CITATION: Agostino v. Abrahams, 2015 ONSC 2260
COURT FILE NO.: CV-13-782-00
DATE: 2015-04-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
David Agostino
G. Bobesich, for the Plaintiff
Plaintiff
- and -
G. Peter Abrahams
Defendant
HEARD: March 30, April 1, 2015
REASONS FOR JUDGMENT
Van Melle, J.
[1] David Agostino sues Peter Abrahams for damages arising from Mr. Abrahams’ representation of Mr. Agostino. Mr. Agostino was charged and convicted of several criminal offences. At the trial of his criminal charges Mr. Agostino was represented by Robert McFadden. Mr. Agostino retained Mr. Abrahams for the sentencing portion of his trial and for the Appeal. He also retained Mr. Abrahams to sue Mr. McFadden civilly. This matter proceeded uncontested. It appears that Mr. Abrahams has moved to Jamaica.
BACKGROUND
[2] Mr. Agostino was charged with five counts of sexual assault all involving students at Lambton College where he too was a student. The trial was held in the Ontario Court on January 17, 2003. The Crown proceeded by indictment.
[3] Count 1 concerned an allegation that Mr. Agostino walked into C.H.’s residence room and then grabbed her by the crotch over her clothes.
[4] Count 2 concerned an allegation that Mr. Agostino cupped his hand over H.L’s breast in the laundry room of the residence building.
[5] Count 3 was an allegation involving E.C. where E.C. alleged that Mr. Agostino was watching TV in a common room, E.C. sat next to him on the couch, Mr. Agostino took her hand, kissed it and put her hand on his penis (over his pants) saying that he wanted her to suck his penis.
[6] Count 4 was an allegation involving a young man M.G. who alleged that he was in the common room when Mr. Agostino entered the room, grabbed M.G.’s left wrist and placed it on his genitals.
[7] Count 5 was withdrawn. The allegation was that a person had entered the residence room of a visually handicapped young woman and ejaculated on her. Semen found on her sock was tested and did not match the blood sample given by Mr. Agostino.
[8] Mr. McFadden represented Mr. Agostino at trial. Justice Austin found Mr. Agostino guilty of the charges.
[9] On March 19, 2003, Mr. Agostino was sentenced to 30 days in custody, probation and was registered as a sex offender.
[10] Mr. Agostino was represented by Mr. McFadden at the sentencing hearing despite having been assured by Mr. Abrahams that Mr. Abrahams would represent him at the sentencing.
[11] On April 7, 2003, a Notice of Application for leave to Appeal and a Notice of Appeal is filed in the Court of Appeal regarding the convictions and the sentence.
[12] On September 11, 2003, a Notice of Application for Stay of the Sentence Pending Appeal is brought even though Mr. Agostino had finished serving his sentence on April 18, 2003.
[13] May 17, 2005, Mr. Agostino is convicted of one count of failure to comply with probation and sentenced to probation for 24 months, counselling and ordered to pay a fine of $1,000.
[14] On December 22, 2010, the sentence appeal was dismissed as abandoned and the appeal from the conviction was dismissed on its merits.
DAMAGES
[15] Mr. Agostino seeks damages from Mr. Abrahams. He claims:
Punitive damages: $350,000
General damages: $100,000
Loss of Income based on 2012 and on income of $40,000 and $20,000 from 2003 to 2012: $180,000
Abrahams’ Fees: $13,000
Loss of School Fees and Student Loans: $40,000
Fine for Breach of Probation: $1,000
Lockyer’s Fees: $19,450
TOTAL: $713,042
[16] Even though this trial was not defended by Mr. Abrahams, Mr. Agostino still has to prove his damages.
[17] Mr. Agostino takes the position that Mr. Abrahams assured him that his appeal would be successful; that Mr. McFadden was negligent and that Mr. Abrahams told him he would get $500,000 from Mr. McFadden in a civil suit for negligent representation.
[18] I am satisfied that Mr. Abrahams did in fact make these representations to Mr. Agostino. Exhibit 12 is a CD of a conversation between Mr. Agostino and Mr. Abrahams. Although the quality of the recording was poor, I was able to make out portions of the conversation and Mr. Abrahams could be heard to be making assurances of success to Mr. Agostino.
