SUPERIOR COURT OF JUSTICE - ONTARIO

RE: STUART LATTA, plaintiff

AND

JUSTIN SCOTT LINDEN, defendant

BEFORE: F. MYERS J.

COUNSEL: Alan Rachlin, for the moving party/defendant

Stuart Latta, in person

HEARD: March 3, 2014

ENDORSEMENT

[1] The plaintiff claims that on July 27, 2008, he suffered significant injury to his back as a result of a slip and fall. The accident occurred while the plaintiff was performing construction-related activities gratuitously for his in-laws in Bancroft, Ontario. The plaintiff says that he had knee surgery shortly afterward that was not related to this accident. After his surgery he started to have hip and leg pain. In October 2008, in assessing his leg pain, Mr. Latta’s doctor asked him whether he had hurt his back. It was then that Mr. Latta says that he first realized that his back pain may be from the slip and fall the prior summer.

[2] The plaintiff consulted the defendant, a lawyer, on October 28, 2010, just at or perhaps, just over two years from the date he says he discovered his cause of action against his in-laws. The plaintiff engaged the defendant to prevent the imminent expiry of the two year limitation period that would bar his ability to sue his in-laws for compensation as a result of his injuries. Mr. Latta was very clear before me today that for his money, he understood that “all he was getting was stopping the clock”. Proceeding on the basis most favourable to the plaintiff, for the purposes of this summary judgment motion, I am prepared to assume that the limitation period had not expired at the time that the plaintiff consulted the defendant.

[3] In paragraph 7 of his statement of claim the plaintiff pleads as follows:

In October 2010 Mr. Latta retained the defendant to commence an action against his in-laws for the slip and fall. In order to protect the limitation period, the defendant was to file a Notice of Action with the Superior Court of Justice by the end of October. Mr. Linden did so on October 28, 2010, and went on the record as Mr. Latta’s lawyer of record for that case.

[4] This statement of claim goes on to plead that Mr. Linden failed to file a statement of claim in the action against Mr. Latta’s in-laws within 30 days as required under the Rules of Civil Procedure or to serve the originating process within six months, also as required by the Rules. In paragraph 10 of his statement of claim the plaintiff pleads:

The plaintiff Stuart Latta has thus lost the opportunity to sue [his in-laws] due to the passing of the limitation period and two other important Rules-based deadlines.

[5] The defendant pleads that he was retained for the limited purpose of issuing a notice of action and that the plaintiff breached even the limited retainer by failing to pay a cash deposit as agreed. Although the plaintiff does not now recall doing so, he admits, in a formal Response to Request to Admit delivered by his former counsel, that he signed a handwritten retainer agreement in the following terms:

I Stuart Latta direct you to issue a Notice of Action against [the plaintiff’s in-laws] of Bancroft Ontario. I agree to provide you with a further $4,520 for your interim work. If you conclude that my case is not viable, you are instructed to discontinue the claim.

[6] The retainer agreement speaks of payment of a “further” amount because Mr. Latta paid Mr. Linden $480 cash at their initial meeting.

[7] Mr. Latta also admits that he did not provide any further written retainer or instructions to the defendant (including instructions to draft or file a statement of claim). It is also common ground that Mr. Latta never paid any further retainer to Mr. Linden despite his agreement to do so.

[8] On November 14, 2010, Mr. Linden advised that he had issued a notice of action as agreed and he told Mr. Latta that if he wishes “to proceed with a lawsuit you must file a statement of claim within 20 days of doing so”. Mr. Linden then indicated that he had not received the funds agreed to, he was unable to continue acting, and he would not be the plaintiff’s lawyer. Mr. Latta responded the next day asking Mr. Linden to reconsider and asserted that, “I will not give up - I will find someone and Win this”. Mr. Linden responded that day as follows:

Stuart, I cannot take on your case. Firstly, you missed what I think may well [sic] the limitation period. Secondly, you haven’t paid the retainer. You agreed to deliver funds and didn’t. You didn’t even call us to let us know. I’m sorry, but I can’t be of any help to you.

[9] Mr. Latta then advised that he was trying to find the promised money and that “it should be available this week”. He also inquired as to whether he had 20 business days or 20 calendar days in which to file a statement of claim. Mr. Linden responded that, “I’m sorry, but I can’t and won’t take on the case”. He also advised that the relevant date was 20 days (as opposed to business days) from the filing of the notice of action. (In fact, a plaintiff has thirty days to file a statement of claim after issuing a notice of action (see Rule 14.03(3)), but nothing turns on that disparity).

