ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-4164-00
DATE: 2015-07-22
B E T W E E N:
Darren John
Dareen John, In-person
Plaintiff
- and -
Norbert Bartels
Jane Sirdevan, for the Defendant
Defendant
HEARD: February 23, 2015
REASONS FOR JUDGMENT
Barnes, J.
INTRODUCTION
[1] Mr. Bartels (“the defendant”) was Mr. John’s (“the plaintiff”) lawyer for half a day in a criminal trial. The plaintiff was convicted after a nine-day trial. The plaintiff has commenced an action against the defendant on the basis of negligent representation by the defendant.
[2] The defendant seeks an order for summary judgment on the basis that there is no genuine issue requiring a trial. I have concluded that defendant’s motion shall be dismissed and the matter shall be set for trial.
BACKGROUND FACTS
[3] On February 2012, the defendant was retained by the plaintiff to act, as his lawyer, in his defence of four fraud charges in Peel (“the Peel charges”) and two fraud charges in Halton (“the Halton charges”).
[4] After a nine-day trial, on the Halton charges, Justice Baldwin of the Ontario Court of Justice convicted the plaintiff of two counts of fraud. The convictions were registered on September 11, 2013. The Peel charges and the Halton charges were tried separately.
[5] The plaintiff is alleged to have written two fraudulent cheques at a Burlington Long & McQuade store in October 2010. The main issue at trial was identity.
[6] The defendant represented the plaintiff at the beginning of the criminal trial for half a day. After receiving an unfavourable ruling the plaintiff discharged the defendant as his counsel and represented himself for the balance of the trial.
[7] At the beginning of the trial an agreed statement of facts was filed with the court. The Agreed Statement of Facts confirmed that two store employees who had received the fraudulent cheques could not identify the plaintiff as the perpetrator of the offences.
[8] The Crown introduced a surveillance video from the scene (the “first surveillance video”). The video showed an individual driving a BMW SUV. The plaintiff testified in his own defence. He said that the individual shown in the video was his brother who was the person who committed the crime.
[9] The Crown argued that the plaintiff’s testimony raised an alibi defence and requested an adjournment to investigate the alibi. On the plaintiff’s instructions the defendant opposed the Crown’s request. Justice Baldwin granted the Crown’s request. The defendant says that the plaintiff was not happy with the Judge’s decision.
[10] The plaintiff informed the court that the defendant was not following his instructions. Under those circumstances the defendant requested to be discharged as the plaintiff’s counsel. This request was granted. Over the course of nine scheduled days the trial proceeded to a conclusion. The plaintiff represented himself for the duration of the trial. The plaintiff was convicted.
[11] During the sentencing hearing the plaintiff sought leave of the court to introduce a video recording depicting a potential alternate suspect (the “second surveillance video”). The trial judge denied this request and sentenced the plaintiff.
[12] The plaintiff appealed the conviction and the Ontario Court of Appeal ordered a new trial on the basis that there was a reasonable likelihood that the second surveillance video’s images could have affected the trial verdict.
POSITION OF THE PARTIES
[13] In his statement of claim the plaintiff alleges that the defendant had a bad attitude and seemed to “look down” on him; failed to keep notes; was incompetent; agreed to file the agreed statements of facts contrary to the plaintiff’s instructions.
[14] The plaintiff also alleges that the defendant told the Crown what questions to ask the plaintiff in order to verify his defence; tried to influence the plaintiff to concede that he had a criminal record; forced the plaintiff to take the witness stand against his will; failed to tell the plaintiff that the Crown could call reply evidence.
[15] In his affidavit dated February 17, 2015, the plaintiff alleges that the defendant refused to introduce the second surveillance video recording showing an alternate suspect at the trial. This is the same video footage the Ontario Court of Appeal ruled should have been viewed at trial.
[16] The plaintiff alleges that the defendant failed to bring an application to have the cases in Peel and Halton heard together. The plaintiff further alleged that even though it was not apparent, from the first surveillance video images, the defendant tried to get him to agree that the vehicle in the first surveillance video was the plaintiff’s vehicle.
[17] The plaintiff argues that the effect of all of these actions is professional negligence on the part of the defendant.
POSITION OF THE DEFENDANT
[18] The defendant submits that there is no evidence that he failed to meet the professional standard of care in his representation of the plaintiff; the court cannot conclude that the defendant has failed to meet the required standard of care because the plaintiff has failed to provide expert evidence to indicate that the defendant’s representation failed to meet the requisite standard of care.
[19] According to the defendant a review of the trial proceedings reveals that the plaintiff was given every opportunity to testify, cross examine witnesses, call witnesses in chief, call reply evidence on all facts including the facts set out in the agreed statement of facts. The defendant says he had no knowledge of the existence of the second surveillance video purporting to show an alternate suspect and did not prevent the plaintiff from introducing it at trial.
[20] The defendant submits that the plaintiff represented himself for eight and a half days but did not seek to introduce the second surveillance video showing the alternate suspect. The defendant argues that there is no evidence that the defendant’s failure to warn the plaintiff that the Crown could call reply evidence caused the plaintiff any loss and there is no evidence that the plaintiff has suffered any damages whatsoever.