[19] I am also satisfied that Mr. Agostino wrote to Mr. Abrahams and tried to contact him frequently with a view to having him speed things up. Mr. Agostino was not happy with the length of time that his matter was taking. Mr. Abrahams kept telling him that things were moving along. In fact, Mr. Abrahams had obtained a much earlier date for the hearing of the appeal but discovered that because Mr. Abrahams was asserting ineffective assistance of counsel, there was a specific protocol which involved putting Mr. McFadden on notice and cross-examining him in advance of the hearing of the appeal. It seems to me that Mr. Abrahams should have known this, but in any event, it delayed the hearing of the appeal.
[20] The Court of Appeal endorsed the Appeal Book as follows:
[1] The sentence appeal is dismissed as abandoned.
[2] As to the appeal from conviction, the only ground of appeal pursued is the allegation of ineffective assistance of counsel. We are not persuaded that this ground of appeal has been made out. Trial counsel’s conduct is to be assessed on an objective standard of reasonableness. The appellant submits that trial counsel should have led evidence as to the reason why count 5 was withdrawn and pursued the theory that the appellant was the victim of a conspiracy in the residence because of a false reputation. Trial counsel was cross-examined and explained why he did not pursue that theory. On this record, his decision was a reasonable tactical decision. To go down that route would have inevitably led to the admission of highly prejudicial evidence that could have made a difficult defence even more difficult. At the very least, it cannot be said that counsel’s decision was unreasonable. Accordingly, the appellant has failed to demonstrate that counsel’s conduct was incompetent.
[3] Accordingly, the appeal from conviction is dismissed.
[21] Mr. Agostino has failed to demonstrate that Mr. McFadden was negligent in his representation of Mr. Agostino at the trial of the criminal charges. While I understand that the burden of proof in a civil case is less than that in a criminal case, I have reviewed the transcripts of the criminal proceedings and the cross-examinations in support of the appeal of Mr. McFadden and of Mr. Agostino and I do not believe that Mr. Agostino would have been successful in a civil suit against Mr. McFadden. While Mr. Agostino may disagree with the way that Mr. McFadden conducted the trial, there is nothing whatsoever to suggest that Mr. McFadden was negligent. Indeed, it is unfortunate that Mr. Abrahams did not tell this to Mr. Agostino from the outset.
[22] Mr. Agostino felt that the fact that the DNA found on the sock of the young woman in Count 5 was not his DNA should have been brought up because this event caused the other complainants to come forward. The corroborating evidence, however, established that there was no proof that the semen found on the sock of this woman was in fact the same semen that she believed had been placed on her by the perpetrator. In any event, the fact that he was wrongfully accused of this offence and the fact that this caused the other complainants to come forward does not necessarily have any bearing on the other charges.
[23] Mr. Agostino felt as well that the other complainants conspired against him and took issue with the fact that Mr. McFadden did not pursue the theory of a conspiracy. Mr. McFadden chose not to pursue this theory and had a reason for not doing so. Although Mr. Agostino may not have understood the trial strategy, there was in fact such a strategy.
[24] An investigation was conducted on behalf of Mr. Lockyer when he was reviewing the file some years later. The investigator interviewed the male complainant. The investigator wrote in a report dated November 30, 2012:
When prompted, M.G. did remember the name E.C. and recalled that she was dating Allan M. who was a close friend of M.G.’s. M.G. candidly stated that E.C. was a “real piece of work” and that she and Allan fought frequently. He also commented that he knew she would sometimes “make up stories” when she was mad at Allan.
[25] This statement does not demonstrate in any way whatsoever that E.C. lied at Mr. Agostino’s criminal trial. It also does not demonstrate that Mr. McFadden was negligent in his representation of Mr. Agostino.
[26] It does, however, appear that Mr. Abrahams was negligent in his representation of Mr. Agostino at the Court of Appeal. Mr. Abrahams appears to have conceded an abandonment of the conviction from sentence. This is indeed unfortunate, because although Mr. Agostino had in fact served his sentence, his name remains on the Sex Offender Registry and that fact should have been relayed to the Court of Appeal.