[10] It is the plaintiff’s assertion that despite his specific discussion with Mr. Linden about the time available for filing a statement of claim after the issuance of the notice of action, he did not know that Mr. Linden had issued a notice of action on his behalf. He says that he retained a second lawyer who started a new lawsuit against the plaintiff’s in-laws some time later. In mid-2011, the plaintiff says his third lawyer obtained files from Mr. Linden in which they saw the initial notice of action and discontinued the second lawsuit. It appears that the first lawsuit commenced by Mr. Linden remains outstanding and that Mr. Linden remains lawyer of record, even at this late date.

[11] Mr. Latta also seeks to amend his statement of claim. He has not brought a formal motion to do so although the defendant’s counsel has had the draft amended pleading for some time. The defendant’s counsel sought to cross-examine Mr. Latta concerning the proposed amendments, among other things, but Mr. Latta walked out of the examination under what appears to have been a misapprehension concerning the proper scope of cross-examination. In light of the disposition that I am making of this motion, nothing turns on this and I will treat Mr. Latta’s amendments as if they had been made for the purposes of today. If my proposed outcome were different, then I might have considered whether to allow amendments at this late date.

[12] Mr. Linden moves for summary judgment to dismiss the claim in full. He says that there is no genuine issue for trial on the issues raised by the plaintiff.

[13] The law is clear that a lawyer’s duty to his or her client, in contract or negligence, is defined by the scope of his or her retainer agreement with the client Central & Eastern Trust Co. v. Rafuse (1986), 31 D.L.R. (4th) 481 (S.C.C.) at 523. In this case, Mr. Linden was retained to issue a notice of action to preserve the limitation period. He did so. Mr. Latta says that Mr. Linden just paused the limitation for 20 (actually 30) days. As Mr. Rachlin points out, however, in every lawsuit, as soon as one time limit is met, another one comes into play. Had the limitation period not already run, then Mr. Linden’s actions tolled it as agreed.

[14] It is apparent from the terms of the retainer agreement that further investigation was to take place prior to a statement of claim being drafted or filed as the lawyer was given express authority to discontinue the notice of action if he did not think the case had merit. That is, Mr. Linden had not agreed to draft a statement of claim and in Court today, Mr. Latta forthrightly conceded this to be the case to his knowledge at the time. It is not clear if Mr. Linden decided to end his involvement because Mr. Latta failed to pay fees as promised or if Mr. Linden determined that the case was not “viable”. There is some evidence of both bases being put forward in contemporaneous emails from Mr. Linden. He told Mr. Latta that he would not do more and advised him on the need for a statement of claim to be drafted and filed in short order. Rather than paying Mr. Linden and trying to induce him to agree to accept instructions to draft a statement of claim, the plaintiff expressed confidence in his case and said that he would look elsewhere for a lawyer - which he ultimately did do.

[15] As set out above, the plaintiff claims that Mr. Linden’s failure to unilaterally draft and file a statement of claim and then serve originating process on the plaintiff’s in-laws, deprived him of his entitlement to compensation. I do not understand how this could be so. If the limitation period expired prior to Mr. Linden being retained, then Mr. Latta was already too late to sue his in-laws. In that case, nothing done or not done by Mr. Linden could have affected the plaintiff’s ability to sue in any event. The question is whether, having started a case within the limitation period, Mr. Linden had a duty to draft, file and serve a statement of claim, and whether his failure to do so caused the plaintiff to lose his rights to sue his in-laws.

[16] The plaintiff asserts that by issuing a notice of action, the defendant became his lawyer of record and that Mr. Linden was not free to stop acting even upon the plaintiff’s failure to pay. He asserts that as lawyer of record, Mr. Linden was required to draft and file a statement of claim and deliver pleadings without being paid and, presumably, without instructions. Rule 15.05 of the Rules of Civil Procedure requires a lawyer to continue to act as lawyer of record until removed by the client or by order of the court. Mr. Rachlin says that Rule 15 does not come into play until a statement of claim is delivered. I do not see a rule that says specifically when a lawyer becomes lawyer of record. Mr. Linden properly identified himself as the lawyer for the plaintiff on the notice of action in accordance with Rule 4.02(3)(f). I am prepared to assume that this is sufficient to qualify Mr. Linden as lawyer of record for the purposes of Rule 15. If this is so, then, Mr. Linden remains as lawyer of record as noted above. As lawyer of record, Mr. Linden can be served with process on behalf of Mr. Latta and he owes duties to the court. See Duca Community Credit Union Ltd. v. Tay (1995), 26 O.R. (3d) 172 (Gen. Div.). But I fail to see how this helps the plaintiff advance a claim for breach of contract or negligence against Mr. Linden. The plaintiff admits that Mr. Linden issued a notice of action as he was retained to do. His retainer did not include drafting and filing a statement of claim and he could not do so unilaterally. While Mr. Linden did not discontinue the action that he had commenced, this is potentially to the benefit of the plaintiff and has caused him no harm.

