ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-405757

DATE: 20140414

BETWEEN:

ELEANOR DENISE BAINES
Plaintiff

– and –

LINETT & TIMMIS BARRISTERS & SOLICITORS
Defendant

Eleanor Denise Baines, Self-Represented Plaintiff

Bruce Hutchinson, for the Defendant

HEARD: March 27, 2014

PERELL, J.

REASONS FOR JUDGMENT

A. INTRODUCTION

[1] In this action, the Plaintiff, Eleanor Denise Baines, sues her former law firm, Linnet & Timmis Barristers & Solicitors, for professional negligence. Ms. Baines alleges that the law firm was negligent with respect to the services the lawyers provided acting on her behalf in the prosecution of a motor vehicle personal injury claim.

[2] Ms. Baines hired the law firm in 2000, and she fired them in April 2008 after an unsuccessful mediation of her claim. Three years later, as a self-represented litigant, Ms. Baines’ action was tried by a judge and jury, and she had a pyrrhic victory or more accurately a major defeat. The jury granted her a verdict and damages of $2,000 for non-pecuniary loss and $2,000 for past income loss; however, on the defendant’s motion, Justice Moore concluded that Ms. Baines’ injury did not meet the threshold under the Insurance Act,[^1] and he dismissed her claim for non-pecuniary loss and reduced her pecuniary loss claim to zero, because the $2,000 jury award was less than the non-fault benefits she had already received.[^2]

[3] Her appeal to the Divisional Court was dismissed.[^3]

[4] In her solicitor’s negligence action, Ms. Baines blames the lawyers for the poor result of her trial.

[5] Linett & Timmis now bring a motion for summary judgment to have Ms. Baines’ action dismissed. The law firm submits that Ms. Baines is simply blaming her former lawyers for her own lack of success three years after their retainer was terminated. They submit that there is no genuine issue for trial and that Ms. Baines’ claim cannot succeed. Further, the law firm submits that to the extent that a portion of Ms. Baines’ claim relates to repayment of legal fees, there is no genuine issue for trial, because this claim is res judicata as determined by Order of Justice Code dated July 29, 2010. As will be seen below, Justice Code’s Order recognizes that the fees claim was settled by the parties.

[6] As I shall explain below, I agree with the submissions of the law firm that there are no genuine issues for trial. I, therefore, grant summary judgment and dismiss Ms. Baines’ action.

B. FACTUAL AND PROCEDURAL BACKGROUND

[7] Ms. Baines was born in 1956, and she is a single mother with an adult daughter and grandchildren. In 1998, at the age of 42, she enrolled at York University as a full-time student with the hope of becoming a teacher.

[8] On January 26, 2000, while at the university driving her vehicle in a parking lot, it was struck on the driver’s side by a vehicle driven by Navdeep Singh Hehar and owned by Manmohan Singh Hehar. Ms. Baines suffered a closed head injury, but she did not require medical treatment. She did, however, suffer from the accident, but the extent of her injuries and whether they were debilitating became an issue in her subsequent lawsuits.

[9] On May 3, 2000, Ms. Baines retained Linett & Timmis to handle her no-fault accident benefits and her tort claim against the Hehars.

[10] There is a contested issue about the nature of Linett & Timmis’ retainer. Ms. Baines says that she understood that it was a contingent fee retainer. The truth of this understanding is denied by Linett & Timmis, and a contingent fee arrangement is not confirmed by the written retainer agreement. It, however, is not necessary to decide the issue about the nature of the retainer, because ultimately the summary judgment motion will turn on whether Ms. Baines can prove damages.

[11] What is undisputed is that Ms. Baines and Linett & Timmis understood that for Ms. Baines’ claims to succeed she had to prove that she had suffered a head injury and she also needed to establish that her injuries qualified her for recovery under the Insurance Act.

[12] On January 16, 2002, Ms. Baines commenced an action against the Hehars.

[13] Dr. Mamelak was retained to provide a medical opinion. He reported that a SPECT scan revealed a focal profusion deficient in her left orbital frontal lobe. Dr. Mamelak’s reliance on a SPECT scan, however, would prove problematic as Ms. Baines was to learn later that the medical community had not accepted these scans as a means to diagnose a mild closed head injury.

[14] In July 2002, the Hehars delivered their Statement of Defence.

[15] In the fall of 2002, the no-fault insurer stopped payment of income replacement benefits, and on December 23, 2002, Ms. Baines commenced an action against Ing Halifax Insurance Company for payment of benefits.

