COURT FILE NO.: 349/08

DATE: 20090123

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: JOSEPH NICOLARDI Appellant/Plaintiff

• and -

BRUCE J. DALEY, NOEL DALEY, KENNETH R. BYERS and WILLIAM C. FANJOY Respondents/Defendants

BEFORE: JENNINGS, BELLAMY & LITTLE JJ.

COUNSEL: David A. Zuber, for the Appellant/Plaintiff Thomas C. Wright, Q.C. & R.S. Stranger, for the Respondents/Defendants

HEARD AT TORONTO: January 19, 2009

ENDORSEMENT

LITTLE J.:

[1] This is an appeal from the judgment of Cameron J., dated September 27, 2005, dismissing the appellant, Joseph Nicolardi’s, claim against William C. Fanjoy, a lawyer, for solicitor’s negligence, and ordering Mr. Fanjoy to repay to Mr. Nicolardi fees, together with interest and GST, in the sum of $12,145.

[2] Mr. Nicolardi sustained injuries in a motor vehicle accident on October 2, 1989. After commencing an action with other counsel, he retained Mr. Fanjoy’s services on or about May 3, 1993, to continue carriage of the action on his behalf.

[3] Mr. Fanjoy continued to act for the appellant until January 25, 1996 when, on Mr. Fanjoy’s own motion, he was removed as counsel of record by Master’s Order of that date.

[4] More than one year later, Mr. Nicolardi, after having retained competent counsel in the interim and subsequently discharging that counsel, elected to proceed to trial without a lawyer. After a five-day jury trial, Mr. Nicolardi was awarded general damages of $43,000, damages for loss of past income of $27,500, and out-of-pocket expenses of $3,000, but nothing for future loss of income or future care.

[5] Mr. Nicolardi was also awarded costs in that action.

[6] Mr. Nicolardi then sued Mr. Fanjoy, alleging negligence in failing to properly develop a future loss of income claim and, thus, not being prepared to proceed to trial between October 31, 1994, being the first assigned trial date, and January 25, 1996 when Mr. Fanjoy ceased acting as counsel.

[7] In Mr. Nicolardi’s action against Mr. Fanjoy, he also sought return of all fees paid to Mr. Fanjoy, alleging that Mr. Fanjoy’s actions which included obtaining experts’ reports, attending examinations-for-discovery, attending pre-trials and a mediation, passing the record and setting the matter down for trial were of no value whatsoever. He further sought reimbursement for legal fees he incurred after January 25, 1996 in retaining further counsel before proceeding to trial on his own.

[8] Mr. Nicolardi’s action for negligence against Mr. Fanjoy was dismissed. Mr. Nicolardi was awarded, however, as the result of a fee arrangement entered into between him and Mr. Fanjoy initially, a return of a portion of fees already paid.

[9] The standard of review in this appeal is as stated by the Supreme Court of Canada in Housen v. Nikolaisen (2002), 2002 SCC 33, 211 D.L.R. (4th) 577 (S.C.C.). This appeal is based upon fact-findings made by the trial judge and, as such, this Court must be satisfied on a balance of probabilities that a palpable and overriding error exists in order for the appellant to succeed.

[10] The trial judge clearly articulated his reasons for preferring Mr. Fanjoy’s evidence to that of the appellant. It is clear that he was provided with adequate grounds upon which to make such determination, noting as he did that the appellant, Mr. Nicolardi, was disposed to be “cynical of people’s motives to a point of paranoia”.

[11] Ample grounds existed to dismiss the appellant’s negligence claim at trial. The alleged negligence was not established, and in any event, no causal connection linked Mr. Fanjoy’s alleged negligence to any loss sustained by the appellant.

[12] The appellant retained and discharged competent counsel following Mr. Fanjoy’s removal. This, coupled with the appellant’s decision to proceed to trial as a self-represented plaintiff (an act performed contrary even to the advice of Mr. Fanjoy), prevented Mr. Nicolardi from establishing any chain of causation.

[13] The trial judge correctly set forth the criteria involved in determining solicitor’s negligence in para. 134 of his judgment. He was alert to the relevant issues, including damage or loss resulting from the plaintiff’s own unreasonable actions. This was found to be the case, as more than one year had elapsed between the time of Mr. Fanjoy’s removal as counsel and the time of the actual trial. During this period new counsel had been retained to act on behalf of Mr. Nicolardi and additional expert evidence had been obtained relating to the future loss claim.

[14] At the time Mr. Fanjoy was retained, he struck an agreement with Mr. Nicolardi that legal fees would approximate 25%-30% of the eventual award at trial. Mr. Fanjoy had received more than $24,000 in fees prior to his removal as counsel. In directing a return to Mr. Nicolardi of $8,500, together with $595 GST, Cameron J. was justified in relying upon both the fee structure as agreed upon and the actual trial award.

[15] The trial judge, exercising his discretion, awarded costs based on 75% of substantial indemnity costs incurred by the defendants, taking into consideration not only the offer to settle, but also the fact that Mr. Nicolardi elected to amend his pleadings to include numerous intentional breaches of professional obligations which the trial judge correctly interpreted as allegations of moral turpitude. These allegations were groundless and represented a justifiable factor for consideration by the trial judge in fixing costs. We see no reason to interfere with his discretion.

[16] This appeal is dismissed with costs to the defendants fixed at $8,000, plus disbursements and GST.

JENNINGS J.

BELLAMY J.

LITTLE J.

DATE: 20090123