ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-48496
DATE: 2012/05/08
BETWEEN:
KELLY CONNERTY
Plaintiff
– and –
DAVE COLES on his own behalf and on behalf of all other members of COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA/SYNDICAT CANADIEN DES COMMUNICATIONS, DE L’ENERGIE ET DU PAPIER and JIM FLING on his own behalf and on behalf of all other members of LOCAL 34 OF COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA/SYNDICAT CANADIEN DES COMMUNICATIONS, DE L’ENERGIE ET DU PAPIER and SUSAN BALLANTYNE and RAVEN, CAMERON, BALLANTYNE & YAZBECK, and JEFF SMITH
Defendants
Walter T. Langley, for the Plaintiff
Phillip G. Hunt, for the Defendants, Dave Coles on his own behalf and on behalf of all other members of Communications, Energy and Paperworkers Union of Canada/Syndicat canadien des communications de l’énergie et du papier and Jeff Smith Allan R. O’Brien, for the Defendants, Susan Ballantyne and Raven, Cameron, Ballantyne & Yazbeck Paul Champ, for the Defendants, Jim Fling on his own behalf and on behalf of all other members of Local 34 of Communications, Energy and Paperworkers Union of Canada/Syndicat canadien des communications de l’énergie et du papier
HEARD: April 4, 2012
REASONS FOR DECISION
mARANGER j
Introduction
[ 1 ] This was a motion for summary judgment brought by the defendants Susan Ballantyne and the law firm Raven, Cameron, Ballentyne & Yazbeck pursuant to Rule 20 of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194.
[ 2 ] The plaintiff, Kelly Connerty, is disabled from her employment as an installer technician with Entourage Technology Solutions, a subsidiary of Bell Canada. The evidence discloses that this disability was diagnosed as a permanent one in the month of June, 2006. The disability insurer denied the plaintiff's claim for LTD benefits.
[ 3 ] The ability to successfully sue or appeal the decision of the disability insurer was prescribed by virtue of a two-year limitation period that expired at the end of June, 2008.
[ 4 ] The defendant Susan Ballantyne is a lawyer and the defendant Raven, Cameron, Ballantyne & Yazbeck is her law firm. They advance this motion on the basis that there is no genuine need for a trial, proposing that the evidence discloses that neither of the defendants owed a duty of any kind to the plaintiff to advance her claim for disability benefits prior to the expiration of the limitation period.
Factual Background
[ 5 ] The factual background to this case can be summarized as follows:
• The plaintiff is 48 years old and resides with her husband and children in Morrisburg, Ontario. She was employed as an installer technician with Entourage Technologies Solutions, a subsidiary of Bell Canada. The plaintiff was a member of the Communications, Energy and Paper workers’ Union of Canada, hereinafter referred to as CEP, (local 34).
• Dave Coles was at all material times the president of CEP Canada. Jim Fling was the local representative of local 34 of CEP. Jeff Smith was at all times a national representative for local 34 of CEP (he is now retired).
• The collective agreement provided amongst other benefits a long-term disability income plan. Originally funded through Provident Life Insurance Company, then taken over by RBC Life Insurance Company.
• In May, 2003, the plaintiff developed a severe illness as a result of eating a hamburger at a fast food restaurant. She received short-term disability benefits from May, 2003 to November, 2003. The disability continued, and she applied for and received long-term disability benefits commencing November 2, 2003.
• The plaintiff in the fall of 2003 approached CEP about her disability issues, specifically concerning short-term disability benefits.
• In April, 2005, the plaintiff sent a letter to Smith outlining the difficulties she was having with RBC in determining her eligibility for LTD benefits.
• RBC continued this long-term disability coverage until February, 2006, when they advised the plaintiff that she was no longer disabled and was being provided with transitional benefits until June 1, 2006.
• The plaintiff contacted Smith soon after receiving the letter and was advised to appeal the decision of RBC, which she did.
• RBC notified the plaintiff by letter dated June 20, 2006, and June 27, 2006, that the decision to terminate benefits was confirmed. Following these letters, the plaintiff contacted both Smith and Fling on a regular basis and was advised by them that CEP would be appealing on her behalf RBC's decision, it would be filing a grievance and commencing legal action, including engaging the services of a lawyer as a means of assisting her.
