COURT FILE NO.: 1979-10
DATE: 2013/03/28
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DEBORAH LYNE CHRISJOHN, KENNARD CHRISJOHN, ROSALEEN P. WEILER and MICHELLE CHRISJOHN (Plaintiffs)
- and –
ROBERT J. NOBILI (Defendant)
BEFORE: Justice L. C. Leitch
COUNSEL: Maia L. Bent, for the Plaintiffs
The Defendant, not represented
HEARD: February 25, 2013
E N D O R S E M E N T
[1] Mr. Nobili moves for summary judgment pursuant to rule 20.01(3). As set out in his notice of motion, he seeks a finding that the claim is premature and a finding that plaintiffs’ counsel is the cause of a three year delay. He filed the form of order sought at the hearing of the motion, which will be discussed further in these reasons.
Background
[2] As set out in Mr. Nobili’s affidavit, filed in support of this motion, the plaintiff Deborah Chrisjohn was seriously and permanently injured in a motor vehicle accident on August 31, 2002. On August 30, 2004, Mr. Nobili, who was then her lawyer, issued a statement of claim on her behalf.
[3] There were two orders issued in the action. The first, an order of Seppi J. dated November 10, 2005, dismissed the plaintiffs’ action against Belair Insurance Company and Economical Mutual Insurance Company without prejudice to the plaintiffs to amend the claim to name the proper parties by an amendment to be completed within 20 days. The second was an order of Mossip J. dated January 12, 2006 to amend the statement of claim to add the defendants Iroquois Ironworks Ltd. and Langdon Insurance Company as defendants to the action and to properly plead their relationship to the automobile driven by the plaintiff, Deborah Chrisjohn and the legal liability arising therefrom. This order also provided that the order of Seppi J. would not be varied.
[4] A status notice was issued pursuant to rule 48.14 dated May 14, 2007. It gave notice that the action would be dismissed for delay unless, within 90 days after service of the notice, it was set down for trial, terminated, or a judge presiding at the status hearing ordered otherwise. No procedural steps were taken pursuant to the notice.
[5] On August 21, 2007 the Local Registrar of this court dismissed the action pursuant to rule 48.14.
[6] By email communication dated July 11, 2009, the plaintiff Deborah Chrisjohn terminated Mr. Nobili’s duties as her counsel. She thereafter retained Mr. Murray. Mr. Murray advised Mr. Nobili, in correspondence dated October 1, 2009, that he had been retained by Deborah Chrisjohn to assume carriage of her file. According to the materials filed on the motion, Mr. Nobili’s file was obtained by Mr. Murray in January 2010.
[7] The plaintiffs issued a statement of claim in this action on August 11, 2010. This statement of claim seeks damages for breach of contract, negligence, and breach of fiduciary duty. In para. 5 of the statement of claim, the plaintiffs’ state that the order of Seppi J. “was never communicated to them by the defendant”, and in para. 16 state that “the defendant failed to communicate to them the terms of the order of Mossip J.”.
[8] In para. 17 of the statement of claim, the plaintiffs state that the existence of the status notice was not communicated to them by the defendant. Further, in para. 18 of the statement of claim, the plaintiffs state that “the dismissal of the action was never communicated to the plaintiffs by the defendant, and, in fact, the defendant gave the plaintiffs false assurances for the next two years that he was continuing to maintain a law suit on their behalf”.
[9] The plaintiffs set out in the following paragraphs of the statement of claim that the applicable limitation periods relating to the motor vehicle accident have now expired and “that the limitations were missed solely as a result of the negligence of the defendant, and that the defendant is now responsible for the full extent of the plaintiffs’ law suit and damages as there were no liability issues in the underlying claim”.
[10] Paragraph 21 of the statement of claim sets out further particulars of the alleged negligence, breach of duty of care, breach of contract, and dereliction of fiduciary duty by the defendant in sub paragraphs (a) to (l).
[11] Paragraph 23 of the statement of claim provides as follows:
The plaintiffs plead that, as a result of the negligence of the defendant, they can no longer maintain any action for personal injury against the tortfeasor or insurers responsible for the plaintiffs’ losses, including accident benefit insurers, or, in the alternative, that, if an action can be maintained, the plaintiffs cannot recover the time measure of their damages. They claim against the defendant for all the damages they have suffered as a result.
Procedural History in This Action
[12] On March 22, 2011 the plaintiffs moved for an order directing Mr. Nobili to forthwith comply with rule 6.09(20) of the Rules of Professional Conduct by providing notice of the plaintiffs’ claim to his professional liability insurer, LawPro.
[13] The grounds for that motion were that Mr. Nobili had been requested to contact his insurer to put it on notice of the plaintiffs’ claim on September 27, 2010 but had not replied to that request. Thereafter, the plaintiffs had provided notice to Mr. Nobili’s insurer, however, the insurer would not accept notice of the claim in that fashion and required that it be notified by Mr. Nobili personally.
[14] The motion was before Rady J. who, as set forth in para. 8 of her endorsement dated March 29, 2011, concluded the following:
In the circumstances, I am going to adjourn the motion to permit the plaintiffs to initiate a complaint to the Law Society of Upper Canada. It may be that the Law Society is able to report the claim to LawPro. The plaintiffs are at liberty to return their motion in the future on five days’ notice to Mr. Nobili, in order to address the issue of a mandatory order if their inquiries at the Law Society are not fruitful.
I conclude by noting that I cannot understand why Mr. Nobili would not report the claim to LawPro so that both his rights and those of his former clients are protected.
