Superior Court of Justice - Ontario

COURT FILE NO.: CV-11-433152

DATE: 20121005

RE: RHYS FOCKLER, LYN CARTWRIGHT and WHOLE WORLD TRADE LTD., Plaintiffs

AND

SHAEL EISEN, EISEN GRAHAM BARRISTERS AND SOLCITORS, ALANNA KAYE and A.S. KAYE CONSULTANTS, Defendants

BEFORE: PATTILLO J.

COUNSEL: Rhys Fockler, on behalf of himself and the Defendant Lyn Cartwright Archie J. Rabinowitz and Rebecca S. Studin, for the Defendants, Shael Eisen and Eisen Graham Barristers and Solicitors Gaetana Campisi, for the Defendants, Alanna Kaye and A.S. Kaye Consultants

HEARD: September 25, 2012

ENDORSEMENT

Introduction

[1] This is a motion by the defendants Shael Eisen (“Eisen”) and Eisen Graham Barristers (“EGB”) for an order pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure striking out the statement of claim in the action on the ground that it discloses no reasonable cause of action against them. In the alternative, Eisen and EGB seek an order pursuant to rule 25.11(b) striking out the statement of claim, without leave to amend, on the ground that the pleading is scandalous, frivolous and vexatious.

[2] In the further alternative, Eisen and EGB seek an order striking the claim of the corporate plaintiff Whole World Trade Ltd. (“WWT”) for failing to be represented by a lawyer or obtaining leave of the court to have someone represent it.

[3] In a separate motion heard at the same time, the remaining defendants, Alanna Kaye and A.S. Kaye Consultants (collectively “Kaye”) seek identical relief pursuant to rules 21.01(1)(b) and 25.11(b) as that claimed by Eisen and EGB.

Adjournment Request

[4] At the outset of the argument, Mr. Fockler requested that the defendants’ motions be adjourned to October 15, 2012, a date previously set aside for various motions by Justice Whitaker in his case management order of June 11, 2012. Justice Whitaker is case managing a number of estate actions involving the Fockler family. Mr. Fockler requested time to enable the plaintiffs to file material which he indicated was a consolidated statement of claim, a motion record and a factum.

[5] At the conclusion of the adjournment submissions, I indicated, given the history of this matter, that I was not prepared to grant the plaintiffs’ request.

[6] To supplement my brief oral reasons given at that time, the action was commenced by notice of action in August 2011. The statement of claim in issue is dated September 16, 2011. These motions were originally scheduled to be heard on June 25, 2012. Prior to the return date, Mr. Fockler was injured in a bicycle accident. The defendants were not prepared to agree to an adjournment of their motions but in the end result, due to court scheduling issues, the matters were not heard on June 25th.

[7] On June 26th, the parties appeared before Madame Justice Low in Motions Scheduling Court to obtain a new date. Justice Low set September 25, 2012 for the motions. She ordered, among other things, that the plaintiffs file their factum and authorities by September 14, 2012. Despite more than two months, the plaintiffs have not filed any material as directed. In my view, the plaintiffs have had more than enough time to file material. Mr. Fockler says the plaintiffs have been swamped with legal and business issues and have been too busy to comply with Justice Low’s order. I do not accept that. They have had more than sufficient time. To permit the plaintiffs more time in the absence of a credible reason for the delay to date is not appropriate in my view. This action needs to proceed.

Rule 21.01(1)(b)

[8] Rule 21.01(1)(b) provides that a party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. Rule 21.01(2)(b) provides no evidence is admissible on a motion under rule 21.01(1)(b).

[9] On a rule 21.01(1)(b) motion, the court must assume that all of the facts contained in the statement of claim are true. On that basis, the test is whether it is “plain and obvious” that the pleading discloses no reasonable cause of action. The phrase “no reasonable cause of action” has been expressed in the cases in a number of different ways: no reasonable prospect of success; devoid of any legal merit; certain to fail. Regardless of how it is expressed, the test is a strict one and considers only the legal sufficiency of the claim: Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959 at p. 980; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263 at para. 15; and R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R 45 at paras. 17 – 22. See too: Brookfield Financial Real Estate Group Ltd. v. Azorim Canada (Adelaide Street) Inc. 2012 ONSC 3818 at paras. 27 – 30.

