Turczinski v. Mang et al., 2015 ONSC 2941
CITATION: Turczinski v. Mang et al., 2015 ONSC 2941
COURT FILE NO.: CV-13-494932
DATE: 20150604
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ADELA TURCZINSKI
Plaintiff
– and –
IAN MANG and MANG & STEINBERG PROFESSIONAL CORPORATION
Respondents
COUNSEL:
Jayson W. Thomas, for the Respondents/Plaintiff
Michael R. Kestenberg, for the Moving Party/Defendants
HEARD: April 24, 2015
REASONS
[1] The defendants move for summary judgment on the basis there is no genuine issue for trial. The plaintiff opposes the motion, seeking its own partial judgment on liability and submitting that the negligence of the defendant lawyer and his firm meets the circumstances and material contribution test set out in Clements (Litigation Guardian) v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181.
Background/Facts
[2] I would summarize this matter as follows:
a) The plaintiff has resided at 31 Rushholme Drive since 1985 and in June 2002 commenced an action against her neighbor to the north (Fernandes) for encroaching on her property when, in or about April 1997, the driveway was modified and reduced the size of the plaintiff’s garden along the common boundary (Statement of Claim, paragraphs 6-12).
b) The Statement of Claim sought declaratory relief, an injunction from trespass and damages, including punitive damages, totaling $50,000. The claim was re-issued in November 2002 after the identity of the neighbours changed by virtue of the sale of the property from Fernandes to Da Silva.
c) The action was complicated with the addition of third party claims against counsel over the next six years. Discoveries proceeded and the case was set down for trial in or about January 2008, which generated a trial certification notice sent to both counsel for the plaintiff and counsel for the defendants. The form advised the matter would be struck off the list if pre-trial and trial dates were not obtained prior to January 20, 2009.
d) A key aspect of the background is that counsel for the plaintiff, J. Gordon Hodder of Polten & Hodder, had apparently billed the plaintiff in excess of $100,000 for legal services.
e) Ms. Turczinski’s representation was taken over by Mr. Mang in May 2008. Mr. Mang was initially required to negotiate a financial arrangement to secure the file in face of a solicitor’s lien placed on it by Mr. Hodder. The trial certification form was not amongst the documents provided (Exhibit E to the affidavit of Ian Mang sworn February 3, 2015).
f) Mr. Mang also testified when cross-examined on his affidavit that he spoke to the other counsel to whom the certification notice was apparently sent and was advised the matter was on the trial list (page 12, questions 50-54, cross-examination of Ian Mang April 1, 2015).
g) Mr. Mang (or his firm), however, failed to check or follow up with the trial office despite forwarding a letter dated July 14, 2009, inquiring as to the status of the action (Exhibit I to the affidavit of Ian Mang).
h) Mr. Mang retained a surveyor to determine the extent of the encroachment on the plaintiff’s property and determined it was two to six inches along the 100-foot common boundary.
i) The plaintiff and Mr. Mang were at odds about how to proceed, with Mr. Mang strongly recommending settlement given the minor nature of the damages and the legal costs incurred to date, while the plaintiff was seeking her day in court.
j) Health issues on the part of Mr. Mang and to a lesser extent the plaintiff (who sought input from her sister who lived in California) further delayed matters and pushed back the mediation from March 2011 to November 7, 2011. At mediation, the last offer by the defendants/third parties involved the payment to the plaintiff of $25,000 towards her legal costs, acknowledging the boundary to be as reflected in the survey, executing mutual releases with a confidentiality agreement and the defendants paying the cost of the mediation.
k) As part of the proposal, Mr. Mang agreed to reduce his fees and negotiated a reduction in the outstanding account of the previous counsel (from $40,000 to $18,000) (Exhibit W to the affidavit of Ian Mang). Although the offer was strongly recommended by Mr. Mang, the plaintiff refused the proposal.
l) The plaintiff was steadfast in her rejection of the proposed settlement and her desire to proceed to trial. Mr. Mang explained the risk of proceeding and that the terms sought by the plaintiff were not “something that a Court is likely to give you” (November 25, 2011 letter – Exhibit W to the affidavit of Ian Mang). Mr. Mang also explained the anticipated cost and required retainer to proceed to trial was $60,000 and that the plaintiff should consider alternate representation.
m) The plaintiff chose new counsel, Michael Carlson of Carlson & Kociper, and filed a Notice of Change of Lawyer dated December 12, 2011.
n) Importantly, the defendant advised the plaintiff in a letter December 12, 2011 of, amongst other risks, that “Given the age of this action, it strikes me that one of the first things that will happen is that the defendants will move to dismiss the proceeding for delay.” (Exhibit BB to the affidavit of Ian Mang).
o) By March 14, 2012, the defendant had written the plaintiff advising her that her new lawyer had been in contact with him looking for information “on listing the matter for trial”. He stated, “While I have no objection to providing information, I am not about to get into any expenditure of time for the obvious reason that you have not paid me for the time already spent on your behalf”. This related to Mr. Mang’s outstanding account of $8,961 (Exhibit CC to the affidavit of Ian Mang).
p) The next action, not surprisingly, after letters from defence counsel at the end of October 2012, was a motion to dismiss the action for delay. That motion proceeded March 12, 2013, with reasons released April 19, 2013, in which the action was dismissed with a decision on costs to follow. The motion was apparently argued by Mr. Carlson on behalf of the plaintiff. In his reasons, Justice Aston noted the “explanation for delay is inadequate.” He also noted the plaintiff’s “current lawyer has represented her since shortly after an unsuccessful mediation in the Fall of 2011. However, no steps were taken to restore the case to the trial list until a year after that and only in response” to the motion for dismissal for delay. Further, “counsel for the plaintiff has presented no timetable or litigation plan and cannot advise when the case could be pre-tried or tried. (Exhibit HH to the affidavit of Ian Mang).
q) Justice Aston’s dismissal of the action was appealed, and the appeal dismissed on October 10, 2013. Costs awarded against the plaintiff in favour of the defendants totalled $57,750 (Exhibit II to the affidavit of Ian Mang).
r) This Statement of Claim was issued January 15, 2014 with the plaintiff acting on her own behalf. Her counsel, who explained his representation was a limited scope retainer under r. 15.01.1(2), confirmed he drafted the Statement of Claim and was unaware of any companion action commenced against either Mr. Hodder or Mr. Carlson. The plaintiff was content to rely on the full and thorough materials prepared and filed by the defendants.
