ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 95-CQ-61553
DATE: 20130705
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
JOHN A. HARRISON
Plaintiff
– and –
JOEL SKAPINKER, HEIFETZ, KROZIER & SCHELEW and MCMILLAN, BINCH and PAUL E. MALLON and ROGER, SMITH, DICK & THOMSON
Defendants
- and –
BORDEN LADNER GERVAIS and TIMOTHY BATES
Third Parties
John A. Harrison
in person
Christopher M. Moore
for the defendants
HEARD: JUNE 4, 2013
CHAPNIK J.:
background
[1] This is a long standing action for damages for solicitors’ negligence. The defendants move for summary judgment under rule 20.04(2)(a) of the Rules of Civil Procedure, seeking a dismissal of the action against them on the grounds that there is no genuine issue requiring a trial; or, an order dismissing this action as it is an abuse of process (rule 21.01(3)). Alternatively, they seek an order pursuant to rules 57.03(1) and (2) dismissing the action for the plaintiff’s failure to pay the $10,000 in costs awarded against him by O’Marra J. on April 18, 2012.
[2] In 1985 the plaintiff commenced an action against various individuals and companies, alleging an entitlement to buildings located on a property then owned by his parents and believed to have development potential. In 1989 the action was dismissed for delay at a status hearing. The subsequent motion to set aside the dismissal and the appeal from this were also dismissed.
[3] On March 1, 1995, the plaintiff commenced the present action against the solicitors who represented him in the 1985 action and their respective law firms. He alleged that the 1985 action was dismissed and not reinstated as a result of the defendants’ negligence and breach of duty.
[4] The parties agreed that the issues relating to the 1985 action would be determined by way of arbitration, pursuant to an arbitration agreement executed on March 1, 2005. The terms of the arbitration were negotiated through counsel over a period of several months and the arbitration proceeded with agreed statements of facts and issues, and a joint document brief.
[5] The chosen arbitrator, by agreement between the parties, was the late Honourable J. Drew Hudson, Q.C., a former justice of the Ontario Superior Court of Justice.
[6] Following an eight day hearing and with written submissions of the parties, Mr. Hudson reserved his decision. After the proceeding had concluded but before the release of the arbitration decision, the plaintiff asserted a reasonable apprehension of bias on the part of the arbitrator and brought an application under s. 13(1) of the Arbitration Act challenging Mr. Hudson’s role in the arbitration. Mr. Hudson dismissed the plaintiff’s bias application the following month.
[7] On January 25, 2007, Mr. Hudson delivered his decision. He concluded that the plaintiff “would not have had any reasonable probability or substantial chance of succeeding in the 1985 action”, and even had he succeeded, his damages would have only been in the amount of $5,356.12.
[8] On March 2, 2007, the plaintiff filed a Notice of Appeal in the Ontario Superior Court seeking to appeal the arbitration decision. However, several delays respecting the appeal ensued. Finally, on March 12, 2012, upon motion by the defendants, O’Marra J. dismissed the plaintiff’s appeal for delay and for failing to deliver appeal materials by February 29, 2012 as had been ordered by Perell J. on August 15, 2011 (Harrison v. Skapinker, [2012] O.J. No. 1229 (S.C)). Costs were awarded against the plaintiff in the all-inclusive sum of $10,000 for the appeal and the motion to dismiss. The costs order remains outstanding.
the position of the parties
[9] The defendants state that the plaintiff is bound by the arbitration decision which fully dealt with the issues pertaining to the 1985 action. The parties agreed to have those issues determined by way of arbitration and agreed that, subject to appeal, the arbitrator’s decision would be final. The appeal of the arbitrator’s decision has now been dismissed.
[10] Since the arbitrator found that the plaintiff would not have been successful in the 1985 action, the plaintiff has no claim for damages against the defendants flowing from the dismissal of the 1985 action; and there is no genuine issue requiring a trial for its disposition.
[11] The plaintiff/appellant “challenges the constitutional legitimacy of all the hearings and decisions, in which he has been forced to [be] self-represented without full accommodation of his handicaps, and where there is this obvious conflict of interest behind the gross misrepresentations and frauds by the defendants and gross errors by sitting judiciary”. He seeks the following orders:
a) an order denying and dismissing the defendants’ motion given the demonstrated abusive process of the arbitration and the extreme bias of the arbitrator, or alternatively dismissing this motion as a damaging discriminatory action that fails to comply with the required accommodation of a visually handicapped citizen recognized under both the Human Rights Code and the policy of the Law Society of Upper Canada, “acting in person under duress pending requisite legal representation” as declared for about two decades.