The Statement of Claim

[10] Reduced to essentials, the plaintiffs’ claim in the statement of claim can be summarized as follows.

[11] Mr. Fockler (“Rhys”) is the son of Dorothy Fockler who is 92 years of age. Dorothy has total trust in Rhys and relies on him to assist her in most of her affairs, including legal. The plaintiff Lyn Cartwright is Rhys’ wife. There is no mention in the claim of WWT.

[12] Eisen is a barrister and solicitor practicing at EGB in the area of estates. Kaye is a designated capacity assessor under the Substitute Decisions Act, 1992 S.O. 1992, c. 30, as amended. (“SDA”)

[13] The plaintiffs’ claim against the defendants is for damages for professional negligence.

[14] In 2006, Dorothy’s granddaughter, Deann Parker (“Deann”) transferred Dorothy’s property at 1299 Don Mills Road in Toronto (the “Property”) into a joint tenancy with Dorothy so that the Property would not fall into Dorothy’s estate upon her death, but would pass to the joint tenant with a right of survivorship.

[15] Dorothy and her then lawyer tried, without success, to persuade Deann to return title to the Property to Dorothy.

[16] On May 1, 2009, Dorothy brought an application to obtain the return of title to the Property (the “Property Application”).

[17] On May 9, 2009, Deann brought a Guardianship Application under the SDA, seeking, among other things, directions regarding Dorothy’s capacity. The Guardianship Application contained numerous “false” accusations about Rhys including elder abuse, financial mismanagement and undue influence.

[18] Dorothy, with the assistance of Rhys, retained Eisen to represent her in the Guardianship Application.

[19] Eisen recommended to Dorothy that she submit to a capacity assessment and recommended Kaye to carry out the assessment. Dorothy and Rhys were resistant and preferred to do nothing. Eisen assured them Dorothy would pass. With the concurrence of Rhys, Dorothy instructed Eisen to proceed with the assessment.

[20] On June 18, 2009, Mr. Justice Gans made an order on consent requiring that Dorothy undergo a capacity assessment under s. 79 of the SDA and ordered Kaye to perform the assessment.

[21] In August 2009, Kaye concluded her assessment and determined that Dorothy was incapable with respect to taking care of her finances, safety and health care.

[22] The Guardianship Application was abandoned in July 2011 having generated legal fees and disbursements in excess of a half a million dollars.

[23] The plaintiffs plead they have suffered damages in the form of delay caused to other litigation (amount to be determined); business losses of $135,000 and personal holiday and dental losses of $50,000 to the date of the statement of claim.

[24] Under the heading “Duty of Care”, paragraph 13 of the statement of claim states:

13. The plaintiffs plead that given all the circumstances, as herein plead or to be disclosed in the course of the proceeding, the herein defendants knew or ought to have known of the impending damage and the foreseeable harm to the plaintiffs (in addition to Dorothy) from any degree of relying on the Parkers’ application record affidavits or exhibits and any assumption of good faith whatsoever on the Parkers’ parts, and as such are liable to them for the damages set out, and are part of their causes. Put another way, people lie for various reasons and the herein defendants should have, professionally, been alive to that fact and taken suitable precautions.

[25] The statement of claim alleges Eisen was negligent (i) in “recommending” that Dorothy submit to a capacity assessment under section 79 of the SDA and seeking such an order from the court; and (ii) for allowing the assessment to take place in the context of the “false allegations” about Mr. Fockler’s conduct in the Guardianship Application.

[26] The statement of claim alleges that Kaye was negligent in various ways in conducting the capacity assessment of Dorothy. She operated throughout on a “false platform” based on the mistaken belief that Eisen believed Dorothy was incapable and the judge making the assessment order was satisfied there were reasonable grounds for believing Dorothy was incapable. Further, she relied on bald allegations and false facts asserted by the applicants in the Guardianship Application and contained in stolen documents in reaching her determination of capacity.

Position of the Parties

[27] The defendants submit that the plaintiffs’ claim against them is legally deficient because they have failed to plead the necessary elements of the cause of action of negligence. Specifically they submit the plaintiffs have failed to plead that the defendants owed a duty of care to them, that they breached their duty of care or that they suffered any damage arising from the breach of duty.