Analysis-Genuine Issue for Trial
[3] The recent decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, requires the Court to determine if the necessary findings of fact can be made from the evidence and the law applied to those facts, and a just result achieved through the summary judgment process as opposed to a trial. The goal is to receive a fair and just adjudication for the parties and involves consideration of whether proceeding to trial in the circumstances is necessary, proportionate or cost effective. In my view, Mr. Mang and his firm are entitled to succeed. While they may not have been perfectly diligent in determining the status of the action when they began representing the plaintiff, this is overwhelmed by the fact that the action was not dismissed for delay while the Mr. Mang was acting as counsel for the plaintiff. I am reinforced in this conclusion by the clear and written warning provided to the plaintiff in the letter dated December 12, 2011, anticipating a motion to dismiss for delay. There is no evidence as to what justified the succeeding solicitor, Mr. Carlson, waiting for the dismissed for delay motion before attempting to restore the matter to the trial list with materials inadequate to explain the delay (and particularly his own).
[4] Counsel for the plaintiff submitted Mr. Mang had not met the standard of care and skill which can be demanded from a solicitor which is that of a reasonably competent and diligent solicitor. In this regard, I am unable to conclude Mr. Mang and his firm have failed to meet that standard when they had been advised that the matter was on the trial list, had determined settlement was the best advice to give the plaintiff and secured the most favourable offer the plaintiff received and turned over the file to new counsel while the action was still alive. Further, there was written warning of the need to deal with the delay issue.
[5] As noted by Justice Sharpe in Fasken Campbell Godfrey v. Seven-Up Canada Inc. (1997), 1997 12305 (ON SC), 142 D.L.R. (4th) 456 at paragraph 54, “The duty to warn is an integral part of the solicitor’s standard of care and a solicitor may be found negligent if he fails to warn his client about the risks involved”. In this matter, it seems clear the defendants warned the plaintiff of precisely the risk which resulted in dismissal of her action.
[6] Plaintiff’s counsel also raised an argument that the plaintiff need not prove that her likelihood of success was on a balance of probabilities. Indeed, Mr. Mang acknowledged to her, in writing, that she would likely be successful in obtaining the substantive relief of having the property in dispute declared as hers. The problem was in recovering the disproportionate amount she had spent on legal fees to do so. While the Court would accept there was a prospect the plaintiff would recover in excess of the $25,000 in costs offered at the mediation, the Court must also acknowledge that settlements are to be encouraged and in order to achieve same, some compromise to a party’s best position must be made. This clearly appears to have been a situation where proportionality would have been an important factor.
[7] The plaintiff also relied on Clements (Litigation Guardian of) v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, which reviewed the basis for applying a material contribution to risk approach. As noted in paragraph 46 of the decision, the general rule is the plaintiff cannot succeed unless she shows, as a matter of fact, she would not have suffered the loss “but for” the negligent act or acts of the defendant. Scientific proof of causation is not required and the judge is to take a “robust and pragmatic approach to determining” if a plaintiff has established the defendant’s negligence caused her loss.
[8] It is only in the exceptional case where it is impossible or plaintiff is unable to show any one of the possible tortfeasors was negligent that the material contribution test should apply. In this situation, in the Court’s view (and without the benefit of materials detailing same), this argument would have required “two or more tortfeasors” named as parties and argument as to why liability should be imposed on Mr. Mang and his firm as opposed to the subsequent counsel.
[9] Counsel for the plaintiff acknowledged that the issue of whether Mr. Mang and his firm caused the plaintiff’s losses is appropriately determined on a summary judgment motion. I agree but reach the conclusion that on the evidence presented, a fair and just result is that this action be dismissed.
Costs
[10] Counsel for the plaintiff submitted a cost outline in the amount of $5,951.72 for partial indemnity costs and $7,278.62 for substantial indemnity costs. Counsel for Mr. Mang and his firm agreed that in the event the plaintiff was successful, those costs were appropriate. No doubt they were influenced by the cost outline of Mr. Mang and his firm in the amount of $36,732.38. While there may well be justification for the costs of Mr. Mang and his firm, as moving parties and having prepared extensive materials, the gap in proposed costs is perplexing. In my view, the amount sought by the moving parties is excessive despite the able submissions of counsel and the quality of the materials provided. I would fix costs at $20,000 inclusive of fees, HST and disbursements to be payable by the plaintiff to the defendants, if demanded. The “if demanded” aspect to the cost award is a recognition that the plaintiff does not appear to have been well served in the legal representation provided to her although her decision to reject legal advice provided to her is no doubt a factor in the unfortunate circumstances and outcome described above.
Mr. Justice G. Dow
Released: June 4, 2015
CITATION: Turczinski v. Mang et al., 2015 ONSC 2941
COURT FILE NO.: CV-13-494932
DATE: 20150604
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ADELA TURCZINSKI
Plaintiff
– and –
IAN MANG and MANG & STEINBERG PROFESSIONAL CORPORATION
Respondents
REASONS FOR JUDGMENT
Mr. Justice G. Dow
Released: June 4, 2015