CITATION: Tabrizi v. Gervais et al., 2015 ONSC 1037
COURT FILE NO.: CV-14-499569
DATE: 2010312
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FARIDEH GHAFOURIAN AHMADZADEH TABRIZI
Plaintiff
– and –
BORDEN LADNER GERVAIS and
THE LAW SOCIETY OF UPPER CANADA
Defendants
Farideh Ghafourian Ahmadzadeh Tabrizi,
in person
Lucas Lung, for the Defendant Borden Ladner Gervais, and
Susan Sack for the Defendant the Law Society of Upper Canada
HEARD: February 3, 2015
FAIETA, j
REASONS FOR DECISION
[1] This action arises out of the plaintiff’s failure to close the purchase of a condominium unit in Toronto (“Unit”) from Ruddington Residences Inc. (“Vendor”) pursuant to an agreement of purchase and sale (“Agreement”).
[2] The defendant Borden Ladner Gervais (“BLG”) represented the Vendor and it brings this motion for an order granting summary judgment dismissing this action as against BLG pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[3] The defendant The Law Society of Upper Canada (“LSUC”) brings this motion for an order: (1) striking out the claim pursuant to Rule 21.01(1); (2) dismissing the action on the basis that it is frivolous and vexatious or otherwise an abuse of process pursuant to Rule 21.01(3)(d); (3) alternatively, for an Order pursuant to Rule 25.11 striking out all or part of the statement of claim.
[4] BLG filed the affidavit of Richard Applebaum, counsel for the Vendor and a former partner at BLG, sworn July 31, 2014, in support of its motion. LSUC filed a Compendium of Proceedings that contains records from two matters related to this proceeding, namely, proceedings related to an application to evict the plaintiff from the Unit that was heard by the Landlord and Tenant Board as well as an application to this court for a declaration authorizing the release of deposit monies held by BLG. The plaintiff did not file an affidavit; however, she did file a Motion Record which contained various documents including the statement of claim, several letters, excerpts from the Agreement, and various corporate profile reports.
Background
[5] The plaintiff entered into the Agreement on April 15, 2012. The plaintiff subsequently retained Stephen Shub to review the Agreement.
[6] In addition to representing the Vendor on the sale of the Unit, the defendant BLG was also was the escrow agent for the purpose of holding deposit monies paid by the plaintiff to the Vendor.
[7] On May 3, 2012 the plaintiff paid a deposit of $27,899.50 to BLG, in trust. On June 15, 2012 the plaintiff paid a further deposit of $55,799 to BLG, in trust. The plaintiff paid a total deposit of $83,698.50.
[8] On June 15, 2012 (“possession date”) the plaintiff occupied the Unit. The plaintiff paid a monthly occupancy fee from the possession date to the date of closing.
[9] On June 26, 2012 BLG released the first $20,000 of the plaintiff’s deposit to the Vendor in accordance with the requirement of s. 81(7)(b) of the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O. 31 and regulations made under that statute.
[10] On July 27, 2012 the plaintiff terminated Mr. Shub’s retainer. The plaintiff subsequently retained Jeffrey Shek to represent her on this purchase.
[11] The plaintiff’s cheques for the July 2012 and August 2012 occupancy fee were not honoured by the plaintiff’s bank.
[12] The purchase of this Unit was to close on August 27, 2012. However both the plaintiff and counsel for the plaintiff contacted BLG and requested that the closing date be postponed to December 2012. On September 6, 2012 the Vendor agreed to extend the closing date to December 12, 2012.
[13] On September 11, 2012 BLG was advised that the plaintiff was now, in relation to this purchase, being represented by Constance Cargill.
[14] On October 11, 2012 the plaintiff sent a letter to BLG advising that she had sold her property and would be ready to complete the purchase of the Unit in November 2012. At the plaintiff’s request the closing was re-scheduled for November 26, 2012.
[15] In mid-November 2012 the plaintiff sent several emails to her lawyer and BLG that made numerous allegations: (1) title issues; (2) condition of the Unit; (3) lack of security in the building; (4) that she was charged twice as much for the Unit as other units; (5) that Vendor had falsified documents and changed the keys to the Unit; (6) Vendor and BLG were a “bunch of criminals.”
[16] On November 23, 2012 Ms. Cargill advised BLG that she was no longer representing the plaintiff.
[17] The closing scheduled for November 26, 2012 was not completed as the plaintiff failed to deliver the requisite closing documents and funds.
