SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 06-CV-306408PD1
DATE: 20140721

RE: Shu He Huang, Plaintiff

– AND –

Aviva Insurance Company of Canada, Lawrence Harvey Fine, Jewell Law, formerly named Jewell Michael & Obradovich and Gregory Chang, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL:
Shu He Huang, in person

Pino Cianfarani and N. Marotta, for the Defendant Gregory Chang

Antonios T. Antoniou, for the Defendants Lawrence Harvey Fine and Jewell Law

HEARD: July 18, 2014

REASONS FOR JUDGMENT

[1] The Defendant, Gregory Chang (“Chang”), moves for an Order under Rule 20.04 of the Rules of Civil Procedure, RRO 1990, Reg 194 dismissing the action as against him. Chang’s counsel submits that there is no genuine issue requiring a trial, and so summary judgment is appropriate under the circumstances.

[2] Chang is the second in a series of four solicitors who have represented the Plaintiff in her claim for accident benefits brought against the Defendant, Aviva Insurance Company of Canada (“Aviva”). He represented her from May 14, 2003 until she terminated his retainer on October 25, 2004. The Plaintiff has been intermittently represented by counsel since the car accident which initiated this entire matter in 2000; she is presently self-represented.

[3] On January 24, 2000, the Plaintiff was injured when as a pedestrian she was struck by an automobile at the corner of Lansdowne and Dundas Streets in Toronto. She brought a tort action in respect of that accident, and, in addition, sought statutory accident benefits from Aviva.

[4] The first lawyer the Plaintiff retained with respect to the accident benefits claim was the Defendant Lawrence Harvey Fine (“Fine”), who represented her as a member of the Defendant Jewell Law, formerly named Jewell Michael & Obradovich (“Jewell Law”) (collectively “Fine/Jewell Law”). That relationship lasted until May 14, 2003, when the Plaintiff ended the Jewell Law retainer and retained Chang in its place. Fine/Jewell Law seek no specific relief in this motion, but their counsel filed written submissions and appeared at the hearing in order to request that the court make no findings that will prejudice them or that could potentially lead to contradictory findings at trial.

[5] The Statement of Claim makes claims against Aviva for certain statutory accident benefits. It also makes claims against Fine/Jewell Law and Chang, alleging professional negligence in their respective failures to obtain the statutory accident benefits for the Plaintiff.

[6] As against Chang, the Statement of Claim specifically mentions his alleged failure to obtain relief upon Aviva’s termination of income replacement benefits. The Plaintiff initially received income replacement benefits from Aviva pursuant to the Statutory Accident Benefits Schedule – Accidents on or after November 1, 1996, O.Reg. 403/96 (the “SABS”). However, by letter dated May 31, 2002 Aviva stated that it was terminating those benefits.

[7] Section 281.1 of Insurance Act, RSO 1990, c. I.8, enacts a two year limitation period for actions against an insurer for refusal to provide benefits. If one assumes that the income replacement benefits terminated on the date of Aviva’s letter, the expiry of the limitation period would have occurred during the period in which Chang was counsel to the Plaintiff; and since no claim to reinstate the income replacement benefits was made on the Plaintiff’s behalf prior to the two year anniversary of the letter, the Plaintiff has alleged that Chang is liable for professional negligence in depriving her of this benefit.

[8] There are two problems with the Plaintiff’s claim regarding the termination of income replacement benefits. In the first place, it is unclear whether Aviva ever sent the May 31, 2002 termination letter. Neither the Plaintiff, nor Fine, nor Chang recall receiving the letter, and Aviva apparently has no record of having actually sent it.

[9] Given this state of uncertainty, Aviva has now taken the position that it does not rely on a limitation defense in its response to the Plaintiff’s claim for income replacement benefits. By letter dated May 24, 2013, counsel for Aviva specifically assured the parties that Aviva was abandoning its limitation defense. Accordingly, the fact that the two year anniversary of its termination letter (if, indeed, any letter were ever sent) fell during Chang’s retainer is irrelevant. Chang cannot be held liable for missing a limitation period if Aviva is not contending that the limitation was missed.

[10] Perhaps even more importantly, it would seem that the income replacement benefit payments were not actually terminated while Chang was counsel to the Plaintiff. Indeed, the evidence in the record establishes that the Plaintiff continued to receive income replacement benefits after May 31, 2004 and after Chang’s retainer was terminated by the Plaintiff in October 2004. It is difficult to fault Chang for failing to seek the reinstatement of benefits that had not actually terminated before his own retainer was terminated by the Plaintiff.

[11] Counsel for Fine/Jewell Law submits that although I should avoid making findings that will prejudice his clients at trial, I am entitled to make findings in their favour if they flow logically from findings I make in respect of Chang. Relying on the Court of Appeal’s recent decision in King Lofts Toronto I Ltd. v. Emmons, 2014 ONCA 215, counsel states that a party need not be the one seeking summary judgment in order to benefit from any finding by the motions judge. Specifically, he submits that the timing of the respective retainers is such that if I hold that Chang cannot be liable in respect of any loss of income replacement benefits, then it must be the case that Fine/Jewell Law also cannot be liable.