b) an order for a court ordered supervised mediation on the amounts owing to Harrison by the defendants and their backers LSUC/LawPRO, with the mediator nominated and approved by Harrison, and a prior good faith payment by LawPRO et al. to Harrison of the full amount of the original amount sought in the original 1985 case, together with the cumulative annual interest at the prevailing yearly court interest rate from the cause of action events until the present.
c) as no costs have ever yet been paid to the plaintiff for “all the delays caused by all the lawyers to date”, an order quashing the costs awarded erroneously by Justice O’Marra. The issue of costs to be determined in the mediation.
analysis
[12] In this action commenced in 1995, the plaintiff claimed damages for the loss of opportunity to have the issues in his 1985 action adjudicated on the merits. The parties, with the assistance of counsel, negotiated and then entered into an arbitration agreement with the Honourable J. Drew Hudson, Q.C., acting as arbitrator. Both the plaintiff personally and his legal counsel executed the arbitration agreement on March 1, 2005.
[13] The main issue to be determined in the arbitration was whether or not the plaintiff would have succeeded in his 1985 action against one or more of the defendants; and if so, the quantum of damages.
[14] The circumstances giving rise to the agreement to arbitrate were set out in the arbitration agreement’s preamble and reiterated in the arbitrator’s Reasons for Decision, as follows:
In the present Action, the plaintiff is suing his former solicitors for negligence and breach of duty as a result of the former Action being dismissed at a status hearing in 1989 and not being re-instated.
It would be necessary to hold a “trial within a trial” in the present Action to determine whether the plaintiff could have succeeded in his claim in the former Action and, if so, the damages he might have been awarded.
The parties wish to have the issues that would have been the subject of the trial within a trial determined instead by binding arbitration in order to facilitate settlement or to narrow the issues for trial in the present Action.
[15] After eight days of hearing and with written submissions of the parties, the arbitrator issued a 16 page decision dated January 25, 2007, in which he concluded:
The Plaintiff would not have had any reasonable probability or substantial chance of succeeding in the 1985 action; and the Plaintiff’s damages in the 1985 action would have been assessed at $5,356.12 plus prejudgment interest even though the Defendants would not be liable to pay those damages.
[16] The consequence of this would be that the action of the plaintiff against his solicitors for damages for negligence in that action would have been unsuccessful; or if successful, the damages would only have been $5,356.12.
[17] In short, arbitrator Hudson held that the plaintiff had not suffered any damages as a result of the dismissal of the 1985 action.
[18] On March 2, 2007, the plaintiff filed a Notice of Appeal from the orders of Mr. Hudson. Five years later, on motion by the defendants, the plaintiff’s appeal was dismissed for delay and non-compliance by order of O’Marra J. with written reasons released March 21, 2012.
[19] What the plaintiff is now attempting to do is to re-litigate the case. The problem is that all of the issues he has raised in this motion have been previously judicially determined. For example, in a decision dated March 22, 2010, Conway J. dismissed his application for public funding for his ongoing legal cases. In a decision dated November 15, 2011, the Human Rights Tribunal of Ontario dismissed the plaintiff’s application for state-funded legal representation, in which he alleged discrimination on the basis of disability.
[20] Moreover, the parties agreed to determine the matters in issue with respect to the 1985 action by way of arbitration, and agreed that the arbitrator’s decision, subject to an appeal, would be final.
[21] Paragraph 9 of the arbitration agreement states:
- The parties agree that the award of the Arbitrator shall be final and binding upon them in the present Action, subject to an appeal without leave on questions of fact, questions of law or questions of mixed fact and law to the Ontario Superior Court of Justice.
[22] When considering the principle of res judicata, which serves to prevent the re-litigation of issues that have been previously determined between the parties, a final arbitration decision has the same effect as a final judicial decision (Rathwell v. Hershey Canada Inc., 2001 8598 (ON CA), [2001] O.J. No. 3730 (C.A.), at para. 5).
[23] The plaintiff was not successful in appealing the final arbitration award and it therefore remains binding. Justice O’Marra found the delay in the appeal proceeding to be excessive and inordinate. He gave cogent reasons for his decision to dismiss the plaintiff’s appeal of the arbitrator’s award. In doing so, he stated, at para. 25:
The motion to dismiss this appeal is not based on an isolated or technical breach of an interlocutory order. This articulate, self-represented litigant has been accorded extensive latitude by the Court in adjourning the filing date and hearing over the years. The Order of Justice Perell on August 15, 2011 allowed the Applicant six months to either retain counsel or be prepared to present the appeal himself. The peremptory nature of both the filing date and hearing was made crystal clear to the Applicant. Indeed, Justice Perell noted that the Applicant himself suggested that April of 2012 would be reasonable time to complete the filings (by February 29, 2012) and the hearing itself. The Appellant now effectively seeks a further adjournment.