[16] In June 6, 2003, Ing Halifax Insurance delivered its Statement of Defence.

[17] On February 15, 2005, Ms. Baines was examined by Dr. Ogilvie-Harris for an orthopaedic consultation. Dr. Ogilvie-Harris concluded that Ms. Baines had suffered a permanent and serious impairment of important bodily functions from a chronic pain syndrome that interfered with her activities of normal living and her interactions with colleagues.

[18] On November 30, 2005, Ms. Baines was examined for a defence medical by Dr. Monte Bail, a psychiatrist. His report was that she was misrepresenting her injuries and that she had not been suffering from any permanent or serious impairment.

[19] Examinations for discovery took place in 2005.

[20] On March 22, 2006, Ms. Baines was examined for a defence medical by Dr. Bruce Steward, a neurologist. His report indicated that she might be suffering from psychiatric problems but that there were no neurological problems.

[21] On April 26, 2007, Ms. Baines was examined for orthopaedic injuries for a defence medical by Dr. Michael Ford. His report indicated that there was no objective evidence that she had impairments or pathologies that would preclude a resumption of her educational and employment goals.

[22] On May 16, 2007, Ms. Baines was examined for a defence medical by Dr. Adrian Upton. His opinion was that she had not suffered any significant impairment as a result of her car accident.

[23] On July 18, 2007, Ms. Baines was examined for a defence medical by Dr. Michael Ross, an occupational psychiatrist. His report concluded that she did not sustain any serious or permanent mental or psychological injury as a result of the car accident.

[24] On February 25, 2008, Marc Linett, Kathleen Timmis, and Guy Rasquin, all of Linett & Timmis, attended a mediation of both the accident benefits and the tort actions. Ms. Baines attended and was accompanied by her brother. At the end of the mediation, the accident benefits insurer offered $20,000, all inclusive and the tort insurer offered $50,000 plus costs. Ms. Baines rejected the settlement offers.

[25] On April 10, 2008, Ms. Baines delivered a Notice of Intention to Act in Person and terminated Linett & Timmis’ retainer.

[26] Following the termination of the retainer, Linett & Timmis rendered an account dated May 2, 2008 for $42,756.28. Of this sum, $14,406.28 was for disbursements, $1,350 was for GST on fees, and the fee was $27,000. The balance due on the account, after a credit for monies held in trust, was $39,995.78.

[27] After rendering the account, Linett & Timmis moved for a charging order, which was granted by Justice Archibald on May 21, 2008. Terms 1, 3, 6, 7 and 8 of the Order stated:

1. THIS COURT ORDERS THAT the solicitors, Linett & Timmis, are entitled to and are granted a first charge, in priority to all other persons, against all monies due and owing by the Defendant to the Plaintiff which charge shall be in the sum of $39,995.78 plus accrued interest or such other outstanding amount as may be found due and owing to the firm of Linett & Timmis following assessment of their account dated May 2, 2008.

2. THIS COURT FURTHER ORDERS that the Plaintiff pay forwith to the firm of Linett & Timmis, costs of this motion, fixed in the amount of $550 respective disbursements.

3. Upon the Plaintiff retaining new solicitors the law firm of Linett & Timmis shall turn over their file to the Plaintiff’s new solicitors.

4. The account of Linett & Timmis shall be assessed either prior to or after the conclusion of the herein action.

5. The original timetable to file the trial record in action No. 06-CV-323766PD2 is extended to July 15, 2008.

[28] Ms. Baines sought leave to appeal, and almost a year went by.

[29] On March 31, 2009, there was a pre-trial hearing. Justice Pollak ordered that if a replacement lawyer was not found by September 10, 2009, that Ms. Baines must represent herself at the trial scheduled for May 2010.

[30] On April 9, 2009, Justice Low dismissed the motion for leave to appeal from the Order of Justice Archibald.[^4] Justice Low awarded Linett & Timmis costs of $800 payable from the charging order.

[31] Sometime in 2010, Ms. Baines settled her accident benefits claim for $58,750.

[32] Meanwhile, Ms. Baines was unable to retain a new lawyer, she believes because Linett & Timmis were badmouthing her case and her as a client. Her belief is not evidence, and her inability to hire a replacement lawyer cannot be attributed to the law firm but to the reality that other lawyers would be leery of taking on such a very difficult case from a possibly difficult client on a contingency fee basis. Meanwhile, her file remained at Linett & Timmis pursuant to the Order of Justice Archibald, and she remained a self-represented litigant.

