ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-CV-475386
DATE: 2014-07-29
BETWEEN:
LENARD KOTYLO
Plaintiff
– and –
LEGAL AID ONTARIO
Defendant
Lenard Kotylo, self-represented
Andrea Leanne Danon, for the Defendant
HEARD: July 22, 2014
PERELL, J.
REASONS FOR DECISION
A. INTRODUCTION
[1] The Plaintiff, Lenard Kotylo, is a lawyer. In a four-paragraph Statement of Claim issued on April 3, 2013, he sued the Defendant, Legal Aid Ontario, for $43,443.77 for breach of contract. Mr. Kotylo pleaded that Legal Aid Ontario refused to pay him for four legal aid certificate accounts.
[2] Legal Aid Ontario brings a motion to have the Statement of Claim struck out for failure to plead a reasonable cause of action. Legal Aid Ontario submits that this Court does not have jurisdiction to decide Mr. Kotylo’s breach of contract claim, because his claim for payment is not a contract but rather is governed by the Legal Aid Services Act, 1998, S.O. 1998, c. 26.
[3] Mr. Kotylo brings a cross-motion to deliver a 31-paragraph Amended Statement of Claim. The amended pleading sets out the details of his breach of contract claim.
[4] For the reasons that follow, I grant Legal Aid Ontario’s motion, and I dismiss Mr. Kotylo’s cross-motion.
B. FACTUAL BACKGROUND
[5] Because it better provides the details of Mr. Kotylo’s breach of contract claim, for the purposes of deciding Legal Aid Ontario’s motion, I shall assume that I granted leave to Mr. Kotylo to deliver his Amended Statement of Claim, which is reproduced as Schedule “A” to these Reasons for Decision.
[6] As set out in the Amended Statement of Claim, Mr. Kotylo provided 387.1 hours of legal services to four clients pursuant to Legal Aid Certificates.
[7] Mr. Kotylo submitted four accounts to Legal Aid Ontario, which manages the Legal Aid System pursuant to the Legal Aid Services Act, 1998, S.O. 1998, c. 26 and Ont. Reg. 106/99 (Administration of System for Providing Legal Aid Services).
[8] Mr. Kotylo’s accounts were out of time, and he asked Legal Aid Ontario to exercise its discretion under the statutory scheme to grant an extension of time, because he had lost services of his legal secretaries and was required to operate his practice on his own, or with less skilled people, or with people he needed to train, all during a time when he needed to spend time dealing with family emergencies.
[9] In an alleged breach of contract, Legal Aid Ontario did not examine Mr. Kotylo’s circumstances and exercise its discretion to grant an extension; rather, Legal Aid Ontario told him that it had a policy that staffing issues were not exceptional matters that merited the exercise of discretion.
[10] Legal Aid Ontario did not grant any extension and it refused to pay Mr. Kotylo’s accounts.
[11] Realizing that a second or third stage review of his accounts under the statutory regime was futile, Mr. Kotylo sued Legal Aid Ontario for breach of contract.
C. STATUTORY BACKGROUND
[12] The sections of the Legal Aid Services Act, 1998 that are relevant to resolving the motions before the court are set out in Schedule “B” to these Reasons for Decision.
D. DISCUSSSION
[13] This court has the jurisdiction to determine breach of contract claims and Legal Aid Ontario has the capacity to enter into contracts. For example, Legal Aid Ontario might contract as a tenant for space for a Legal Aid Clinic.
[14] Legal Aid Ontario, however, does not enter into contracts with the lawyers who provide legal services to clients pursuant to Legal Aid Certificates. The relationship between Legal Aid Ontario and the lawyer is statutory, not contractual.
[15] Section 31 of the Legal Aid Services Act, 1998, along with the regulations, are the source of Legal Aid Ontario’s obligations to pay lawyers, such as Mr. Kotylo, for legal services provided to their clients. Section 31 states:
Corporation to pay for certificate services
- (1) The Corporation shall pay every lawyer and service-provider who provides legal aid services pursuant to a certificate a fee for the services rendered, determined in accordance with the regulations, and an amount for proper disbursements, determined in accordance with the regulations.
Verification of accounts
(2) The Corporation may request information from the lawyer or service-provider in support of the account submitted by the lawyer or service-provider and the lawyer or service-provider shall provide the Corporation with the information requested.
Appeal re accounts
(3) A lawyer or service-provider who provides legal aid services pursuant to a certificate may appeal the Corporation’s determination of the lawyer’s or service-provider’s account in the manner set out in the regulations.
[16] Mr. Kotylo does not have a claim in contract with Legal Aid Ontario. He may or may not have public law rights under the Legal Aid Services Act, 1998, which, so far, he has chosen not to exercise, but he would and apparently did understand that his entitlement to be paid for his accounts was subject to the regulation of the Act.
[17] It is plain and obvious that Mr. Kotylo’s breach of contract action is untenable, and, therefore, his action should be dismissed.
E. CONCLUSION
[18] For the above reasons, the cross-motion is dismissed and Legal Aid Ontario’s motion is granted. Mr. Kotylo’s action is dismissed.
[19] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Legal Aid Ontario’s submissions within twenty days of the release of these Reasons for Decision and with Mr. Kotylo’s submissions to follow within a further twenty days.
Perell, J.
Released: July 29, 2014