ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV 09-394020
DATE: 20130301
BETWEEN
Syed Shah Barkatulla Hussaini
Plaintiff
– and –
Joel P. Freedman
Defendant
Mr. Hussaini, Acting in person
Kerri P. Knudsen, for Mr. Freedman
HEARD: January 30, 2013 in Toronto, ON
DECISION ON MOTION
Del Frate J.:
[1] Mr. Freedman seeks an order for summary judgment under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, dismissing Mr. Hussaini’s claim on the basis that there is no genuine issue requiring a trial.
Background
[2] Mr. Hussaini and his two brothers were involved in a motor vehicle accident on December 25, 1990. He retained a number of different law firms to act on his behalf throughout the 1990’s.
[3] On August 24, 2001, Mr. Hussaini retained Mr. Freedman to pursue his claims for accident benefits and tort damages.
[4] The trial began before Greer J. in the Ontario Court of Justice on September 21, 2004 and was to be held jointly with two other actions brought by Mr. Hussaini’s brothers arising from the same motor vehicle accident.
[5] Prior to the commencement of Mr. Hussaini’s trial, Mr. Freedman became aware of some credibility issues which would have adversely affected Mr. Hussaini.
[6] Negotiations ensued between Mr. Freedman and opposing counsel and as a result, a settlement was reached on Mr. Hussaini’s claims for the tort action and the accident benefit action for the total amount of $10,000.
[7] Following the discovery of the credibility issues, Mr. Freedman decided that he could no longer represent Mr. Hussaini and on October 14, 2004, he brought a motion before Wilkins J. to be removed as counsel for Mr. Hussaini in both actions.
[8] At 10 a.m. on October 14, 2004, Mr. Hussaini provided instructions to Mr. Freedman to finalize the matters for the all-inclusive amount of $10,000. The instructions included the following:
I would like Mr. Freedman to ask for more money but if he cannot get more, I will accept $10,000.
[9] At 10:20 a.m., Mr. Hussaini signed further instructions indicating that he had agreed to a settlement of $10,000.
[10] Later in the day, Mr. Freedman appeared before Greer J. and advised her that a settlement had been reached and that he had been removed as counsel for Mr. Hussaini, but was willing to assist with the completion of the settlement. Accordingly, an order was issued dismissing Mr. Hussaini’s tort and accident benefit actions.
[11] On October 19, 2004, Mr. Hussaini appeared before Greer J. and attempted to resile from the settlement.
[12] Greer J., who was still involved in the remaining portions of the joint trial, advised Mr. Hussaini that she would not hear from him.
[13] On January 18, 2007, Mr. Hussaini served a notice of motion for an order setting aside the dismissal order of Greer J. dated October 14, 2004.
[14] Mr. Hussaini retained the firm of Greenberg Levine LLP to prepare the notice of motion and swear supporting affidavits. One affidavit makes specific reference to the circumstances on which this claim is now based.
[15] The notice of motion was amended on February 20, 2007, and included allegations that Mr. Freedman had been operating without Mr. Hussaini’s instructions and that Mr. Hussaini had been coerced and threatened by Mr. Freedman.
[16] The motion was dismissed by O’Marra J. on September 30, 2008, on the basis that Mr. Hussaini had signed the settlement agreement.
[17] On November 6, 2009, Mr. Hussaini attended at Mr. Freedman’s office. What took place during that meeting is unclear; Mr. Hussaini claims that Mr. Freedman made admissions to the effect that he had ruined Mr. Hussaini’s case, while Mr. Freedman claims he only gave Mr. Hussaini his materials and made no such statements.
[18] The Ontario Court of Appeal dismissed Mr. Hussaini’s appeal on May 2, 2011, and leave to appeal to the Supreme Court of Canada was denied September 27, 2012.
Current Proceedings
[19] The statement of claim in this proceeding was issued on December 22, 2009 and an amended statement of claim was issued on December 21, 2010.
[20] In the December 22, 2009 statement of claim, Mr. Hussaini alleges wrongdoing against Mr. Freedman and also that he did not understand the agreement he signed.
[21] In the December 21, 2010 amended statement, Mr. Hussaini alleges breach of contract, breach of fiduciary duty, negligence and unjust enrichment.