[33] After Ms. Baines remained unable to retain a lawyer, she requested her file from Linett & Timmis. After the request was refused, on March 22, 2010, Justice Grace ordered the files to be delivered to her. When the firm would not release the files without payment of photocopying charges of $250, on April 1, 2010, Justice Grace ordered the files to be released and he ordered that the photocopying be added to the firm’s account, which was to be assessed.

[34] In April 2010, the tort insurer offered to settle Ms. Baines’ claims for $100,000, all inclusive. She rejected this offer.

[35] In May 2010, Ms. Baines’ action against the Hehars was called to trial. Ms. Baines now had her file and had made some arrangements for expert witnesses. Justice Horkins was the trial judge. The jury trial, however, did not get very far, and after making an accommodation order, including the provision of a professional note taker, shorter hearing days, and a quiet room for Ms. Baines’ use, the trial was adjourned for ten months until March 2011.

[36] Before adjourning, Justice Horkins ruled that a medical report prepared by Dr. Diane Stoller for Ms. Baines was not admissible and she warned Ms. Baines that she should anticipate difficulties with respect to Dr. Mamelak’s proposed evidence.

[37] In her Reasons for Decision on the voir dire for an accommodation order,[^5] Justice Horkins stated at paragraphs 37-42:

37. The plaintiff and defence provided me with several medical reports. I do not propose to re-view all the medical evidence. None of the reports address the plaintiff's ability to represent herself at trial or the proposed accommodations in the Plan. Most of the medical reports that the plaintiff relies upon are inadmissible. It is clear from the defence reports that the issue of the alleged brain injury will be vigorously contested.

38. The plaintiff's medical evidence is dated and the only recent report is from Dr. Diane Stoler who practices in the United States. Pursuant to the Evidence Act, this report is not admissible at trial.

39. Dr. Mamelak is the plaintiff's psychiatrist. His most recent report is dated March 18, 2002. He relies on the results of SPECT scans to support his opinion that the plaintiff suffered a head injury. The reliability of the SPECT scan as a tool for diagnosing injury to the brain will be a significant issue during the trial. The defence challenges the extent of Dr. Mamelak's expertise, his reliance on the SPECT scans and argues that he is adversarial and lacks objectivity. Whether he will be allowed to testify and if so about what issues is a question for the trial judge to determine.

40. The plaintiff also relies on Dr. Ogilvie-Harris. He is an orthopaedic surgeon who examined the plaintiff on February 18, 2005 at the request of her lawyer. He concluded that the plaintiff suffered soft tissue injuries to the cervical and lumbar spine. There is nothing in this report that suggests the need for a support person.

41. The defence points to the numerous negative test results. For example, the MRI and CAT scans were normal. Dr. Upton, a neurologist retained by the defence, states that SPECT scans are not reliable and he describes the plaintiff's SPECT scan results as "bizarre". He sees no reason why the plaintiff should have any limitations in her ability to work, go to school or enjoy recreational activities.

42. In summary, the evidence does not support the need for a support person. The alleged injury that has triggered the accommodation request is vigorously contested and the presence of a support person may add credibility to the plaintiff's claim that she has suffered a head injury. In these circumstances, it would be prejudicial to the defence to have a support person in court assisting the plaintiff. In any event, the function of the support person covers tasks performed by a lawyer. A person with no legal training cannot be allowed to assume this role. For all of these reasons, I refuse the plaintiff's request to have a support person assist her during the trial.

[38] On June 28, 2010, Ms. Baines commenced her solicitor’s negligence action against Linett & Timmis.

[39] After the settlement of the accident benefits claim, Linett & Timmis brought a motion to vary the Charging Order, and on July 29, 2010, Justice Code made the following Order:

1. THIS COURT ORDER THAT the sum of $58,750 previously paid to the Accountant of the Superior Court of Justice of Ontario to the credit of the action bearing [Court File No.] 06-CV-323766PD2 be paid out by the Accountant of the Superior Court of Justice of Ontario as follows: (a) the sum of $32,959 to the law firm of Linett & Timmis and (b) the sum of $25,794 to Eleanor Baines.

2. THIS COURT FURTHER ORDERS THAT the law firm of Linett & Timmis shall pay the disbursement accounts owing from the monies payable to Linett & Timmis referred to in paragraph one herein forthwith and shall provide Eleanor Baines with documentation confirming that the medical experts have been paid.