[15] Mr. Murray filed a complaint with the Law Society of Upper Canada and the Law Society reported the claim against Mr. Nobili to his insurer. As a result, an adjuster became involved. Subsequently, however, the insurance file was closed and LawPro has declined to represent Mr. Nobili in this action.
[16] After LawPro terminated its involvement with this matter, a status hearing was held on December 21, 2012. Mr. Nobili brought this motion, returnable at the status hearing, however, the motion could not be heard and the parties were directed to set a special appointment.
[17] Rady J. noted the following, in para. 4 of her January 2, 2012 endorsement, respecting the matters dealt with at the status hearing:
At the status hearing, Mr. Nobili made it clear that he did not seek a dismissal for delay. I am satisfied that the claim ought not to be dismissed for delay. Plaintiffs’ counsel has been awaiting a decision from LawPro as to whether it would appoint counsel to defend Mr. Nobili. Mr. Kalnins advised that LawPro did not communicate its position until October, 2012 when it declined to appoint counsel.
[18] In his affidavit, sworn in response to this motion, Mr. Murray has deposed that he has now prepared motion materials seeking to set aside the Registrar’s dismissal of the tort action. Deborah Chrisjohn has also sworn an affidavit in response to this motion and in support of the motion to set aside the administrative dismissal order.
[19] Part of para. 17 and para. 18 of her affidavit states as follows:
…It was always my intention to pursue my claim for compensation. During the course of the file, I did undergo an Examination for Discovery, and did attend a mediation/settlement conference. As such, I do not believe the Defendants would be prejudiced if the dismissal order were to be set aside.
I make this Affidavit in good faith and in support of a motion to set aside an administrative dismissal Order, also expecting that reference may be made to this Affidavit in connection with the motion for summary judgment initiated by Mr. Nobili.
The Applicable Rule of Civil Procedure and Relevant Legal Principles
[20] Rule 20.01(3) provides that a defendant may move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.
[21] The court shall grant summary judgment pursuant to rule 20.04(2) if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim.
[22] The Ontario Court of Appeal ruling in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, 108 O.R. (3d) 1 is the leading decision on summary judgment motions.
[23] The Court of Appeal, at paras. 40-44, provides guidance as to what types of cases are amenable to summary judgment:
Where the parties agree that it is appropriate to determine an action by way of a motion for summary judgment;
Where the claims or defences have no chance of success at trial; or
Where the trial process is not required in the “interest of justice”.
[24] It is with respect to the third category that the Court of Appeal developed the “full appreciation” test.
[25] Therefore, before the motions judge exercises the powers pursuant to rule 20.04(2.1) (to weigh the evidence, evaluate credibility and draw inferences), the court must address a threshold issue:
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? (Combined Air at para. 50)
Disposition
[26] Mr. Nobili seeks an order that:
the only genuine issue is a question of law;
the plaintiffs’ claim is an error of law as it alleges the Brampton Registrar’s dismissed order is res judicata. Only a judge, not a Registrar, can finally dispose of a claim without a trial pursuant to rule 37.02(3); and
the plaintiffs’ claim be dismissed pursuant to rule 20.04(4).
[27] Mr. Nobili’s position as the moving party is that the solicitor’s negligence claim asserted in this action is a fiction. He emphasizes the limited jurisdiction of the Registrar and submits that the plaintiff’s claim in the tort action has not been finally disposed of.
[28] Mr. Nobili’s position is that para. 23 of the statement of claim, in which the plaintiffs’ plead that as a result of Mr. Nobili’s negligence they can no longer maintain their tort action, is the crux of the plaintiffs’ claim. He further submits that para. 5 of his statement of defence is fully responsive to this argument; it pleads that the plaintiffs’ claim does not reveal a valid cause of action because the tort action is not “statute barred or otherwise legally estopped by a final order of the court for which no appeal lies”. Mr. Nobili’s position is that the plaintiffs ought to have done what they are now in the process of doing; that is, moving to set the Registrar’s dismissal of the action.
[29] Mr. Nobili is critical of Mr. Murray for not moving to set aside that order more promptly. Mr. Nobili took issue with the fact that the plaintiffs’ new counsel did not move to set aside the Registrar’s dismissal order until this point in time. Mr. Nobili disagreed with Mr. Murray’s concern and reluctance to move to set aside the dismissal order before Mr. Nobili had reported the plaintiffs’ claim in this action to LawPro.
[30] I am not convinced, however, that no cause of action exists in this case as Mr. Nobili asserts.
[31] When the motion to set aside a dismissal order is heard, the court hearing that motion will apply the criteria set out in what has been described as the Reid test (from Reid v. Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 (S.C.)) which has been approved by a number of decisions by the Ontario Court of Appeal including Marche D’Alimentation Denis Theriault Ltee v. Giant Tiger Stores Ltd. (2007), 2007 ONCA 695, 87 O.R. (3d) 660 (C.A.). It is unknown whether the court hearing the motion to set aside the dismissal order will find that the criteria set out in the Reid test have been met and, therefore, it is unclear if the court action can continue. The four criteria which a plaintiff must satisfy on a motion to set aside a Registrar’s order dismissing an action are: that there is an explanation for the delay in the litigation, that the dismissal order was made as a result of inadvertence, that the motion to set aside the dismissal is to be brought promptly, and that the defendant will not suffer any significant prejudice as a result of the plaintiff’s delay or as a result of steps taken following dismissal of the action.
[32] For this reason, and because the statement of claim alleges other acts of negligence in addition to the dismissal order, the test under rule 20.04(2) has not been met. I cannot conclude that there is no genuine issue raised in the plaintiffs’ statement of claim requiring a trial.
[33] Mr. Nobili’s motion is therefore dismissed.
Justice L. C. Leitch
DATE: March 28, 2013