LAW
[21] Rule 20.04(2)(a) grants the court authority to grant summary judgment if it concludes that there is no geniune issue requiring a trial.
[22] The motions judge shall determine whether there is a geniuine issue requiring a trial on the basis of the material filed at the motion. If there appears to be a genuine issue requiring a trial the trial judge should consider whether the need for a trial can be avoided by using the fact finding powers provided in Rule 20.04: See Hryniak v. Mauldin 2014 SCC 7, [2014] 1 S.C.R. 87.
[23] A need for a trial can be avoided where the judge can reach a fair and just determination on the matter without the need for a trial. This circumstance will typically occur when the process meets these three factors described in Hryniak: “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.” See Hryniak v. Mauldin 2014 SCC 7, [2014] 1 S.C.R. 87.
[24] The plaintiff’s claim is an allegation of professional negligence. The plaintiff must prove that “the defendant’s actions or omissions fell below the generally accepted standard of care that the defendant owed to the plaintiff and caused forseeable damage”: McNeil v. Kansa General International Co. 2000 2279 (O.N.C.A) at para 4.
[25] The standard of care is that of a reasonable competent lawyer who is an expert in criminal law. McNeil at para 5.
[26] A court should not determine the standard of care in a professional negligence case in the absence of expert evidence. The exception to this general rule is where the court is dealing with matters that an ordinary person would be expected to have knowledge of or where the conduct complained about is so egregoius that it is obvious that it falls short of the standard of care: Krawchuk v. Scherbak, 2011 ONCA 352 at paras 130 to 135.
ANALYSIS
[27] The plaintiff has provided no expert evidence to support his assertion that his allegations if proven to be true will constitute conduct by a lawyer that marks a departure from the standard of care that can reasonably be expected from a reasonably competent criminal lawyer.
[28] Therefore, on the basis of the current record, with one exception, I cannot conclude that the allegations raised by the plaintiff, if accepted as proven, will constitute conduct by a lawyer that is a departure from the standard of care that can reasonably be expected from a reasonably competent criminal lawyer.
[29] The one exception relates to the plaintiff’s allegation that the defendant forced him to testify against his will. This allegation, if proven, represents a violation of some fundamental principles of Canadian criminal law. These are the presumption of innocence, the principle against self incrimination and the burden of proof in a criminal trial which always rests with the Crown. These are trite principles and no expert evidence is required to articlulate them.
[30] Therefore, a lawyer who compells a client to testify in a criminal proceeding against his or her will engages in conduct that is so egregious that it is obvious that the conduct falls well below the requiste standard of care. See Krawchuk v. Scherbak, 2011 ONCA 352 at paras 130 to 135.
[31] The plaintiff says that the defendant forced him to testify against his will. The plaintiff testified at trial that he was innocent of the crime and that the surveillance video showed that his brother was the perpetrator of the crimes.
[32] The trial judge concluded that the plaintiff’s evidence that the first survelliance video depicted his brother was false. The trial Judge concluded that the plaintiff lied and this was a significant reason for the trial judge’s rejection of the plaintiff’s testimony.
[33] The link between the plaintiff’s testimony and his subsequent conviction is clear. The question of whether the plaintiff was forced by the defendant to testify or whether the plaintiff voluntarily decided or agreed to testify raises a geniune issue for trial.
[34] The defendant said that plaintiff informed him that he wanted to testify at his trial. The plaintiff says the defendant forced him to testify against his will. The parties are diametrically opposed on this crucial point which strikes at the heart of the solicitor client relationship that existed between the plaintiff and the defendant.
[35] The chiasim between the parties is great and I am not statisfied that this process meets the three Hryniak factors necessary to dispense with the fact finding process of a trial. I am not satisfied that any process other than the painstaking fact finding process at a trial will achieve a just result.
[36] Having reached this conclusion, I make no comment on the other areas of complaint raised by the plaintiff except to make these two observations. After the plaintiff had been convicted and during his sentencing hearing, Justice Baldwin refused his request to reopen the trial and introduce the second surveillance video. Justice Baldwin did not view the contents of the second surveillance video.
[37] After viewing the contents of the second surveillance video the Ontario Court of Appeal ordered a new trial on the basis that the second surveillance video could have had an impact on the trial verdict.
[38] Even if the plaintiff’s alllegation that the defendant did not heed his instruction to introduce the second surveillance videotape during the trial is proven, the plaintiff had ample opportunity to introduce this evidence during the nine day trial and he choose not to do so. In effect, there is no basis on the record before me to conclude that the conduct of the defendant, with respect to this video, in anyway contributed to the trial result.
[39] The second observation is that the Onatrio Court of Appeal has ordered that the Halton charges should be retried. It is reasonable to expect that the outcome of the retrial may have some impact on how this litigation proceeds going forward. I leave it to the parties to sought out any possible impacts.
[40] The parties shall absorb their legal costs.
Original signed by
Barnes, J.
Released: July 22, 2015
COURT FILE NO.: CV-13-4164-00
DATE: 2015-07-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Darren John
Plaintiff
- and –
Norbert Bartels
Defendant
REASONS FOR JUDGMENT
Barnes, J.
Released: July 22, 2015