ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-10-14951
DATE: 20130125
BETWEEN:
YULI ZHANG and CHANGCHUN XING
Plaintiffs
– and –
STEPHEN SHANFIELD
Defendant
Yuli Zhang and Changchun Xing, acting in person
Mason Greenaway, for the Defendant
HEARD: September 8, 2011, April 10, 30, 2012, May 1, 2, 4, 2012, September 10, 2012 and October 9, 2012
gates j.:
[1] The plaintiffs/respondents were married in China in 1997. Changchun Xing (“Xing”) emigrated to Canada in 1996 and in 2000 became a Canadian citizen. He was followed by his wife, Yuli Zhang (“Zhang”), who arrived in Canada in 1999 and has remained a landed immigrant.
[2] It is to be observed that throughout these proceedings the plaintiffs were accompanied by Mr. Shengli Wong as interpreter, to assist Xing and Zhang in translating English into Mandarin. Following a lengthy questioning of Mr. Wong I was satisfied of his abilities as translator, as was counsel for Shanfield.
[3] Additionally, because they chose to represent themselves, I explained at length to the respondents their rights and obligations as self-represented litigants. They both confirmed their intention to proceed without a lawyer.
A. OVERVIEW
[4] On May 15, 2004, while travelling on highway I-94 in Taylor, Michigan on route to the Detroit airport, they were involved in a motor vehicle accident.
[5] Xing had been operating their vehicle and his wife was sitting in the right passenger seat when a mechanical problem forced him to move his vehicle off the travelled part of the road, as much as he could, owing to road construction. He activated the four-way flashers.
[6] Zhang got out of the vehicle to inspect and was in the process of getting back into it when their vehicle was struck.
[7] The accident in question was a rear-end type, which would place liability at the feet of the offending motor vehicle.
[8] The driver of the other vehicle fled the scene and has never been identified or located.
[9] Because of her injuries Zhang was taken first to a local hospital and then transferred to the University of Michigan Medical Centre.
[10] Approximately six months later, on December 5, 2004, Xing met with the defendant/solicitor, Stephen Shanfield (“Shanfield”), to discuss his wife’s injuries. She was not present at that meeting because she had returned to China to live with her parents while recuperating from her motor vehicle accident injuries.
[11] Shanfield states that Xing did not sign a retainer agreement at this meeting, nor, at any subsequent point thereafter.
[12] On or about March 26, 2006, after Zhang had returned from China, she attended at Shanfield’s office, about two months before the expiry of the limitation period. She was provided with a retainer agreement that she took with her. She later returned a signed copy to Shanfield on April 4, 2006. Within a month he issued a statement of claim on her behalf, in which he claimed general and pecuniary damages for her as well as Family Law Act damages on behalf of Xing.
[13] Because Shanfield now possessed a retainer agreement he was able to secure Statutory Accident Benefits (“SABS”) from their insurer, the Guarantee Company of North America (“Guarantee”) with whom they were insured under a Standard Automobile Policy. It contained OPCFR endorsements which provided coverage for damages caused by an unidentified and/or uninsured motor vehicle.
[14] When Shanfield reviewed her SABS file he noted the following:
• Twenty-two months before she had retained him, she was provided with an Application for Accident Benefits, as well as a letter describing the benefits available to her, from their insurance adjustor, Ms. Betty Schmidt (“Schmidt”).
• On June 25, 2004, she submitted a completed application for expenses as well as a claim for Income Replacement Benefits (“IRBs”) to Guarantee.
• On July 6, 2004, she submitted an employer’s confirmation form to the insurer.
[15] On July 8, 2004, she was advised by Guarantee that she was not eligible to receive IRBs.
[16] Shanfield asserts that he actively pursued certain SABs for the plaintiffs, with their knowledge. This included obtaining visitors’ expenses in 2008 to enable Zhang’s parents to come from China; he arranged for funding so that she could be assessed by a psychologist, Dr. Lau, in Toronto, including transportation expenses to enable her to travel there; similarly, he arranged for the funding of fees to enable her to undergo psychotherapy treatments with Dr. Kuo.
[17] A Settlement Conference was held before Master Pope on July 2, 2008, at which time Guarantee produced video surveillance which showed that Zhang worked four days a week at the convenience store owned by her husband. This, Shanfield says, directly contradicted the evidence that Zhang had provided to him up to that point including her examination for discovery when she testified that she was unable to work as a result of her injuries. Furthermore, she told Dr. Kiss, the neuropsychologist who had assessed her for the purposes of an independent medical report, that she was not working. He concluded that she overstated her symptoms and her stated deficits were not consistent with her presentation to him.