[22] Mr. Freedman did not file a statement of defence within the prescribed timelines and accordingly Mr. Hussaini obtained default judgment. A motion to reopen the pleadings was allowed and subsequent appeals of the order setting aside the default judgment by Mr. Hussaini were dismissed.
Position of Mr. Freedman
[23] Mr. Freedman submits that there is no genuine issue for trial. He argues that the limitation period is long expired, as Mr. Hussaini knew or ought to have known about the alleged cause of action on at least five separate occasions prior to the date he claims to have discovered it:
i) October 14, 2004, when the matter was settled and he executed the direction to resolve the case;
ii) October 19, 2004, when he attended before Greer J. to attempt to resile the agreement and the order;
iii) January 18, 2007, when he filed a notice of motion seeking to set aside the orders of Greer J.;
iv) February 20, 2007, when he filed the amended notice of motion alleging no consent and/or instructions in having the action dismissed;
v) September 20, 2007, when he filed a second affidavit alleging coercion, stating that he had never read the materials, and claiming that it had been his intention to set aside the dismissal orders for quite some time.
[24] He disputes Mr. Hussaini’s claims that the running of the limitation period was either delayed or suspended, on the basis that Mr. Hussaini has not substantiated his claims with any evidence.
Position of Mr. Hussaini
[25] Mr. Hussaini denies Mr. Freedman’s version of events, and alleges that he never saw or signed the instructions and/or settlement agreement. In the alternative, he alleges that even if he did sign those documents, he did so under duress and at a time that he was incapable of comprehending what he was being asked to sign. He alleges that he was under severe stress and taking considerable medication at that time and since then. He claims to have a number of physical and mental disabilities which, combined with his limited income, prevented him from seeking proper advice and taking the appropriate steps.
[26] Additionally, Mr. Hussaini submits that he only discovered that he had a cause of action on November 6, 2009 when he attended at Mr. Freedman’s office. Mr. Hussaini alleges that during the course of this visit, Mr. Freedman apologized and made a number of statements taking responsibility for Mr. Freedman’s losses, including an admission that he, Mr. Freedman, had “put [Mr. Hussaini’s] case into the sink.” This, in Mr. Hussaini’s view, was an admission by Mr. Freedman that he had acted wrongfully, unethically and in breach of his fiduciary duty. Accordingly, he argues, the limitation period had not expired when he filed his statement of claim on December 22, 2009.
[27] Mr. Hussaini repeatedly emphasized his belief that he had not received any services of worth in exchange for the $53,000 in fees he paid to Mr. Freedman.
Test for Rule 20 summary judgement
20.01(3) a defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim. R.R.O. 1990, Reg. 194, r. 20.01 (3).
[28] The amended rules permit judges to make evidentiary findings from the documentation filed. See Cuthbert v. T.D. Canada Trust [2010] O.N.S.C. 830 and Canadian Imperial Bank of Commerce v. Mitchell (2010) CarswellOnt 2137.
[29] In the case of Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, the Ontario Court of Appeal laid out the “full appreciation test” for motions judges dealing with summary judgments.
[30] During a motion for summary judgment, the motion judge:
[i]n deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: 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? (at para. 50)
[31] The Court also described the full appreciation test as follows, at para. 55:
Thus, in deciding whether to use the powers in rule 20.04(2.1), the motion judge must consider if this is a case where meeting the full appreciation test requires an opportunity to hear and observe witnesses, to have the evidence presented by way of a trial narrative, and to experience the fact-finding process first-hand. Unless full appreciation of the evidence and issues that is required to make dispositive findings is attainable on the motion record – as may be supplemented by the presentation of oral evidence under rule 20.04(2.2) – the judge cannot be “satisfied” that the issues are appropriately resolved on a motion for summary judgment.
[32] Cases amenable to summary judgment include those which are document-driven, with limited witnesses, require a discrete number of factual findings, and where credibility assessments are not of central importance.
[33] As well, pursuant to rule 20.02(2), the onus is on Mr. Hussaini to show that there is a genuine issue for trial.
