2013 ONSC 6911

Mikhail et al. v. Howie et al.

07-CV-327996PD 2

Motion Heard by Master Abrams: October 30/13

In attendance: Michael Mikhail, for himself and his mother, F. Mary Mikhail

H.J. Hickman, for the defendants and for Thomson, Rogers

Endorsement of Master Abrams

[1] The plaintiffs seek an Order granting them leave to amend the statement of claim to add the law firm, Thomson, Rogers, as a party defendant. Their motion, in this regard, is opposed on the basis that any potential claim as against the firm is statute barred. I agree that it is and, as such, decline to permit the plaintiffs this manner of relief.

[2] Why do I say this? The plaintiffs’ claims were asserted by way of statement of claim issued in February 2007. The statement of claim named two lawyers as defendants, Messrs. Kenneth E. Howie and David R. Tenszen. On June 13/07, the plaintiffs delivered a Fresh as Amended Statement of Claim which purported to add a new defendant: “Thomson Rogers Barristers & Solicitors”.

[3] In mid-August/2007, counsel for the defendants herein and counsel for Thomson, Rogers on this motion, Mr. Hickman, wrote to then-counsel for the plaintiffs: Mr. Glenroy Bastien. He advised that the plaintiffs’ statement of claim could not be amended “over the counter”. He confirmed his agreement with Mr. Bastien (which agreement was never negated by Mr. Bastien) that “…should [he] choose to do so in the future, [Mr. Bastien, on behalf of the plaintiffs, would] bring a proper motion on notice to add Thomson, Rogers as a defendant” (Exhibit “16” to the July 30/13 affidavit of Michael Mikhail). The claims against Thomson, Rogers thus were not defended; and, until this motion was brought (i.e. in 2013), no steps were taken by or on behalf of the plaintiffs to move to add Thomson, Rogers as a defendant herein.

[4] The plaintiffs were aware that they had retained the law firm of Thomson, Rogers with respect to the underlying litigation that underpins this action. The settlement of that litigation (which is here at issue) took place in March 2001, some 12 years ago (with the limitation period, even if construed in the manner most favourable to the plaintiffs, long ago having elapsed). And, while efforts (albeit imperfect) were made in 2007 to add Thomson, Rogers as a defendant, the plaintiffs were advised in 2007 that a motion would need to be brought (r. 29.01(c)). No motion was brought in 2007, 2008, 2009, 2010, 2011 or 2012. It was only after Mr. Bastien was off the record for the plaintiffs (he was on the record until October 2012) that this motion was brought. It could have been and should have been brought earlier.

[5] s. 21 of the Limitations Act, 2002 provides that a party cannot be added to an existing action if the limitation period against that party has already expired, except that the limitation period may be extended by the doctrine of discoverability (s. 5 of the Limitations Act, 2002). The plaintiffs’ cause of action against Thomson, Rogers (assuming, for the sake of argument that such cause of action exists) arose on the date that the plaintiffs knew or ought to have known that they had a potential cause of action against Thomson, Rogers. Relying on the date of settlement and considering the manner in which the original claim was drafted by the plaintiffs themselves, Mr. Hickman says that the plaintiffs knew or ought to have known that they had a potential cause of action against the law firm in March 2001 (or very shortly thereafter). I agree. And if there was any doubt as to how (from a procedural perspective) Thomson, Rogers might be added to the litigation, there was no doubt as at August 2007 when Mr. Hickman wrote his letter (Exhibit “16”, supra) to Mr. Bastien. This motion was not brought until the Summer of 2013, with fresh steps in the litigation having been taken by the plaintiffs after August 2007 and before the booking of this motion (which steps did not factor in any consideration of the addition of Thomson, Rogers).

[6] The plaintiffs did not act diligently in addressing the addition of Thomson, Rogers as a party defendant. And while I have made allowances for them because they are self-represented, they were not self-represented at the time that the notion of adding Thomson, Rogers to the litigation was first raised on their behalf. Indeed, Mr. Bastien was on the record for the plaintiffs for a number of years after it was made clear to him what needed to be done, if consideration was to be given to naming Thomson, Rogers as a party defendant. With the law of special circumstances being no more (Joseph v. Paramount Canada’s Wonderland (2008), 2008 ONCA 469, 90 O.R. (3d) 401 (C.A.)), Mr. Bastien’s failure to bring a motion to add Thomson, Rogers (whether intentional or accidental) is a matter for account between him and the plaintiffs. The limitation period herein, as it relates to Thomson, Rogers, cannot be extended by me.

[7] As for the request made to “re-examine for discovery” the non-party, Vance Cooper, it too is denied. Mr. Cooper has never been examined for discovery in these proceedings; and he is not a party to the proceedings. The plaintiffs’ reliance on RR. 39.01(1) and (2) is ill-founded in the circumstances.

[8] Mr. Cooper was cross-examined, by Mr. Bastien, on an affidavit sworn by him in response to a motion brought by the plaintiffs to have Laxton Glass LLP removed as counsel of record for the defendants. This motion was abandoned in June 2009, on consent and on terms (including the payment of costs by the plaintiffs to the defendants)--with no reservation of rights with respect to a further examination of Mr. Cooper. Again, if there is an issue with respect to the manner in which the issue of Mr. Cooper’s alleged conflict was settled, it is an issue as between the plaintiffs and their former lawyer.[^1]

[9] As for whether it is appropriate that the plaintiffs be granted leave to examine Mr. Cooper as a non-party pursuant to R. 31.10, on the record before me I say that it is not. The plaintiffs have not adduced any evidence to satisfy me that they have met or attempted to meet the requirements set out in R.31.10. In fact, and of note, the defendants themselves have not yet been examined for discovery.

[10] Recognizing that the plaintiffs are now self-represented and that the action is not ready to be tried, I am prepared to permit the parties to revisit the timetabling Order now in place. I am extending the discovery deadline to April 30/14—with examinations to be completed on dates agreed to by the parties (having regard to, among other things, counsel’s court schedule to which Mr. Hickman made reference on the return of this motion). Mediation is to be scheduled by year-end 2013—to take place by July 31/14. Undertakings are to be fulfilled by June 30/14. Discovery motions, if any, are to be argued by September 30/14. The set down date for this action—after which the action will be dismissed for delay, with costs, if not set down—is December 17/14.

[11] If the parties wish to supplement their costs outlines with brief written or oral submissions, they are to notify me (in writing) by November 19/13. If I hear nothing more from them, by then, I will rule on the materials already filed, without more.

November 6/13 _______________________________

[^1]: I note that I cannot make and, as such, have not made any finding as to the propriety of what Mr. Bastien, as counsel, did or didn’t do while acting for the plaintiffs. This is a matter for account as between him and his former clients.