[18] The Vendor subsequently obtained an order from the Landlord and Tenant Board, dated April 8, 2013, that evicted the plaintiff from the Unit. This court dismissed the plaintiff’s motion for leave to extend the time for filing of a Notice of Appeal from the Board’s decision on October 10, 2013. One of the considerations in refusing leave was that the court found that nothing in the material demonstrated that the plaintiff’s appeal would have any merit.
[19] On December 16, 2013 the Vendor commenced an application in this court for an order directing BLG to release the balance of the deposit monies that it held and any accrued interest to Vendor. The motion was returnable on March 25, 2014.
[20] On March 4, 2014 the plaintiff commenced this action against BLG and the LSUC.
[21] On March 25, 2014 this court directed BLG to release the deposit monies and any accrued interest to Vendor. The court’s endorsement indicates that the plaintiff did not appear on this motion despite having had actual notice of the application. The court directed that the monies not be paid to Vendor until three weeks from the issuance of the court’s Order. The plaintiff did not appeal the Order. The deposit monies were transferred by BLG to the Vendor on April 23, 2014.
Allegations
[22] The following allegations are made against the defendant LSUC in the statement of claim:
- Paragraph 30
The plaintiff alleges that her, and her mother’s, confidential information was misused by counsel at BLG in February 2014.
- Paragraph 47
The plaintiff alleges that the Landlord and Tenant Board hearing was “a scam orchestrated by a few lawyers who were abusing their power using me a mean [sic] to complete their illegal transactions with the help of the City of Toronto.”
- Paragraph 51
The plaintiff complained to counsel for the Vendor at BLG about the location of the Unit in relation to noise, smells and strange conduct by the occupants of the unit above her. The plaintiff states that she advised counsel at BLG representing the Vendor that he would be responsible if anything happened to her. The plaintiff states that she brought this communication to the attention of the LSUC.
- Paragraph 59
The plaintiff alleges that BLG is also the LSUC. This position was confirmed by the plaintiff in oral submissions. The plaintiff alleges that BLG and the LSUC were responsible to ensure that at the time of closing the Unit had transferrable title and was “a real property.”
- Paragraph 60
The plaintiff brought a complaint to the LSUC in relation to her counsel’s handling of the appeal from the decision of the Landlord and Tenant Board to evict the plaintiff.
- Paragraph 61
The plaintiff was notified by the LSUC that it does not have the jurisdiction to investigate the negligence of a lawyer and that the plaintiff would have to sue the lawyer. The plaintiff states that she does not believe this statement.
- Paragraph 62
The plaintiff alleges that she provided the LSUC with documents that show there have been attempts by a third party to collect monies that she owes to a former lawyer.
- Paragraph 63
The plaintiff alleges that she was a victim of fraud as a few of her lawyers have used her information and reports to the LSUC or court for purposes other than serving her interests.
- Paragraph 64
The plaintiff alleges that at the time the court refused to extend the time for filing an appeal from the Landlord and Tenant Board’s eviction decision, she noticed that the proceeding was not for the matter for which she had filed with the Divisional Court. The plaintiff alleges that BLG and several lawyers, including her former lawyer Mr. Shub, “… acted together to dismiss my action against the so called vendor.”
- Paragraph 68
The LSUC has files for five lawyers “who orchestrated the issues through their connections at the Law Society’s Complaints Resolution department” to collect original documents from the Landlord Tenant Board hearing. For the past 12 years the LSUC has been involved in “collecting any and all original documents pertaining to its various member’s malpractice while acting for different defendants in the matter of Human Rights, Health, Education and identity theft from me before the Superior Court of Justice since 2002 and providing me with incorrect information that I should sue the lawyer instead of receiving compensation for the incurred damages from the Member’s insurance paid to the Law Society of Upper Canada.”
The Claim against BLG
[23] The following principles are relevant to this motion for summary judgment:
• Rule 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.
• Rule 20.02(2). In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. The responding party must put her best foot forward and is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial. See Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 32, 202 [underlining added]
• Rule 20.04(2)(a). 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. [underlining added]
• Rule 20.04(2.1). In determining under Rule 20.04(2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence. [underlining added]
• The rules for summary judgment “must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.” See Hyrniak v. Maudlin, 2014 SCC 7, [2014] 1 S.C.R. 87, paras. 1-6
Does the Plaintiff’s Claim Raise a Genuine Issue Requiring a Trial?
[24] The legal and supporting factual basis for plaintiff’s claim against BLG is difficult to comprehend. However, the statement of claim appears to allege negligence, breach of contract, conspiracy, fraud, illegality and misuse of confidential information.