Limitation period
[34] Pursuant to section 4 of the Limitations Act, 2002, S.O. 2002, Chapter 24, Schedule B, the basis limitation period for the commencement of an action is as follows:
- Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
[35] Section 5 of the Act deals with the suspension or delay of the commencement of a limitation period as follows:
Discovery
5.1 A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have know of the matters referred to in clause (a).
Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.
[36] Section 7 states:
Incapable persons
7.(1) The limitation period established by Section 4 does not run during any time in which the person with the claim,
(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and
(b) is not represented by a litigation guardian in relation to the claim.
Presumption
(2) A person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved.
Discussion
[37] On the basis of my analysis as informed by Combined Air, I am confident that this is a case where I am able to reach a full appreciation of the evidence and issues as required to make findings on a motion for summary judgment.
[38] There is no doubt that the affidavits of Mr. Hussaini and those of Mr. Freedman are contradictory. Although ordinarily such contradictions would cause concern on a motion for summary judgement, I do not find that to be the case in this fact situation.
[39] I find that none of Mr. Hussaini’s factual allegations are supported by any evidence.
[40] For example, Mr. Hussaini alleges that he was not present when the direction to finalize the matter was executed and that Mr. Freedman forged Mr. Hussaini’s signature. Mr. Hussaini presented no objective evidence whatsoever to support this assertion.
[41] Another example is the allegation that his health issues prevented him from understanding what was transpiring on October 14, 2004 and subsequently. Again, there is no medical evidence to substantiate Mr. Hussaini’s contention that his alleged disabilities prevented him from appreciating what was happening.
[42] In fact, Mr. Hussaini’s actions from October 2004 until the present would indicate that he was capable of preparing documentation for numerous court appearances including appearances before the Superior Court, the Divisional Court, the Ontario Court of Appeal and filing an application for leave to the Supreme Court of Canada.
[43] Further, I find that on review, Mr. Hussaini’s affidavits are rife with contradictions and I am left with the impression that he is tailoring his evidence to the situation that he is facing.
[44] I accept the version of events as outlined by Mr. Freedman.
[45] Mr. Freedman submits that Mr. Hussaini knew or ought to have known of the cause of action on any or all of five prior occasions as outlined earlier. In my view, any of these dates would have, or should have triggered the running of the clock on the limitation period.
[46] With respect to discoverability, I find that the affidavits executed by Mr. Levine in 2007 disclose a cause of action. Furthermore, Mr. Levine provided an affidavit of his own, swearing that it is the practice at his firm to ensure that all affiants have read and understood their affidavits prior to swearing. I accept this.
[47] I do not accept that Mr. Hussaini’s first realization of a possible claim against Mr. Freedman would have arisen on November 5, 2009 when the alleged incident at Mr. Freedman’s office took place. That allegation is firmly denied by Mr. Freedman, whose evidence I accept. In my view, that statement was fabricated by Mr. Hussaini upon realizing that his chances of succeeding were slim.
[48] Mr. Hussaini alleges that the limitation period was suspended pursuant to section 7 of the Limitation Act, since he was physically and psychologically impaired in the aftermath of his car accident.
[49] Section 7(2) places the onus on Mr. Hussaini to show that he was incapable of commencing the proceedings.
[50] I repeat what I stated earlier that Mr. Hussaini’s actions since October 2004 until the present do not support his contention. He was capable of preparing all the necessary court documents and of arguing his case personally at various levels of the court system.
[51] No evidence was presented to support Mr. Hussaini’s claim that he was incapable. Although information he provided, such as OHIP records, indicates some potential physical impairment, there is no medical evidence or opinion presented to substantiate that Mr. Hussaini’s medical condition would have prevented him from appreciating that he had an alleged cause of action.
Conclusion
[52] In my view, Mr. Freedman has succeeded in proving that there is no genuine issue requiring a trial and accordingly, Mr. Hussaini’s action is dismissed.
[53] Should it be necessary to address the issue of costs, arrangements can be made through the trial co-ordinator’s office in Sudbury within thirty days.
Mr. Justice Robert G.S. Del Frate
Released: March 1, 2013
COURT FILE NO.: CV 09-394020
DATE: 20130301
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Syed Shah Barkatulla Hussaini
Plaintiff
– and –
Joel P. Freedman
Defendant
DECISION ON MOTION
Del Frate J.
Released: March 1, 2013