[28] Mr. Fockler concedes that the statement of claim does not properly plead the elements of a claim in negligence against the defendants. He submits that he is not knowledgeable in legal matters and it is for this reason that he wishes to amend the claim. He has not had time to do that prior to the return of the defendants’ motions.

Eisen and EGB

[29] I agree with Eisen’s submission that the plaintiffs have failed to plead facts sufficient to establish a claim in negligence and in particular that Eisen owed a duty to any of them. There is no mention whatsoever of any relationship between Eisen and either of Lyn Cartwright or WWT. Further, and while paragraphs 19 to 21 of the claim state that Dorothy relied upon Mr. Fockler’s opinions in legal matters and that Mr. Fockler relied upon Eisen’s alleged assurance that Dorothy would “definitely pass” in advising Dorothy to submit to the capacity assessment, that pleading by itself is not sufficient to establish that Eisen owed a duty to Mr. Fockler.

[30] The general rule is that a solicitor owes no duty of care other than to his or her client except in exceptional circumstances: Baypark Investments Inc. v. Royal Bank of Canada (2002), 2002 49402 (ON SC), 57 O.R. (3d) 528 (S.C.J.), aff’d 2002 CarswellOnt 4023 (C.A.). The duty of care may extend to a non-client in circumstances where the non-client relies on the solicitor, the reliance is reasonable and the solicitor is aware that the non-client is relying on him or her. See: Budrewicz v. Stojanowski (1998), 1998 14688 (ON SC), 41 O.R. (3d) 78 (S.C.J.) at paras. 75, 79 and 80;

[31] In my view, it is plain and obvious from a review of the statement of claim that Lyn Cartwright and WWT have failed to plead any cause of action, whether in negligence or otherwise, against Eisen. Apart from being included as a plaintiff, WWT is never mentioned in the statement of claim. Lyn Cartwright is only introduced as Mr. Fockler’s wife.

[32] I hold a different view, however, with respect to the claim asserted by Mr. Fockler. Despite that fact that the plaintiffs have failed to properly plead all of the required elements of negligence, I am unable to conclude, based on the above law and the facts as pleaded that it is plain and obvious Mr. Fockler does not have a claim in negligence against Eisen. It is possible in law for such a claim to exist but it must be properly pleaded.

Kaye

[33] Kaye submits that the plaintiffs have failed to plead how Kaye owed a duty of care to them. Further, it is submitted Kaye owed no duty of care in law to the plaintiffs on the facts as pleaded in the statement of claim. I agree with both of these submissions.

[34] The statement of claim contains no indication of any relationship between the plaintiffs and Kaye.

[35] Further, the authorities are clear that doctors or medical assessors who are retained by third parties or a statutory authority to examine or assess an individual, owe no duty of care to the person being examined or assessed beyond ensuring that the individual is not harmed during the course of the examination or assessment: X(Minors) v. Bedfordshire County Council, [1952] 2 A.C. 633 (H.L.) at pp. 752-54; Elliot v. Insurance Crime Prevention Bureau, 2005 NSCA 115, 256 D.L.R. (4th) 674, (N.S.C.A.) at paras. 95 – 97.

[36] Kaye was appointed by the court to carry out her assessment of Dorothy. While Kaye owed a limited duty to Dorothy to ensure she was not harmed by the assessment, she owed no duty of care in law to the plaintiffs who had no involvement in the assessment. Accordingly, the statement of claim fails to assert a valid cause of action in negligence against Kaye.

Rule 25.11

[37] Rule 25.11(b) provides that the court may strike out or expunge all or part of a pleading, with or without leave to amend, on the ground that the pleading is scandalous, frivolous or vexatious. A pleading that contains a complete absence of material facts is considered frivolous and vexatious. Bare allegations, particularly of intentional or malicious conduct are scandalous: Aristocrat Restaurants Ltd. (c.o.b. Tony’s East) v. Ontario, 2003 CarswellOnt 5574 (S.C.J.) at para.21.

