CITATION: Salman v. Patey, 2015 ONSC 2727

COURT FILE NO.: CV-14-497689

DATE: 20150427

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Rawia Salman, Plaintiff

AND:

Shawn Patey, Defendant

BEFORE: F.L. Myers J.

READ: April 24, 2015

ENDORSEMENT

[1] This motion was referred to me by the registrar’s office pursuant to rule 2.1.01(7) following receipt of a written request of counsel for the defendant under subrule 2.1.01(6).

[2] The defendant seeks to invoke Rule 2.1 on the basis that the claim is barred by the Limitations Act, 2002, S.O. 2002, c.24 Sch. B. and because I dismissed a similar action brought by the plaintiff after a full oral hearing of a motion brought by the defendant in that action.

[3] The Fresh as Amended Statement of Claim in this action states clear and cogent claims for professional negligence against the defendant. The plaintiff claims that Mr. Patey’s legal representation of her fell short of acceptable professional standards in a number of respects including, but not limited to: he was unprepared for an accident benefits arbitration; he gave her poor advice concerning a possible Human Rights matter; and he gave her poor advice concerning resolution of the proceedings. The defendant’s Amended Statement of Defence responds on the merits in 37 paragraphs.

[4] The application of subsections 5(1) and (2) 0he Limitations Act, 2002 is a matter of evidence especially for complex causes of action like lawyers’ negligence.

[5] Moreover, whether my decision in another matter is res judicata or raises the doctrines of issue estoppel or abuse of process is certainly not apparent on the face of the pleading. Neither is it obvious to me with my knowledge of the other matter. The fact that the plaintiff was unsuccessful claiming personal liability against the owner of the corporate paralegal clinic which recommended that she retain the defendant for legal services does not seem to be determinative of the standard of services provided by the defendant to the plaintiff or the limitation period as between them. It certainly does not render the plaintiff’s amended claim frivolous, vexatious, or an abuse of process on its face.

[6] There is nothing frivolous or vexatious, or suggesting an abuse of process apparent on the face of the Fresh as Amended Statement of Claim. It appears to have been drafted by a lawyer or at least by someone familiar with proper pleading. Further, there is no indication that the claim is of the type to make the attenuated process of Rule 2.1 appropriate.

[7] The application is dismissed. If the plaintiff has incurred any assessable costs in connection with this Rule 2.1 process, the defendant shall pay the plaintiff such costs forthwith after the assessment thereof by an assessment officer.

F.L. Myers J.

Date: April 27, 2015