motion.

“S.E. Pepall J.A.”

“J. George J.A.”

“J. Dawe J.A.”