3. THIS COURT FURTHER ORDERS THAT the Order for Assessment bearing Court File No. CV-10-00405283 for assessment of the account of Linett & Timmis is hereby dismissed without costs and the Assessment Office shall be so notified.

4. THIS COURT FURTHER ORDERS THAT the herein settlement resolves the fees dispute between Eleanor Baines and Linett & Timmis and that issue is now res judicata and is not to be raised in any other proceedings between the parties. This settlement does not relate to any issues of alleged solicitor’s negligence.

5. THIS COURT FURTHER ORDERS THAT the Accountant of the Superior Court of Justice shall expedite the above payments in light of the very short timeframe available for payment of the experts and compliance with the Order of Horkins, J. dated May 20, 2010.

[40] It shall be important to note that paragraph 4 of Justice Code’s Order reveals that subject to allegations of solicitor’s negligence, Ms. Baines agreed that she no longer had a dispute about the fees charged by Linett & Timmis.

[41] On August 3, 2010, Linett & Timmis delivered its Statement of Defence.

[42] During the 10 month hiatus after Justice Horkins adjourned the trial, Ms. Baines still could not retain a trial lawyer. She made her own preparations for the trial.

[43] The trial resumed with a new jury on March 31, 2011, this time with Justice Moore presiding.

[44] The trial lasted over 12 days. The jury heard the evidence of the two drivers. On consent, Ms. Baines filed medical reports from Dr. Ogilvie-Harris, the orthopaedic surgeon who had originally been engaged by Linett & Timmis, and from Dr. Kiss, a neuropsychologist, who had been engaged by Ms. Baines. She called Dr. Mamalak as an expert witness, but he was not qualified to testify about SPECT scans.

[45] In the result, the jury apportioned liability with 90% of the liability resting with Mr. Hehar and 10% with Ms. Baines. As noted in the introduction to these Reasons, the jury granted Ms. Baines a verdict and damages of $2,000 for non-pecuniary loss and $2,000 for past income loss; however, on the defendant’s motion, Justice Moore concluded that Ms. Baines’ injury did not meet the threshold under the Insurance Act, and he dismissed her claim for non-pecuniary loss and reduced her pecuniary loss claim to zero because the $2,000 jury award was less than the non-fault benefits she had already received.

[46] In his reasons for decision,[^6] Justice Moore stated at paragraphs 87-99, 105-107:

87. Upon the whole of the evidence I find that Ms. Baines sustained a concussion in the accident of January 2000. I accept that her concussive injury may have been serious enough to be medically considered as a grade one concussion. The natural course of recovery from such injury involves complete remission of symptoms within about three months. I cannot find that the evidence supports the plaintiff's contention that she suffered a more significant brain injury or that any of the ongoing complaints that she associates with brain injury can reasonably be associated with the concussion she did suffer.

88. Ms. Baines also suffered soft tissue injuries in this accident. I accept the medical evidence given by Dr. Ford and find that these physical injuries have resolved and are no longer the source of Ms. Baines’ ongoing complaints.

89. I do not accept the evidence of Dr. Ogilvie-Harris that Ms. Baines went on to develop the characteristic features of a chronic pain syndrome. First, whether Dr. Ogilvie-Harris is qualified to offer a diagnostic opinion on this matter is not clear from his report and is questioned by Dr. Ford. Second, I am not satisfied that Dr. Ogilvie-Harris was fair and reasonable in his evidence in accepting Ms. Baines' subjective complaints without question in the face of essentially normal physical exam results and findings of positive Waddell's signs, signs positive for distraction, simulation and overreaction. I prefer the evidence of Dr. Ford, evidence given in a thorough, concise and balanced fashion and that withstood close cross examination by Ms. Baines.

90. Although Dr. Ogilvie-Harris purported to opine that Ms. Baines' ongoing subjective complaints and any related limitations are permanent and serious, I reject that evidence. By so saying, Dr. Ogilvie-Harris stepped beyond his role as an expert witness and strayed into the domain of the trial judge. By parroting the language of the legislation and applying it to the plaintiff's case, the doctor appears to be intent on influencing me toward an outcome favourable to the plaintiff; that is advocacy and not the impartial, objective or helpful assistance the court expects from an expert.

