ONTARIO
SUPERIOR COURT OF JUSTICE
TORONTO SMALL CLAIMS
JOAN LOUISE SEGUIN
Plaintiff
-and-
PATRICE A.J. COB COTE LAW PROFESSIONAL CORPORATION COTE; COTE LAW PROFESSIONAL CORPORATION
Before : Deputy Judge Catharine M. Buie
Counsel: Joan Louise Seguin representing herself
Patrice A. J. Cob, for Cote law Professional Corporation
Heard : May 22, 2012, February 13, 2013
JUDGMENT
PLAINTIFF’S CLAIM AMENDED 3 TIMES
[1] This action arises out of Ms. Seguin, the Plaintiff, filing a complaint against her brother, Dr. Lawrence A. Edwards, with the College of Physicians and Surgeons of Ontario in October 2006.
Ms. Seguin alleges that her brother is guilty of misconduct for treating a family member and/or committing her to Humber River Regional Hospital for a psychiatric assessment pursuant to a Form 1 in 2001.
The Complaints Committee dismissed the complaint and she requested the Health Professional Appeal and Review Board to review the decision.
Prior to retaining the defendant, Mr. Patrice Cote, a Toronto Barrister to represent her, a Pre-review Conference had been scheduled by the Health Professional Appeal and Review to take place on May 23, 2008.
On May 13, 2008 Ms. Seguin retained Patrice Cote to represent her at that Pre-Review Conference 10 days hence.
[2] The Plaintiff is claiming the sum of $23,500.
[3] The Plaintiff alleges that Mr. Cote is negligent in that he failed to advise that if she wished to sue her brother, (Dr. Lawrence Albert Edwards) the limitation period was fast approaching. By choosing and/or agreeing to a date of October 23, 2008 for the next pre-trial conference, Ms. Seguin alleges that she was precluded from suing her brother due to the expiry of the Limitation Period.
[4] The Plaintiff is seeking the following:
a) compensation for alleged losses incurred by the alleged failure of Mr. Cote to represent her;
b) compensation for the harassment which she suffered which caused her to move to Gatineau and which she states is still ongoing and is the outcome of Mr. Cote failing to advise her of the Limitation Period;
c) compensation for the evidence which has been stolen from her; and
d) compensation for his alleged failure to return her unused retainer and her documents.
DEFENCE
[5] Mr. Cote states that he was not retained to sue Ms. Seguin’s brother, Dr. Edwards. His retainer was limited to representing Ms. Sequin at the Pre-review Conference.
[6] After representing Ms. Seguin at the Pre-Review Hearing, Mr. Cote reported to her and sent her a copy of the Pre-Review Conference Report.
[7] Ms. Seguin discharged him on June 3, 2008.
[8] Ms. Seguin documents and final account was sent to her June 5, 2008.
FACTS and FINDINGS
[9] Ms. Seguin alleges negligence/and breach of contract on the part of Mr. Cote in that he failed to advise her of the Limitation Period in regards to an action against her brother, Dr. Edwards for which she now alleges she is precluded in moving forward.
[10] Ms. Seguin had registered a complaint about her brother, Dr. Edwards alleging that he had been improperly treating and was interfering with her medical care. The Complaints Committee of the College of Physicians and Surgeons of Ontario dismissed her complaint. [Exhibit 3]
[11] Ms. Seguin raised with Mr. Cote that the investigator had failed to obtain the records from a Thunder Bay Psychiatric hospital and from the Humber River Regional Hospital. It was her position that those records were an integral part of the record and a review of the same by the Committee would have supported her complaint.
[12] Mr. Cote attended the Pre-review Conference on May 23, 2008 and put the above position before the Board. He also indicated that as he had only been recently retained he needed time to prepare. [Exhibit 1 Tab 11 paragraphs 4 and 5]
[13] The Board accepted Mr. Cote’s submissions, recommended scheduling a further Pre-review conference to occur in June and ordered that the Review would take place on October 23, 2008. [Exhibit 1 Tab 11, paragraphs 5, 6, 7 and Exhibit 2]
[14] Mr. Cote discussed the outcome with Ms. Seguin on May 26, 2008 and wrote to her on May 29, 2008 requesting her to confirm that her records had been kept and requiring time estimate of when the records would be received. [Exhibit 1 Tab 12]
[15] Ms. Seguin discharged Mr. Cote on June 3, 2008. [Exhibit Tab 18]
[16] Ms. Seguin documents and final account were sent to her June 5, 2008. [Exhibit 1 Tab 16]
[17] On October 23, 2008 the review of the Health Professions Appeal and Review Board took place. The Board concluded that the Complaints Committee was to further investigate the matter and obtain the full records of Ms. Seguin’s hospitalization at Humber River Regional Hospital in 2001 and issue a decision following its review. [Exhibit 3 paragraph 49]
[18] In or about July 2009, Ms. Seguin lodged a complaint with the Law Society of Upper Canada which was dismissed on January 26, 2010. [ Exhibit 5 Tab 1 paragraph 8]
[19] In January 2010 (date not provided) The Inquiries Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario having obtained the Humber River Regional Hospital admissions forms which showed that Dr. Edwards did sign a Form 1 on December 20, 2001, directed that he attend at the College to be cautioned with respect to treating a family member and with respect to his initial response to the complaint. [Exhibit 4].