There comes a time when a further delay in proceedings is entirely unacceptable. There is no indication that the Defendants have delayed this proceeding in any way. It would be contrary to the interests of justice to yet again postpone this matter or proceed on an entirely unsatisfactory record.
[24] Thus, the appeal of arbitrator Hudson’s decision has now been dismissed and no appeal has been taken from the order of O’Marra J. The arbitrator’s decision must, therefore, stand. The matters at issue in this action have been determined in the defendants’ favour by way of the arbitration award dated January 25, 2007. This court has no jurisdiction to revisit the issues or to determine the plaintiff’s alleged damages, as requested by him. Moreover, allowing the action to proceed now would risk undermining the integrity of the judicial system, pose additional hardship for witnesses, be a waste of judicial resources and create unnecessary expense and effort for the parties.
conclusion
[25] I am satisfied there is therefore no genuine issue of fact or law requiring a trial for its resolution within the meaning of Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, [2011] O.J. No. 5431, at para. 50. In the circumstances, it is unnecessary for this court to rule on the alternative grounds for summary judgment or dismissal of the plaintiff’s action, posed by the defendants.
[26] At the conclusion of the motion before me, I asked the parties for costs submissions, if successful. Defendants’ counsel indicated that the matter is complex, involving costs of the action as well as the motion and arbitration. He stated he would prefer to wait until the decision is rendered to make submissions.
[27] Mr. Harrison indicated that he wanted a court ordered mediation and $100,000 plus interest.
[28] The only two costs orders made previously were the $10,000 costs award of O’Marra J. against the plaintiff, which has not been paid; and an award of $5,600 in the plaintiff’s favour awarded by Stinson J., which I understand has been paid.
[29] In response to the defendants’ costs submissions, which span three pages in summary and include various costs outlines and some case law (in all, 30 pages), Mr. Harrison has requested a further hearing date to argue the motion in order to “fully respond” to the defendants’ cost submissions and to present “new added scientific evidence” of his visual disability. He attaches a Notice of Constitutional Questions to be determined. At the conclusion of his 35 paged faxed submissions, he puts forth an offer to settle the 1995 case, subject to the additional hearing being completed as follows:
I hereby Offer to Settle the 1995 case now on the following substantive terms:
I do so without prejudice to my taking this 1995 case history and my full damages resultant, without naming these defendants again, before further courts for systemic issues review, and
with this motion adjourned without determination of the merit of the Arbitration Agreement, and
provided both sides are responsible for their own costs as per the law on costs, and
provided the defendants pay to Harrison $100,000.00, the amount that could and should have been recovered for Harrison by them 28 years ago, and
provided Harrison is saved harmless and free of any action by these defendants, their counsels, LawPRO and the Law Society of Upper Canada hereafter,
subject to added refinement and technical terminology once I am able to have the requisite legal representation and expert advisor’s recommendations that I find acceptable.
[30] The defendants submitted a costs outline for the motion seeking $16,496.12 on a partial indemnity basis and eliminating any perceived or actual duplication with the costs awards noted above.
[31] Regarding the costs of the action, the defendants submitted costs outlines for the three law firms involved in acting for the various defendants, plus the costs of the arbitration attributable to Mr. Harrison. The sum total of these claimed costs is $436,042.89.
[32] It is well settled that costs in a court motion or action generally follow the event; that is, the successful party is entitled to its costs subject to the discretion of the court under s.131(1) of the Courts of Justice Act and the principles outlined in rule 57.01 of the Rules of Civil Procedure. The complexity of the matters raised in this litigation which lasted over a period of 18 years and involved many motions and hearings, is self-evident.
[33] Notwithstanding the above, the defendants submit that in the circumstances a costs award on a partial indemnity scale for the motion and the 1995 action, in the all-inclusive sums of $10,000 and $150,000, respectively would be a realistic and appropriate award. I agree that this is a fair and reasonable assessment within the context of the considerations in rule 57.01 and the applicable case law (see for example, Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.), and it is within the reasonable contemplation of the parties.
[34] The motion of the defendants for summary judgment is allowed. The plaintiff’s action as against all of the defendants is dismissed pursuant to rule 20.04(2)(a).
[35] Costs are awarded to the defendants as against the plaintiff in the all-inclusive sum of $160,000.00.
CHAPNIK J.
RELEASED: July 5, 2013
COURT FILE NO.: 95-CQ-61553
DATE: 20130705
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
JOHN A. HARRISON
Plaintiff
– and –
JOEL SKAPINKER, HEIFETZ, KROZIER & SCHELEW and MCMILLAN, BINCH and PAUL E. MALLON and ROGER, SMITH, DICK & THOMSON
Defendants
- and –
BORDEN LADNER GERVAIS and TIMOTHY BATES
Third Parties
REASONS FOR JUDGMENT
CHAPNIK J.
RELEASED: July 5, 2013