Negligence
[25] The general rule is that a lawyer only duty of care is to his client and not to a person who is adverse in his interest to that client. Any duty of care to a non-client would conflict with a lawyer’s duty to his or her own client. Where two parties are represented by their own lawyers in an arm’s-length transaction, it is reasonable to expect a party will rely on her own lawyer for advice rather than look to the lawyer for the opposite party to protect her interests. See 790668 Ontario Inc. v. D’Andrea Management Inc., 2014 ONSC 3312, at paras. 94-98.
[26] BLG had no contact with the plaintiff until after she signed the Agreement. The plaintiff was represented by various lawyers for the most of the period between the time that she signed the Agreement and the date of closing. In my view, BLG owed no duty of care to the plaintiff on these facts.
[27] In holding the plaintiff’s deposit, BLG also acted as the escrow agent for the Vendor. The evidence is that BLG complied with the law in releasing $20,000 to the Vendor on ?? and in releasing the balance of the deposit on ?? pursuant to the order of this court dated ??. Accordingly, there is no basis for a claim in negligence against BLG in respect of its release of the deposit.
Breach of Contract
[28] The statement of claim implicitly alleges a breach of contract in that it contains numerous allegations regarding the condition of the unit and whether the Unit was had “transferrable title” and was a “real property.” However, BLG was not a party to the Agreement. Accordingly, there is no claim in breach of contract against BLG. In any event, there was no problem with providing transferrable title to the Unit on the date of closing according to the affidavit evidence filed by BLG.
Conspiracy, Fraud, Illegality and Misuse of Confidential Information
[29] There is no legal or evidentiary basis for the various bald allegations of conspiracy, fraud, illegality and misuse of confidential information made in the statement of claim at paras. 30, 47, and 59.
[30] In my view, there is no genuine issues raised in the statement of claim that require a trial. Accordingly, I dismiss the claim against BLG.
The Claim against LSUC
[31] Under Rule 21.01(1)(b) a claim may be struck if it discloses no reasonable cause of action. Rule 21.01(2)(b) provides that no evidence is admissible on a motion under that rule.
[32] The test for striking out a statement of claim is whether, assuming all facts pleaded can be proven, it is “plain and obvious” that the claim cannot succeed. The claim must be read generously with allowances for inadequacies due to drafting deficiencies. See Hartmann v. Amourgis, [2008] O.J. No. 2388, at para. 15.
[33] The LSUC does not owe a private law duty of care to the plaintiff.
[34] In Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, at paras. 14-17, the court stated that:
… The appellants argued that a private law duty of care to persons who deposit moneys into a solicitor’s trust account, as members of the public, can be inferred from the Las Society’s statutory public interest mandate. In particular, it is alleged that that the Law Society’s investigative and disciplinary powers over its members … ground this duty to persons such as the appellants in the present case. We disagree. The Law Society Act is geared for the protection of clients and thereby the public as a whole, it does not mean that the Law Society owes a private law duty of care to a member of the public who deposits money into a solicitor’s trust account. Decisions made by the Law Society require the exercise of legislatively delegated discretion and involve pursuing a myriad of objectives consistent with public rather than private law duties.
Safeguards, in addition to a private law duty of care, exist to ensure the protection and compensation of clients as members of the public. These safeguards are expressly provided by the Legislature as a means to compensate for economic loss. Examples include a public insurance and/or compensation scheme funded by the profession itself. In this case, the Law Society maintains a Compensation Fund … to compensate for losses sustained as a result of dishonesty by lawyers. The Lawyers’ Professional Indemnity Company provides insurance for claims by clients against their lawyers for negligence. …
Finally, and perhaps most indicate of the Legislature’s intent, the Act provides a statutory immunity in s. 9 of the Act, …
Section 9 precludes any inference of an intention to provide compensation in circumstances that fall outside the lawyers’ professional indemnity insurance and the lawyers’ fund for client compensation.
[35] Under section 9 of the Law Society Act, R.S.O. 1990, c. L.8, the LSUC is given a broad statutory immunity from liability subject to a narrow “bad faith” exception in the following terms:
No action or other proceedings for damages shall be instituted against the Treasurer or any bencher, official of the Society or person appointed in Convocation for any act done in good faith in the performance or intended performance of any duty or in the exercise or in the intended exercise of any power under this Act, a regulation, a by-law or a rule of practice or procedure, or for any neglect or default in the performance or exercise in good faith of any such duty or power.
[36] In Deep v. Ontario, [2004] O.J. No. 2734, the court stated at para. 64:
Bad faith is a legal conclusion. It has been held to involve an allegation of an intent to deceive or to make someone believe what is false. It has been said to be equivalent to an allegation of dishonesty. Where a plaintiff's claim includes an allegation of bad faith, the pleading must be supported by sufficient particulars that support a legal conclusion of bad faith. If it does not, the pleading should be struck.