91. Further, Dr. Ogilvie-Harris attempted to address the ultimate question. That is not acceptable and especially so since he undertook no forensic, thorough or objective analysis of the whole of the circumstances of the plaintiff's complaints in relation to the accident in question. Nor was he present to hear and see the evidence presented in this trial.

92. It is difficult to know whether the litany of any/all of the complaints of physical and emotional discomforts and limitations detailed in Ms. Baines' evidence are honestly felt; for the reasons given by Drs. Bail, Upton, Ogilvie-Harris and Ford, whose examination findings appear to cast doubt or raise red flags of concern regarding the accuracy and completeness of her subjective complaints and because of the inconsistencies within and between the descriptions of the plaintiff's complaints as detailed by witnesses at this trial.

93. It must be noted that Ms. Baines comported herself throughout this trial in a composed, respectful, dignified and reasonably efficient manner. Advocacy in a courtroom setting is a complicated art that challenges even trained and experienced lawyers. Nevertheless, Ms. Baines accomplished the presentation of her case very well. She demonstrated cognitive functioning at a high level. In this lengthy trial, Ms. Baines demonstrated none of the limitations of which she has complained during the many years since the accident.

94. My observations of Ms. Baines during this litigation mirror those recorded by Dr. Kiss, who wrote that Ms. Baines was alert, oriented and responsive during interviews and assessment. There was no evidence of somnolence, sedation, hesitancy or psychomotor slowing. She was socially appropriate and pleasant. She was able to produce fairly detailed accounts and spoke in a reasonably articulate manner. She did require repetition of questions and simplification of instructions at times. She was not overly prone to distraction or fatigue. There were no observed lapses of attention or indications of significant memory problems. Vision, hearing and comprehension of test instructions were sufficient for purposes of assessment.

95. The stamina, energy and abilities demonstrated in the course of this litigation, the fact that Ms. Baines is actively pursuing three other cases as well and the red flags referred to by the medical experts are very troubling and cast a long and dark shadow of doubt over the accuracy and completeness of the evidence given by Ms. Baines and the lay witnesses she called.

96. In the result, I cannot accept that the plaintiff's self-description of subjective complaints and limitations is fair or accurate. She has not met the burden upon her for she has not favoured the court with credible, cogent, consistent evidence.

97. Another important question here is whether or to what extent Ms. Baines' complaints and limitations have been caused or contributed to by the accident in question. Ms. Baines bears the onus of establishing that the impairments she alleges exist and are permanent impairments. Clearly the causal connection, if it exists, cannot be demonstrated by the opinion of the plaintiff herself, no matter how firmly held that opinion may be. Medical science may have an answer; specialists in psychiatry and/or psychology may be able to answer this question but, in this trial, none have. Dr. Bail answered the question but in the negative by concluding that she presented with no diagnosable psychiatric disorder at all when he saw her in November of 2005.

98. Dr. Mamelak has treated Ms. Baines for over a decade but he was not asked to provide an updated report containing his diagnoses and prognoses and so he could not, nor did he, speak to such matters from his report authored in 2002.

99. In my view, Dr. Kiss came closest of all the medical experts in this case to explaining Ms. Baines' situation. He speaks of emotional reactions expanding over time and becoming entrenched symptoms following upon an accident that was essentially benign, in concert with predisposing psychological factors. I accept his opinion that Ms. Baines has not suffered a significant brain injury and that her current symptoms are largely psychologically based and likely treatable.

100. The medical evidence that I accept and credit in this case does not establish that Ms. Baines has, on the basis of a balance of probabilities, suffered any permanent impairment of a physical function. The alleged chronicity of certain complaints notwithstanding, I accept the evidence of Drs. Bail, Upton and Ford and find that Ms. Baines has long since recovered from her concussive and soft tissue injuries, those being the only physical injuries alleged.

101. As stated above, I cannot take as proven through the evidence of Dr. Mamelak that the plaintiff has suffered a permanent impairment of a mental or psychiatrically diagnosable function as the result of this accident. In any event, I accept the evidence of Dr. Bail and find that Ms. Baines has not suffered any ongoing impairment of a mental function at all.

102. The plaintiff has not established a permanent impairment of a psychological function. Whatever psychological issues Dr. Kiss suggested may affect Ms. Baines have not been diagnosed nor proven to have been caused by injuries suffered in the accident in question. Further, Dr. Kiss has determined that Ms. Baines' psychological situation is likely treatable and, as such, the available evidence does not establish that the condition is permanent.

