COURT FILE NO.: CV-10-48496
DATE: 20120917
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Kelly Connerty, Plaintiff
AND:
Dave Coles et al, Defendants
BEFORE: Hackland R.S.J.
COUNSEL:
Walter T. Langley, for the Plaintiff
Allan R. O’Brien, for the Defendants
ARGUED: August 23, 2012 (Ottawa)
ENDORSEMENT
[ 1 ] The defendant solicitor Susan Ballantyne (“the solicitor”) and her firm seek leave to appeal from the order of Maranger J. dated May 8, 2012 in which he refused to grant the solicitor’s motion for summary judgment dismissing the plaintiff’s professional negligence claim.
[ 2 ] The solicitor provided advice to the plaintiff pertaining to workplace issues (such as reasonable accommodation) arising from the plaintiff’s medical disability. During the period of this representation the plaintiff’s entitlement to claim against her disability insurer became statute barred. The plaintiff alleges that in all the circumstances the solicitor should have advised her as to the limitations issue involving her disability coverage.
[ 3 ] The motion judge reviewed the facts carefully in his reasons and stated the issues as follows:
(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?
[ 4 ] The Motion judge declined to grant summary judgment dismissing the plaintiff’s claim against the solicitor, stating his reasons as follows:
[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.
[ 5 ] It is not contested that the motion judge’s factual determinations are to be accorded substantial deference, including his conclusion that further evidence was required to determine if a duty of care existed on the solicitor’s part to advise as to the limitations issue. Further, the case law has recognized that limited duties can be placed on solicitors outside of the strict solicitor client relationship. See, Moon v. Chetti , 2007 CarswellOnt 23120 and Piccolo v. DiBenedetto et al, (2002), 2002 18053 (ON SC) , 62 O.R. (3d) 66.
[ 6 ] The solicitor seeks leave to appeal on the basis that the plaintiff failed to support her allegation of a breach of duty on the solicitor’s part by tendering expert evidence to support her claim that such a duty was owed to her. In fact neither party filed expert opinion evidence on the motion. The solicitor contends that expert evidence is required to establish the content of the standard of care and absent that necessary component of her claim she has failed to show a genuine issue for trial. It is argued that the plaintiff’s obligation to put her “best foot forward” entailed the obligation to tender supportive expert evidence on the issue of whether the solicitor owed a duty of care to the plaintiff in the circumstances.
[ 7 ] It was stated in Krawchuk v. Scherbak, 2011 ONCA 352 that generally it will not be possible to determine allegations of professional negligence in a given situation without the benefit of expert evidence. The present case is obviously such a case as are most negligence claims against lawyers and physicians. Krawchuk was referring to required evidence at trial. However two cases were cited by the solicitor in which a lack of expert evidence resulted in plaintiffs’ claims being dismissed on summary judgment motions, see Gresham v. Rohaly , 2011 ONSC 7652 and Ferroni v. St. Joseph’s Health Care Centre , 2012 ONSC 1208 . In Ferroni the defendant physicians filed expert evidence in support of their motion for summary judgment.
[ 8 ] In my opinion it is not always the case that the plaintiff must file expert evidence to support a professional negligence claim, when defending a summary judgment motion, particularly when the moving party has filed no such evidence.
[ 9 ] The onus on the parties and the shifting burden of proof in summary judgment motions was clearly articulated by Justice Karakatsanis (as she then was) in New Solutions Extrusion Corp. v. Gauthier , 2010 ONSC 1037 :
The new Rule does not change the burden in a summary judgment motion. Rule 20.01(3) provides that a defendant who seeks summary dismissal must “move with supporting affidavit material or other evidence.” The defendant bears the evidentiary burden of showing that there is no genuine issue requiring a trial. The defendant must prove this and cannot rely on mere allegations or the pleadings. It is only after the moving party has discharged its evidentiary burden of proving that there is no genuine issue which requires a trial for its resolution, that the burden shifts to the responding party to prove that its claim or defence has a real chance of success. Pursuant to Rule 20.02(2), a responding party “may not rest solely on the allegations or denial in the party’s pleadings but must set out in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial.” In other words, consistent with existing jurisprudence, each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried. The court is entitled to assume that the record contains all the evidence which the parties will present if there is a trial.
[ 10 ] In the present case, the motion judge did not comment on the absence of expert evidence. However he correctly recognized that the solicitor, as moving party, bears the evidentiary burden of showing that there is no genuine issue requiring a trial. Before this court the solicitor argues that the absence of expert evidence supporting the plaintiff’s allegations is sufficient to satisfy that burden without expert evidence filed on her behalf. This is in the face of the requirement that “each side must put its best foot forward” with respect to the material issues.
[ 11 ] The question of whether the evidence available to the court on a summary judgment motion allows for a “full appreciation” of the matter is highly fact dependant and varies on a case by case basis. As the Court of Appeal observed in Combined Air, at para. 39:
[39] Although both the summary judgment motion and a full trial are processes by which actions may be adjudicated in the “interest of justice”, the procedural fairness of each of these two processes depends on the nature of the issues posed and the evidence led by the parties. In some cases, it is safe to determine the matter on a motion for summary judgment because the motion record is sufficient to ensure that a just result can be achieved without the need for a full trial. In other cases, the record will not be adequate for this purpose, nor can it be made so regardless of the specific tools that are now available to the motion judge. In such cases, a just result can only be achieved through the trial process. This pivotal determination must be made on a case-by-case basis.
The Court also offered this caution in relation to the “best foot forward” concept, at para. 57:
[57] However, we add an important caveat to the “best foot forward” principle in cases where a motion for summary judgment is brought early in the litigation process. It will not be in the interest of justice to exercise rule 20.04(2.1) powers in cases where the nature and complexity of the issues demand that the normal process of production of documents and oral discovery be completed before a party is required to respond to a summary judgment motion. In such a case, forcing a responding party to build a record through affidavits and cross-examinations will only anticipate and replicate what should happen in a more orderly and efficient way through the usual discovery process.
[ 12 ] In the present case this motion for summary judgment was brought at an early stage and before the co-defendants, the plaintiff’s bargaining agents, had filed their statement of defence. I am advised they are now claiming over against the solicitor. In addition the trial judge was of the opinion that he required more evidence of the meetings between the plaintiff and the solicitor to address the issue of whether a duty existed. Presumably an expert opinion, to be of any value to the court, would also require a detailed consideration of what occurred at these meetings.
[ 13 ] I am of the opinion that the motion judge came to the reasonable conclusion on the evidence before him, that he lacked a “full appreciation of the evidence” on the summary judgment motion, particularly on the basis of limited evidence and no expert evidence from either side. I do not doubt the correctness of his conclusion. Moreover, I think that any conflicting decisions in this jurisdiction dealing with the need for expert opinions in summary judgment motions are a product of the particular factual circumstances at hand. Sometimes the lack of a supportive expert opinion, particularly in the face of a contrary opinion furnished by the moving party will result in a dismissal of the claim, but this will not always be the result.
[ 14 ] I find that the leave to appeal criteria in Rule 62.02(4) have not been met. Accordingly I dismiss the motion for leave to appeal.
[ 15 ] The plaintiff is awarded her costs of this motion fixed in the sum of $6,000 inclusive of disbursements and H.S.T, payable forthwith.
Mr. Justice Charles T. Hackland
Released: September 17, 2012
COURT FILE NO.: CV-10-48496
DATE: 20120917
BETWEEN: Kelly Connerty and Dave Coles et al ENDORSEMENT
HACKLAND R.S.J.
Released: September 17, 2012