[37] Even on a generous reading, it is my view that the statement of claim neither contains an allegation of bad faith against the LSUC nor the particulars to support that conclusion.
[38] For the above reasons, the statement of claim discloses no reasonable cause of action against the LSUC.
Is the Claim Frivolous, Vexatious or Otherwise an Abuse of Process of the Court?
[39] Under Rule 21.01(3)(d) a claim may be struck if the claim is frivolous, vexatious or otherwise an abuse of process of the court. The court may consider evidence in determining a motion under Rule 21.01(3)(d).
[40] In Hartmann, the court noted that Rule 21.01(3)(d) applies “where no positive result is possible” for the plaintiff. The court also noted that the Oxford English dictionary defines “frivolous” and “vexatious” as follows:
Frivolous – “manifestly futile”;
Futile – “incapable of producing any result”; useless, ineffectual, vain.
Vexatious - “of legal actions; Instituted without sufficient grounds for the purpose of causing trouble or alliance to the defendants:
[41] Courts have recognized that an abuse of process occurs when litigants are intent on re-litigating or re-defending causes of action or issues that have already been decided. See Hartmann, at para. 21.
[42] The defendant LSUC submits that the plaintiff’s claim seeks to re-litigate orders made by this court.
[43] The LSUC states that the defendant alleges in this action that Vendor breached the Agreement in a variety of ways, however, the March 25, 2014 Order of this court to release the deposit to the Vendor would not have been made had the court considered that Vendor was in breach of its contract with the plaintiff.
[44] Similarly, the LSUC states that the plaintiff alleges that she did not obtain leave to appeal the eviction issued by the Landlord and Tenant Board due to her solicitor’s fault. However, the court in refusing to grant leave indicated that there was no merit in the plaintiff’s objection to the eviction proceeding.
Does the claim offend the rules of pleading?
[45] Under Rule 25.11 the court may strike out or expunge all or part of a pleading with or without leave to amend, on the ground that the pleading:
(a) may prejudice or delay the fair trial of an action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court.
[46] The following principles apply:
• The importance of pleadings cannot be overemphasized. They inform the court of the matters in issue and constitute a record of the issues raised in deciding the action so as to prevent further litigation upon matters already judicially determined;
• A party must plead all the facts required to establish a cause of action;
• A pleading must be sufficiently particularized to enable the defendant to defend or respond to it;
• The purposes of pleadings are to: (1) clearly and precisely define the questions in controversy between the litigants; (b) give fair notice of the precise case which is required to be met and precise remedies sought; (c) assist the court in its investigations of the truth of the allegations made.
[47] In Morin v. Prince Edward Island, [1989] P.E.I.J. No. 137, the court stated that:
What has been filed on behalf of the Plaintiff is essentially a long rambling narrative document, outlining the history of the differences which are alleged to have arisen between the plaintiff and one or more of the Defendants all in some 54 paragraphs. Much of what is contained therein may possibly be factually true, but nonetheless wholly improperly included in a pleading. It is also, at the best, extremely difficult to ascertain what remedy the Plaintiff seeks against which particular Defendant and why.
In my opinion, the pleading in question is so defective in form and in breach of so many rules applicable to appropriate pleadings, that it would be impossible by a series of amendments to bring it within the requirements. The Statement of Claim must be struck in its entirety.
[48] Like the situation in Morin, this claim is a long rambling narrative that outlines a history of differences between the plaintiff, the defendants and others in 69 paragraphs without adhering to the principles of pleading noted above.
[49] For these reasons, had I not struck out the statement of claim under Rule 21 for the reasons noted above, I would have also struck out the statement of claim under Rule 25.11 without leave to amend.
Conclusion
[50] The motions brought by BLG and LSUC are granted.
[51] Submissions as to costs of this motion, if any party wishes to make such submissions, shall be delivered to the court in writing within two weeks. Costs submissions shall not be greater than two pages in length.
Mr. Justice M. Faieta
Released: March 12, 2015
CITATION: Tabrizi v. Gervais et al., 2015 ONSC 1037
COURT FILE NO.: CV-14-499569
DATE: 2010312
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FARIDEH GHAFOURIAN AHMADZADEH TABRIZI
Plaintiff
– and –
BORDEN LADNER GERVAIS and
THE LAW SOCIETY OF UPPER CANADA
Defendants
REASONS FOR JUDGMENT
Mr. Justice M. Faieta
Released: March 12, 2015