[47] After the trial, the Hehars sought costs well over $100,000 from Ms. Baines. However, after reading the written submissions and hearing oral submissions, Justice Moore decided that an award of costs against Ms. Baines was not warranted in the circumstances.[^7]

[48] Ms. Baines appealed the jury’s verdict and on November 27, 2012, the Divisional Court dismissed her appeal.[^8]

[49] On December 18, 2012, Ms. Baines commenced an action for the tort of intrusion upon seclusion, breach of privacy, and negligence against the Hehars’ lawyers.

[50] On January 23, 2013, Associate Chief Justice Hoy dismissed Ms. Baines' motion for an extension of time to seek leave to appeal to the Court of Appeal from the decision of the Divisional Court. A full panel of the Court of Appeal dismissed Ms. Baines’ motion for reconsideration.[^9]

[51] On June 26, 2013, Ms. Baines was examined for discovery in her action against Linett & Timmis.

[52] On November 27, 2013, Ms. Baines’ invasion of privacy action against the Hehars’ lawyers was dismissed on a motion for a summary judgment.[^10]

[53] In the case at bar, Linett & Timmis’ summary judgment motion was heard on March 27, 2014.

C. DISCUSSION AND ANALYSIS

1. The Test for a Summary Judgment

[54] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.”

[55] Rules 20.04(2.1) and (2.2), which were introduced in 2010, provide the court with the power to weigh the evidence, evaluate the credibility of a deponent and draw reasonable inferences from the evidence. The 2010 amendments to the summary judgment rule were introduced to statutorily overrule a line of cases associated with Aguonie v. Galion Solid Waste Material Inc.,[^11] which had held that a judge on a summary judgment motion cannot find facts and assess credibility and weigh evidence.

[56] In Hryniak v. Mauldin,[^12] a unanimous Supreme Court of Canada introduced a more robust approach to granting summary judgment. In paragraphs 49 and 66 the Court stated:

49. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

50. On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[57] Thus, in Hryniak v. Mauldin, the Supreme Court of Canada held that on a motion for summary judgment under rule 20.04, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the new fact-finding powers.

[58] Thus, the Supreme Court directs for the first step on a summary judgment motion, the approach that existed before Rule 20 was amended and in the case at bar, the court should first determine, based on the evidentiary record, whether there is a genuine issue requiring a trial about whether Ms. Baines can establish professional negligence causing her a loss. This analysis should be done without using the enhanced fact-finding powers available under rules 20.04(2.1) and (2.2) by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

[59] In the case at bar, for the reasons set out below, based on the evidence presented and without the use of the powers provided by rules 20.04(2.1) and (2.2), I am satisfied that Ms. Baines has no tenable professional negligence claim against her former lawyers.

[60] In the case at bar, it is not necessary to go on to the second step of the approach mandated by Hryniak v. Mauldin. Under the second step, if there appears to be a genuine issue requiring a trial, then the court should determine whether the need for a trial can be avoided by using the new powers under rules 20.04(2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[61] In the case at bar, applying the powers of rules 20.04(2.1) and (2.2) only confirms my conclusion that there is no genuine issue requiring a trial.

2. The Elements of a Professional Negligence Claim

[62] The elements of a claim in negligence are: (1) the defendant owes the plaintiff a duty of care; (2) the defendant's behaviour breached the standard of care; (3) the plaintiff suffered compensable damages; (4) the damages were caused in fact by the defendant's breach; and, (5) the damages are not too remote in law.[^13]

[63] There is no doubt that a lawyer owes a duty of care to his or her client. To measure the lawyer’s standard of care for the performance of his or her retainer or to define the nature of the lawyer’s duty in tort, the law uses the general standard of a reasonably competent solicitor.[^14]

[64] In Victoria & Grey Trust Co. v. Apple[^15] at p. 239, Justice McKinley stated:

A solicitor’s retainer, whether it be written or oral, or partly written and partly oral, imposes a two-fold duty upon the solicitor: first, to exercise the care and skill of a reasonably competent solicitor in accordance with the standards of the profession, and second, when the matter for which he has been retained is the carrying out of a contract between his client and another party, to see that the precise terms of the contract for which the solicitor would normally be responsible are carried out in accordance with the terms of the contract, unless he has received instructions to the contrary.

[65] In the case at bar, Linett & Timmis submit that there is no genuine issue for trial that Ms. Baines cannot make out a claim for professional negligence. The lawyers deny that they breached the standard of a reasonably competent lawyer, but more to the point for this summary judgment motion, they submit that in the circumstances of this case Ms. Baines could not and has not proven that any professional negligence caused her any damages.