[20] Prior to receiving the 2010 decision, Ms. Seguin had approached 2 firms concerning the alleged negligence of Mr. Cote and commencing an action against her brother Dr. Edwards. [Exhibit 7 and Exhibit 8]
The documents which were reviewed by the authors of Exhibit 7 and 8 and which were the foundation for their opinions were not placed in evidence nor were the authors called to testify. Based on the foregoing, I ascribe very little weight, if any to Exhibits 7 and 8.
ISSUES
[21] What was the scope of Mr. Cote’s retainer?
[22] Did Mr. Cote fulfill his retainer?
[23] Did Mr. Cote return all of the documents and unused retainer monies?
[24] If Mr. Cote failed to fulfill his retainer do the damages which are being sought by Ms. Seguin flow from that failure? And if so, has she proved the same?
FINDINGS/ CREDIBILITY
[25] Over the 2 plus days, I had the opportunity to closely observe and listen to Ms. Seguin, Mr. Cote and Father Cross who was the witness for the Plaintiff.
[26] All of the above persons were very forthright in their evidence.
FINDINGS/ LEGAL
[27] While the court has compassion and empathy for the distress expressed by Ms. Seguin, those emotions cannot detract from my judicial duty and responsibility to Ms. Seguin and to Mr. Cote.
The responsibility the court is to weigh the evidence, apply the law to the facts and render judgment on the issues before it.
As stated by Justice Edwards in Hedley v Irving (2011) O.J. No. 2515
“The plaintiff had a positive responsibility to go beyond mere supposition and he has failed in his legal responsibility to put his best foot forward and establish on credible expert evidence that the defendants breached the standard of care owed to him in the conduct of the litigation which was ultimately settled before Lissman J.” (paragraph18)
[28] Ms. Suguin’s testimony reveals her frustration and belief that the actions of her brother have resulted in an unwanted interference in her life. The court cannot comment on the same as the evidence was not before it, nor was Dr. Edwards a party to this action.
[29] However, not withstanding the feelings and expressed by Ms. Seguin, her testimony and the material filed by her (exhibits), she has failed in her legal responsibility to go beyond mere supposition and establish that Mr. Cote’s retainer was not limited to attending the pre-review conference, but was to investigate and render an opinion on the viability of an action against Dr. Edward.
The Court finds that Mr. Cote was not retained to investigate or commence an action against Dr. Edwards. Rather, Mr. Cote was retained to represent Ms. Saguin at the pre-review conference and bring forth her position that the investigator had failed to obtain the Humber River Regional Records and those of the Thunder Bay Hospital.
[30] Given the lateness of the retainer, Monday May 13, in relation to the date of the Pre-review Conference Counsel, Friday May 23, (6 business days prior to the hearing), the actions taken by Mr. Cote:
a) requesting an adjournment; and
b) advocating the necessity for the Humber River Regional Hospital the Thunder Bay medical records to be part of the record were appropriate and in keeping with attitude and behaviour of a Barrister.
[31] As stated in paragraph 29, I do not find that Mr. Cote was retained to contemplate legal action against Dr. Edwards. It is clear from the evidence that Ms. Saguin wanted Dr. Edwards not to be further involved in her life and felt that he had unduly interfered, but that desire on the part of Ms. Saguin does not translate to retaining Mr. Cote to undertake an analysis of what, if any legal action, could be undertaken, the costs involved, the required evidence, the ability to obtain the same, the damages flowing from the conduct and the relevant limitation periods pursuant to the Statute of Limitations.
[30] I find that Mr. Cote’s retainer was to represent Ms. Saguin at the Pre-review Conference which he did.
[31] I find that Mr. Cote reported to his client the results of the Pre-review Conference and that Ms. Saguin by letter dated May 30th and by a telephone call June 3, 2008 expressed her displeasure with Mr. Cote. (Exhibit 1 Tab13, 14] and subsequently discharged him.
[32] I find that Mr. Cote did return the documents enclosing the same with his final account which including returning unused retainer monies.
[33] If I am wrong and Mr. Cote was retained to determine if a civil action lay against Dr. Edwards, Ms. Saguin has failed to do the following:
that Mr. Cote was negligent and failed to meet the standard of a reasonably competent litigation counsel. (Hedley supra paragraph 12); and
failed to establish any damages flowing from that failure.
The action is dismissed with costs.
COSTS
Costs normally follow the event and if Mr. Cote wishes the same, he may in writing request that the matter be placed before me on one of my regular scheduled trial dates.
Date: March 21, 2013 Catharine M. Buie