[27] Mr. Agostino argued that Mr. Abrahams should have appealed to the Superior Court of Justice before going to the Court of Appeal which would have given Mr. Agostino two chances to have his conviction overturned. He made this submission based on the assumption that the Ontario Court of Justice trial had proceeded summarily. Yet the only indication that I could find in the transcript was a statement that the Crown had proceeded by way of indictment.
[28] Except for the legal fees paid by Mr. Agostino to Mr. Abrahams and Mr. Lockyer, I have no evidence before me to substantiate the other amounts claimed by Mr. Agostino. The plaintiff has the onus of proving his damages. The Ontario Court of Appeal in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1 stated at paragraph 61:
It is also beyond controversy that a plaintiff bears the onus of proving his or her claimed loss and the quantum of associated damages on a reasonable preponderance of credible evidence. Further, as the trial judge recognized in this case, a trial judge is obliged to do his or her best to assess the damages suffered by a plaintiff on the available evidence even where difficulties in the quantification of damages render a precise mathematical calculation of a plaintiff’s loss uncertain or impossible. Mathematical exactitude in the calculation of damages is neither necessary nor realistic in many cases. The controlling principles were clearly expressed by Finlayson J.A. of this court in Martin v. Goldfarb, 1998 CanLII 4150 (ON CA), [1998] O.J. No. 3403, 112 O.A.C. 138, at para. 75, leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 516:
I have concluded that it is a well established principle that where damages in a particular case are by their inherent nature difficult to assess, the court must do the best it can in the circumstances. That is not to say, however, that a litigant is relieved of his or her duty to prove the facts upon which the damages are estimated. The distinction drawn in the various authorities, as I see it, is that where the assessment is difficult because of the nature of the damage proved, the difficulty of assessment is no ground for refusing substantial damages even to the point of resorting to guess work. However, where the absence of evidence makes it impossible to assess damages, the litigant is entitled to nominal damages at best.
[29] In this case there is an absence of evidence. The loss of income appears to be based on the inability of Mr. Agostino to find a good job because of his criminal convictions. This cannot be laid at the feet of Mr. Abrahams or Mr. McFadden.
[30] The loss of school fees and student loans are also attributable to the criminal convictions and again, the lawyers are not responsible for these losses.
[31] Regarding the fine for the breach of probation, Mr. Agostino by his own admission failed to show up for one of the probation meetings because a relative was ill and Mr. Agostino stayed to look after a young child. The other failure to show up for a probation check-in was a result of Mr. Abrahams telling him that he no longer had to go to probation meetings, however, the fine was for one failure to check-in, not two, and could well have related to the breach that was Mr. Agostino’s own fault.
[32] I was given no case law or indication from Mr. Agostino’s current lawyer as to the calculation of punitive and general damages. There is no indication that Mr. Agostino went for counselling or sought medical attention as a result of these events.
[33] I am satisfied, however, that Mr. Abrahams made promises that he did not keep and as such I am prepared to award nominal punitive damages in the amount of $20,000.
[34] Mr. Agostino consulted Mr. Lockyer because he was completely frustrated by the lack of activity and progress by Mr. Abrahams and as such Mr. Abrahams must reimburse him for the fees paid to Mr. Lockyer in the amount of $19,450.
[35] I am also satisfied that the fees charged in this suit by Mr. Bobesich should be awarded to Mr. Agostino. Those fees amount to $9,592.
[36] In Ontario criminal lawyers can be sued by their client’s for professional negligence resulting from their conduct during criminal proceedings. In Amato v. Welsh, 2013 ONCA 258 at para 54 the Appeal Court stated:
The current law on the doctrine of absolute privilege in Ontario and the other Commonwealth jurisdictions to which I have referred, may be summarized as follows. In this province, the doctrine of absolute privilege has never been treated as a rationale for protecting lawyers from negligence suits by their own clients. In Ontario, lawyers can be sued by their clients for their negligent conduct of both civil and criminal litigation.
[37] Judgment is granted in favour of Mr. Agostino in the amount of $62,042.
Van Melle J.
Released: April 8, 2015
CITATION: Agostino v. Abrahams, 2015 ONSC 2260
COURT FILE NO.: CV-13-782-00
DATE: 2015-04-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
David Agostino
Plaintiff
- and –
G. Peter Abrahams
Defandant
REASONS FOR JUDGMENT
Van Melle J.
Released: April 8, 2015