[12] I agree with this submission. Since Fine/Jewell Law represented the Plaintiff prior to Chang being retained, if Chang cannot be faulted for missing a limitation period or for failing to have benefit payments reinstated that had not yet terminated, then ipso facto Fine/Jewell Law cannot be faulted under these headings. If Chang’s retainer ended too early for any liability respecting income replacement benefits to accrue to him, then so did Fine/Jewell Law’s retainer.

[13] The only other benefits under the SABS to which the Plaintiff may have been entitled as a result of her accident were attendant care and housekeeping benefits. I make no finding as to whether the Plaintiff was or was not actually entitled to those benefits; however, I do observe that the Plaintiff’s claim against Aviva under those headings does not appear to impinge on Chang’s time as the Plaintiff’s lawyer.

[14] Section 18(2) of the SABS provides that, “[n]o attendant care benefit is payable for expenses incurred more than 104 weeks after the accident.” An identical 104 week maximum applies to a claim for housekeeping benefits in section 18(3) of the SABS. Since Chang was retained by the Plaintiff more than 104 weeks after the accident, the question of whether or not the Plaintiff was entitled to those benefits is moot in respect of the claim against Chang.

[15] Finally, I note that a full seven years after commencing the action, the Plaintiff has provided no expert evidence with respect to the standard of care that Chang should have met. One would expect that a claim for professional negligence in a specialized practice context such as accident benefits would be supported by some evidence as to the appropriate professional standard which a lawyer is claimed to have breached. As the court put it in Gunrah v Cyr, 2012 ONSC 1609, at para 74, “the absence of expert evidence on this issue in this case leaves an evidentiary hole.”

[16] It is by now well established that the “best foot forward” principle applies to summary judgment motions: Swede Farms Ltd. v Egg Farmers of Ontario, 2014 ONSC 1200, para 32. The Plaintiff is not entitled “to sit back and rely on the possibility that more favourable facts may develop at trial.” Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., 1996 7979, at para. 29 (SCJ). Accordingly, on this motion I must take the record as reflecting all of the evidence that the Plaintiff will present at trial.

[17] While the Plaintiff is currently self-represented and may not be aware of the specific requirements of Rule 20 and the law pertaining to summary judgment, I note that she has for long stretches of time during this litigation been represented by counsel. Indeed, she has had two different lawyers of record since the commencement of this action in 2007. At no time, including during the periods in which she was represented by counsel, has the Plaintiff provided any evidence as to the standard of care to which she claims that Chang should be held.

[18] As the Supreme Court of Canada said in Hyrniak v Mauldin, 2014 SCC 7, at para 66, “[t]here will be no genuine issue requiring a trial if the summary judgment process provides her [i.e. the motions judge] with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2.1).” That aptly describes the case here.

[19] There is no viable claim against Chang. The action against him is dismissed.

[20] I hasten to add that nothing in my review of the record casts any doubt on the very real suffering of the Plaintiff. She was hit by a car and she genuinely feels that she has been undercompensated for all of the physical and other losses she has experienced.

[21] Counsel for Chang has provided a Bill of Costs and Costs Outline that puts the total costs of the action and motion at $58,208.98 on a partial indemnity scale. While I have no doubt that this figure accurately reflects the time spent on the file, and that the time and effort of counsel were well invested, I hesitate to impose a financial burden of that magnitude on the Plaintiff. She has already testified that she is unable to afford dental surgery necessitated by the car accident, which would cost in the range of $45,000. A costs award of even more than that amount would doubtless put her in an impossible situation.

[22] The award of costs is a discretionary matter under section 131 of the Courts of Justice Act. A number of factors to be considered in exercising the motion judge’s discretion in awarding costs are set out in the Rules of Civil Procedure, including, most appropriately, the expectations of the unsuccessful party: Rule 57.01(1)(0.b). Overall, the court is required to consider what is “fair and reasonable” in fixing costs, having regard to perspective of all of the parties: Boucher v Public Accountants Council (Ontario) (2004), 2004 14579 (ON CA), 71 OR (3d) 291 (Ont CA), at para 26.

[23] I am unsure what the Plaintiff might have expected in terms of costs in this situation. That said, I am confident that somewhere along the line one of the lawyers that has represented her in this action must have explained to her that costs payable by the unsuccessful party to the successful party are a feature of the litigation system. She cannot have expected the costs to be zero; at the same time, she likely would not expect the costs to be so financially punishing that she is unable to move forward.

[24] I will exercise my discretion to order the Plaintiff to pay Chang costs in the total amount of $5,000. This is a small fraction of the costs incurred by Chang, and does not in any way reflect on the excellent work performed or appropriate billings submitted by his counsel. Rather, this modest award is meant to reflect the fact that while the Plaintiff must pay something toward the opposing party’s costs, the court has considerable empathy for her as a person who has suffered much hardship already. I do not wish to add too much more to her burden.

Morgan J.

Date: July 21, 2014