[38] In my view, significant portions of the statement of claim violate rule 25.11(b). The statement of claim contains a plethora of information, most of which is not material and irrelevant to the claim. It also contains unnecessary and inappropriate comment and personal opinion. Many of the paragraphs are scandalous, frivolous and vexatious. In particular:

a) Paragraphs 5, 7 to 12, 17 18 and 36 to 39 of the claim are rife with argument, malicious allegations and irrelevant commentary on the parties in other proceedings, and Mr. Fockler’s expression of personal opinion about the SDA and the administration of justice in general.

b) Paragraphs 14 to 16 of the claim contain irrelevant inflammatory statements allegedly made by Eisen and other members of the estate bar attacking the integrity of another lawyer and a judge. In my view, the statements are clearly inserted for colour and to embarrass Eisen, the court and others.

c) Paragraphs 22 to 25 contain bald allegations of errors allegedly committed by Eisen and a judge.

[39] Given that the statement of claim contains significant portions which are scandalous, frivolous and vexatious which do not lend themselves to selective excision, in my view the proper result is to strike the entire statement of claim pursuant to rule 25.11(b).

Rule 15.01

[40] Eisen further submits that WWT’s claim should also be struck for failing to comply with rule 15.01(2) which requires that a corporation shall be represented by a lawyer, except with leave of the court.

[41] At Motion Scheduling Court on June 26, 2012, Justice Low ordered that WWT move to be represented by either of the other plaintiffs no later than August 31, 2012, failing which the defendants could move to have WWT’s claim struck. No such motion was brought by the plaintiffs, either before August 31 or on the return of the defendants’ motions.

[42] In the normal course, a motion by a shareholder or officer for leave to represent the corporation is straight forward and generally granted. While Mr. Fockler was injured from his accident, the material filed indicates that by July 13, 2012 he was engaged in lengthy and frequent email correspondence. It further indicates that Mr. Fockler was aware of the order but saw no reason to bring such a motion before the return date of the defendants’ motions. He advised counsel for Eisen that he intended to bring a motion for leave “with a one or two paragraph affidavit” on September 25, 2012. Counsel for Eisen reminded him of Justice Low’s August 31st deadline. Not only did the plaintiffs not comply with Justice Low’s order, they have taken no steps to bring the motion on before me.

[43] During the argument, I advised Mr. Fockler that I thought his attitude in respect of the motion for leave was disrespectful of the court. He denied that. Based on his actions in the face of Justice Low’s order, however, I am unable to come to any other conclusion. He has provided no excuse for not bringing the motion prior to August 31, 2012 or for not bringing it before me. In the circumstances, therefore, I would also strike the claim of WWT for failing to comply with rule 15.01(2).

Conclusion

[44] For the above reasons, the statement of claim in respect of the plaintiffs Lyn Cartwright and WWT is struck in its entirety without leave to amend. It is further struck in respect of Mr. Fockler with leave to amend within 30 days in respect the claim against Eisen and EGB only. In the absence of Mr. Fockler amending the statement of claim and serving it on counsel within the 30 days, the action will be dismissed.

[45] Further, the statement of claim is struck in its entirety against Kaye with no leave to amend.

[46] The defendants were successful in their respective motions and are entitled to their costs payable by the plaintiffs.

[47] Eisen has submitted a bill of costs for the entire action. In my view, in light of the result, Eisen and EGB are entitled to the costs of the motion only. The action continues. I also feel that the time claimed contains a certain amount of duplication. Further, I would award only one counsel fee on the motion. In total, therefore, I award Eisen and EGB their costs of the motion, fixed at $4,000 inclusive of disbursements and GST.

[48] Because the plaintiffs’ claim against Kaye has been dismissed in its entirety, they are entitled to their costs of the action including the costs of the motion. Kaye has submitted a bill of costs for the action claiming partial indemnity costs of $10,769.60 made up of fees of $10,325.21 (plus GST) and disbursements of $444.39. While I have no issue with the time spent on the motion, I think the balance of the time claimed is excessive given the stage of the action. As a result, I award Kaye their costs of the action, including the motion, on a partial indemnity basis, fixed at $6,000, inclusive of disbursements and GST.

L.A Pattillo J.

Released: October 5, 2012