[18] With the disclosure of this information for the first time, the Master advised the plaintiffs to forego any ideas of a “million-dollar settlement” and she recommended they should accept any offer in excess of $250,000 plus interest and costs.
[19] Thereafter Shanfield advised her that this disclosure would have a negative impact on her credibility which might, in turn, compromise the quantum of any tort recovery. Because this upset her, Shanfield says their solicitor-client relationship became strained.
[20] He contacted the plaintiffs on December 2, 2008, to advise them that he had received a settlement proposal from Guarantee of $200,000, including pecuniary and non-pecuniary general damages, pre-judgment interest and costs.
[21] He advised the plaintiffs that if they wished to accept the offer, he would be prepared to complete the necessary paperwork but if they did not wish to do so he would commence a proceeding to remove himself as solicitor of record. Furthermore, if they were to proceed to settle, he would require that they seek independent legal advice.
[22] Thereafter on January 12, 2009, he was served with a Notice of Change of Solicitors from Mr. Andrew Murray (“Murray”) of the Lerners LLP in London. Several months later, on or about August 11, 2009, Murray advised him that he had been able to settle the action for the plaintiffs for $245,000, all inclusive, from which Shanfield’s fee account of $50,000 plus GST and disbursements would be paid.
[23] In his Factum Shanfield identifies the four areas of issue between the parties:
i) His alleged failure to advise Xing of his entitlement to certain SABs and to pursue those on his behalf;
ii) Shanfield’s alleged failure to advise Zhang of her entitlement to certain SABs and to pursue those benefits on her behalf;
iii) Whether there is a genuine issue requiring a trial with respect to Xing’s potential tort recovery; and
iv) Whether there is a genuine issue requiring a trial with respect to Zhang’s potential recovery in tort.
B. DISCUSSION
[24] He says that the plaintiffs have not challenged the evidence in his affidavit which states that Xing did not sign the retainer agreement with him and that the only action undertaken on his behalf was to pursue an FLA claim. Furthermore, the plaintiffs have proffered no evidence to suggest that Xing had any SABs entitlement owing to him.
[25] Shanfield says that the plaintiffs have proffered no evidence to identify what SABs or what quantum of any SABs are being claimed by Zhang. Furthermore, he says that they have provided no evidence, either by way of affidavit or in their cross-examinations, to refute certain key points of evidence contained in his affidavit, being;
i) Ms. Zhang was not entitled to income replacement benefits (“IRBs”) since she was not employed for a sufficient period of time prior to her accident;
ii) Her net business income in the year prior to the motor vehicle accident was declared by her to be $2.00 and as such she would not have been entitled to minimal or no accident benefits for income replacement;
iii) Guarantee initially took the position that her tort claim should be reduced for a failure to claim the available SABs.
iv) Lastly, the plaintiffs have led no evidence to show that there is a genuine issue requiring a trial relating to their claim that their settlement was reduced by reason of a failure to seek available SABs benefits.
[26] Shanfield also denies their allegation that he concealed the SABs information and that he never told them that the tests and treatments he arranged for Zhang with Drs. Lau and Kuo were part of her SABs benefit entitlements. He also denies their allegation that it was not until after the July 2, 2008 settlement conference with the Master that they received any information about potential SABS. As noted earlier, he had arranged for payment by their insurer of the expenses for Zhang’s parents to travel from China to be here for her. All of this, he says, was obviously known by them. Furthermore, it was admitted by the plaintiffs during their cross-examinations that Zhang signed the statutory forms as she was required to do, in order to obtain the benefits referred to. Additionally, they admitted receiving several letters from their SAB insurer which were sent directly to Zhang all of which confirmed that she was in fact receiving the benefits referred to, pursuant to the SABs schedules.
[27] Evidence of the continuing efforts by Shanfield to pursue SABs entitlements on Zhang’s behalf is found in the letters from Schmidt of July 10 and August 16, 2007, to Zhang which confirmed her coverage and the payment of various therapies which were then being pursued on her behalf by Shanfield.
[28] Therefore, the correspondence which passed between the adjustor Schmidt and Zhang, her execution of various applications for assessments and benefits, the correspondence between Shanfield and his client, and the ultimate receipt by her of the monies to pay for the various assessments being pursued, when taken together, confirm an active and ongoing pursuit by Shanfield on her SABs entitlements and to accuse him otherwise is both malicious and unfair.
[...continues exactly as in the original decision...]
Original signed by “Richard C. Gates”
Richard C. Gates
Justice
Released: January 25, 2013
COURT FILE NO.: CV-10-14951
DATE: 20130125
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
YULI ZHANG and CHANGCHUN XING
Plaintiffs
– and –
STEPHEN SHANFIELD
Defendant
REASONS FOR JUDGMENT
Gates J.
Released: January 25, 2013