[17] I do not understand the Rules of Civil Procedure to require a lawyer to take steps on behalf of a client for which the lawyer was not retained and for which he has not received instructions or payment. It is true that a lawyer of record may have to appear in court even if a client does not wish him or her to do so. That, however, is a matter of professional responsibility concerning the relationship between the court and the lawyer in his or her capacity as an officer of the court. In this case, on the admitted facts, the defendant fulfilled the contract and committed no breach of duty owed to the plaintiff that could have caused the plaintiff harm. Mr. Linden issued a notice of action and then determined not to proceed further either because he was not being paid as promised, because he thought that the action was not viable, or both. In the circumstances, even assuming that the limitation period had not run out by the time that Mr. Linden was retained, Mr. Latta cannot show that Mr. Linden was required to do more or that his failure to do more caused Mr. Latta to lose compensation to which he was entitled. The action does not raise a genuine issue for trial.

[18] Mr. Latta asserts in his proposed amendments to his statement of claim that Mr. Linden delayed in returning Mr. Latta’s files and especially the issued notice of action and that this too is grounds for a claim. Mr. Latta focussed on the notice of action and said that if he had the document in a timelier manner, he could have done something. But, he cannot say what he would have done or how a lawyer approaching the matter a year or two later would have been helped by having the actual notice of action. As one would expect, the notice of action says nearly nothing. Mr. Latta knew of its existence. Mr. Latta’s second lawyer commenced a subsequent action apparently without the benefit of the file or the notice of action. I note that in cross-examination, Mr. Latta’s third lawyer, Mr. Tofilovsky, testified that he received the notice of action from Mr. Latta himself in any event. There is no evidence of any prejudice to Mr. Latta from the alleged dilatory disclosure of the actual notice of action by Mr. Linden. Nor do I see how, on the evidence before me, if the late amendments were allowed, the issues raised could amount to a serious issue to be tried in either contract or negligence.

[19] Finally, I note that the first action commenced by Mr. Linden appears to remain extant. It may be salvageable if Mr. Latta can make out the tests for late filing and service of originating process. It is not clear that he has lost whatever rights he may have had against his in-laws at the time of the commencement of the original action by Mr. Linden, although, as noted above, that is fortuitous and is not the basis for the outcome of this motion.

[20] In all, on the admitted facts, there is no genuine issue for trial on the plaintiff’s assertion of breach of contract or negligence against the defendant. The defendant did what he agreed to do and owed no duty to the plaintiff to do more in the circumstances. Neither has the plaintiff raised a triable issue as to whether anything done by the defendant in breach of his duties caused the plaintiff to lose his entitlement to compensation, such as it was. I, therefore, grant summary judgment to dismiss the claim.

[21] Mr. Rachlin has provided two costs outlines seeking, respectively, $8,996.67 on a partial indemnity basis for costs of this motion and a further $1,355.52 on a partial indemnity basis for the costs of the remaining elements of the action that are being dismissed by the outcome of this motion. I find that it was reasonable for Mr. Rachlin to cross-examine and allow the costs of those examinations if required under Rule 39.02(4)(b). Plus, the costs of the attendance before Himel J. on February 7, 2014 were reserved to today. That hearing was required to enable the cross-examinations to proceed. Costs of that day are included in the amounts sought by Mr. Rachlin and should follow today’s event. Mr. Latta was not able to make meaningful submissions on the two costs outlines. He did suggest that if he won the motion today, costs for the time and trouble of himself and his wife (if compensable) could amount to $10,000. I have looked at Mr. Rachlin’s costs outlines carefully and find the rates and times reasonable. I note in particular that the use of a formal Request to Admit process by Mr. Rachlin saved considerable time and money in this proceeding. Accordingly, the defendant is to have his costs against Mr. Latta in the both amounts sought as set out above.

[22] The action was previously discontinued on consent by all of the other plaintiffs who are still listed in the formal title of the proceedings. I make no orders against any of them.

[23] Mr. Rachlin should draft the necessary order to reflect the outcome of this motion and submit it to me for signature in care of Judges’ Administration at the Court House at 361 University Avenue, Toronto. I dispense with the usual requirements to obtain the plaintiff’s approval of the draft order as to form and content.

F.L. Myers J.

Date: March 3, 2014