[66] The lawyers say that they are not to blame for what happened at the trial and they say that there is no evidence to support her argument that she lost the chance of success at the trial because of what they did or did not do before she assumed carriage of her own action as a self-represented litigant. They submit that there is no evidence that Ms. Baines was in some way prevented from presenting the best case that she could to persuade the jury and Justice Moore about her claim.

[67] Linett & Timmis submit that the case at bar is like Holomego v. Brady,[^16] where Justice Molloy dismissed a solicitor’s negligence action. In that case, Justice Molloy stated that even if the plaintiff had shown professional negligence, she would dismiss the claim because the plaintiff was unable to prove any damages caused by the alleged negligence.

[68] Linett & Timmis also rely on the British Columbia Court of Appeal decision in Williamson Pacific Developments Inc. v. Johns, Southward, Glazier, Waltron and Margetts[^17] and the Ontario Superior Court decision in Lioris v. Mahler[^18] which are similar in effect to Holomego v. Brady.

[69] I agree with Linett & Timmis’ argument.

[70] After their retainer was terminated, Ms. Baines was left with a case with enough potency that she was on her own able to obtain a $58,750 settlement for her accident benefits claim and a $100,000, all inclusive offer, from the tort insurer. She made her own decision to proceed to trial and unfortunately she could not sustain the strength of her case when it entered the crucible of a jury trial and the overwhelming evidence produced for the Hehars. Ms. Baines has not proven that the poor outcome was caused by anything that her lawyers did or did not do.

[71] In effect, Ms. Baines blames Linett & Timmis for not turning over to her a settlement-ready or a trial-ready file. In her argument, she submitted that:

Having a lawyer representing me for eight years should have made my job easier when I became self-represented. It did not. … When I became self-represented, I had to attend to all of these issues before the trial. Being eight years after the loss of all this evidence was unattainable for me.

[72] The problem with this submission is that Ms. Baines did not retain the lawyers to prepare her to be a successful self-represented litigant. She retained them to represent her and to be her lawyer of record to settle or try her actions. Ms. Baines terminated the retainer, and the lawyers cannot be blamed for the outcome, which rather can simply be explained by the weaknesses in Ms. Baines’ case, independent of whether she was represented or self-represented.

[73] Ms. Baines alleges a variety of misconduct by the lawyers in how they gathered or failed to gather evidence for the trial and in how they prosecuted her actions, and she submits that the lawyers fell below the standard of reasonably competent lawyers. That may be her opinion, but it is not backed up by any evidence with respect to the standard of care.

[74] Moreover, even if she had been able to prove a breach of the standard of care, the more fundamental problem with Ms. Baines’ case against the lawyers is that the lawyers’ conduct is not the reason that she lost the trial.

[75] There is no genuine issue for trial about Ms. Baines’ solicitor’s negligence action, and her claim of solicitor’s negligence should be dismissed.

3. Ms. Baines’ Claim for Repayment of her Legal Fees

[76] The situation with respect to Ms. Baines’ claim for repayment of legal fees is somewhat different.

[77] As noted above, Ms. Baines agreed to settle the lawyer’s claim for fees subject to a claim for solicitor’s negligence. That claim for solicitor’s negligence has now been resolved against Ms. Baines, and Justice Code’s Order provides that “the herein settlement resolves the fees dispute between Eleanor Baines and Linett & Timmis and that issue is now res judicata and is not to be raised in any other proceedings between the parties.”

[78] Analytically, it may be that Ms. Baines’ claim with respect to legal fees is res judicata, or it may be that it is barred because as a matter of contract, Ms. Baines agreed to settle the claim. But either way the claim is barred.

[79] I add that if the claim was not technically barred, I would have ruled that the claim could not succeed on the merits.

[80] At its best, Ms. Baines’ claim would have been for a refund in whole or in part of the $27,000 she was charged in legal fees. Having reviewed the evidentiary material filed on this summary judgment motion, I conclude that Ms. Baines’ claim with respect to the legal fees would have failed on the merits.

D. CONCLUSION

[81] For the above reasons, I grant the summary judgment motion of the Defendant.

[82] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the Defendant’s submissions within 20 days of the release of these Reasons for Judgment followed by Ms. Baines’ submissions within a further 20 days.

Perell, J.

Released: April 14, 2014