• Susan Ballantyne and her firm has acted for CEP local 34 since the 1990s. They were primarily her client.
• She did not have a general retainer agreement but was contacted on an "as needed basis".
• On August 1, 2006, November 16, 2006, October 24, 2007, and July 16, 2008, Susan Ballantyne met the plaintiff, Fling, the local union representative, was also present at two of the meetings. The discussion at these meetings concerned the plaintiff returning to work and what the employer's duty was to accommodate her disability.
• The evidence supports the proposition that the lawyer was not specifically retained to initiate a lawsuit against RBC for long-term disability benefits. She was retained by the union to assist in providing advice concerning the filing of grievances in regards to work accommodation for the plaintiff.
• Medical evidence was sought by Ballantyne in the context of obtaining an opinion about the plaintiff getting back to work. In particular, the "groomer" position with the employer was being contemplated. Correspondence sent on November 7, 2007, to the plaintiff's physician corroborates this issue.
• On October 31, 2008, CEP local 34, officially retained Susan Ballantyne to assist the plaintiff with her claim for long-term disability benefits. Susan Ballantyne received medical reports between September and November, 2008 demonstrating that the plaintiff was totally disabled.
[ 6 ] The plaintiff takes the position that the following also took place in this case:
• Susan Ballantyne gave her a list of legal aid clinic locations at their original meeting on August 1, 2006.
• A letter was shown to Ballantyne at the October 24, 2007, meeting which referenced the fact that the plaintiff's long-term benefits have been cut off since June, 2006.
• The plaintiff and Susan Ballantyne met on November 7, 2007.
Legal issue to be decided
[ 7 ] The fundamental issue to be decided on this motion is whether there is a genuine issue requiring a trial. To address that overarching question requires the determination of the following:
(a) What is the duty owed by the lawyer to the client or prospective client in the circumstances of this case?
(b) Does the court "have a full appreciation" of the evidence so as to determine that issue without the necessity of a trial?
[ 8 ] The position of the moving party is that the duty owed to a client is determined by the nature and scope of the retainer. In this case, the lawyer was never retained to initiate an action for LTD benefits until after the expiration of the limitation period; consequently, no duty was owed, no duty was breached, and the record of the evidence put forward at this motion allows the court to dismiss the claim on the basis of a summary judgment.
[ 9 ] The position of the plaintiff is that even without a formal solicitor/client relationship, a solicitor can nonetheless place themselves in a relationship of proximity where a duty of care is owed to a person regardless of whether they are a formal client. And, furthermore, whether such a duty existed in the circumstances of this case can only be determined through the vehicle of a trial.
Analysis
[ 10 ] In Combined Air Mechanical Services Inc. v. Flesh et all, 2011 ONCA 764 , the Ontario Court of Appeal provided guidance on the determination of summary judgment motions, in the wake of recent amendments made to the Rules of Civil Procedure in this province. In that case, the court indicated the following at paras. 50, 53, 54 and 55:
... In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of a trial?
We wish to emphasize the very important distinction between "full appreciation", in the sense we intend here, and achieving familiarity with the total body of evidence in the motion record. Simply being knowledgeable about the entire content of the motion record is not the same as fully appreciating the evidence and issues in a way that permits a fair and just adjudication of the dispute. The full appreciation test requires motion judges to do more than simply assess if they are capable of reading and interpreting all of the evidence that has been put before them.
The point we are making is that a motion judge is required to assess whether the attributes of the trial process are necessary to enable him or her to fully appreciate the evidence and the issues posed by the case. In making this determination, the motion judge is to consider, for example, whether he or she can accurately weigh and draw inferences from the evidence without the benefit of the trial narrative, without the ability here the witnesses speak in their own words and without the assistance of counsel as the judge examines the record in chambers
Thus, in deciding whether to use the powers in rule 20.04 (2.1), the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand.…
[ 11 ] The moving party relies upon the decision of Broesky v. Lüst, 2011 ONSC 167 , 330 D.L.R. (4th) 259, for the proposition that once the scope and nature of a retainer is determined the duty a lawyer owes a client is readily ascertainable. The decision in question was a judgment rendered following a five-day trial. It required numerous findings of fact in order to deal with the issue of the nature and scope of a solicitor/client retainer.
[ 12 ] In that case, the lawyer was hired to pursue certain disability benefit claims for a disability that arose as a result of a motor vehicle accident. A finding was made that the lawyer was only hired for the specific purpose of pursuing the disability benefit claims and the duty did not extend beyond that on the facts of the case. A key feature in that case was that the lawyer and client actually discussed the issue of the scope and nature of the retainer. The plaintiff/client instructed the lawyer that she did not wish to issue a lawsuit in the motor vehicle accident because her brother-in-law was the driver: See Broesky v. Lüst , supra, at para. 13 .
[ 13 ] In Moon v. Chetti , 2007 12710 (Ont. S.C.) , Brown J., in dealing with a summary judgment motion concerning solicitors’ negligence, stated the following, at para. 14, with respect to the duty that a lawyer may owe even on non-client:
The defendant relies on the general rule that a lawyer owes no duty of care to the clients of the opposing counsel in litigation or commercial matters … However, a solicitor may owe a fiduciary duty to a non-client, who is not represented by counsel, when the non-client reasonably relied upon the solicitor and the solicitor knew or ought to have known of this reliance: … A special relationship may thus be found to exist between the defendant solicitor and the unrepresented plaintiff if such reliance is established. The extent of the defendant's duty to an unrepresented non-client is an issue properly determined by the trial judge.
[ 14 ] In Piccolo v. DiBenedetto et all. (2002), 2002 18053 (ON SC) , 62 O.R. (3d) 66 (S.C.) Cusinato J. also dealt with the issue of the duty a solicitor might owe in a non solicitor-client relationship, in that case he adopted the following:
In His Lordship's ultimate comments in analyzing a duty of care to a person who is a non-client, he extracted the following principles from Tracy v. Atkins , supra, at pp. 227-30 B.C.L.R.:
Over the past ten years, the courts of this province have greatly expanded the exposure of a solicitor to damage claims. Even where no solicitor-client relationship exists, a solicitor can place himself in a sufficient relationship of proximity that he owes a duty of care to a person who is not a client. Where a solicitor is aware that such a person does not have independent legal advice and ought to know that he is being relied upon by that person to protect their interests, such a duty of care is likely to arise.
[ 15 ] In this matter, the evidence supports the proposition that Susan Ballantyne was hired by CEP local 34 to assist in the representation of the plaintiff in regards to her long-term disability and what accommodations should be made by her employer as a result of the disability. While there is evidence to support the proposition that she was never specifically retained to sue for LTD benefits, I cannot say with certainty on the evidence contained in the record of the case that her duty could not have extended beyond the role of lawyer to the union. It seems to me that, depending on the solicitor's knowledge, she could possibly have owed a duty to the plaintiff to advise that she only had two years to sue a long-term disability insurer or, for that matter, to advise her that she should engage counsel to thoroughly examine the issue.
[ 16 ] After considering the material provided in support of this motion, I cannot say that I have a "full appreciation of the evidence" so as to be capable of disposing of this matter by conclusively deciding that no duty whatsoever was owed to the plaintiff by the defendants regarding a lawsuit for long-term disability benefits. The number of meetings and the nature of the exchanges that took place between Susan Ballantyne and the plaintiff would have to be ascertained prior to determining what if any duty was owed. These findings of fact necessitate a trial.
[ 17 ] Therefore the motion for summary judgment is dismissed.
[ 18 ] Counsel may provide two pages of written argument on the issue of costs. Counsel representing the plaintiff shall deliver their argument within 15 days of the release of this decision. Counsel for the defendant will have 10 days thereafter to provide their submissions.
Maranger J.
Released: May 8, 2012
COURT FILE NO.: CV-10-48496
DATE: 2012/05/08
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: KELLY CONNERTY Plaintiff DAVE COLES on his own behalf and on behalf of all other members of COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA/SYNDICAT CANADIEN DES COMMUNICATIONS, DE L’ENERGIE ET DU PAPIER and JIM FLING on his own behalf and on behalf of all other members of LOCAL 34 OF COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA/SYNDICAT CANADIEN DES COMMUNICATIONS, DE L’ENERGIE ET DU PAPIER and SUSAN BALLANTYNE and RAVEN, CAMERON, BALLANTYNE & YAZBECK, and JEFF SMITH Defendants REASONS FOR DECISION Maranger J.
Released: May 8, 2012