ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 15-CV-528484
DATE: 20150911
BETWEEN:
THI BINH NGUYEN
Plaintiff
– and –
MILLER THOMSON LLP and GORDON L. ROBSON
Defendants
Thi Binh Nguyen, in person
Genevieve Durigon, for the Defendants
HEARD: September 1, 2015
K. HOOD J.
REASONS FOR DECISION
[1] While the defendants, in their notice of motion, seek an order to dismiss the plaintiff’s action, it is really a motion by the defendants to strike the plaintiff’s claim under Rule 21.01(1)(b) or to stay the action under Rule 21.01(3)(d). The defendants also move under Rules 25.06 and 25.11 to strike the claim for violating the rules of pleading.
[2] Leaving aside the argued deficiencies in the pleading under Rules 25.06 and 25.11, the defendants are arguing that the claim discloses no reasonable cause of action. As set out in Hunt v. Carey Canada Inc., [1990] 2 SCR 959, 1990 90 (SCC) at paras. 33-36, in considering a motion under Rule 21.01, I must take the facts pleaded in the claim as proven and only strike the claim if it is plain and obvious that the claim cannot succeed.
[3] I am satisfied it is plain and obvious the pleading discloses no cause of action and must be struck. The plaintiff did not ask for leave to amend the claim if struck. However, I am of the view that her claim cannot be remedied by any amendment or any improved drafting in compliance with Rule 25.06. If asked, I would not have granted leave.
[4] The facts as set out in the claim are as follows:
the plaintiff was in a motor vehicle accident in January 23, 2003
as a result she was unable to work and unable to carry on a normal life
she claimed her accident benefits including caregiver and non-earner benefits from her insurer, Economical Insurance
at all times the defendants were the lawyers for Economical
on August 22, 2013, the plaintiff and Economical reached a settlement agreement
in exchange for a release of her accident benefits claim, Economical was to pay her $157,500
to date, no settlement funds have been provided to her nor has she been provided with what is called a Disclosure Notice, which is the equivalent of a release.
[5] The plaintiff alleges that, based upon these facts, the defendants have caused financial damages and mental distress to the plaintiff due to the defendants’ negligence, misconduct and misrepresentations.
[6] The only connection between the plaintiff and the defendants, as pleaded, arises from their legal representation of Economical.
[7] The case law is clear that opposing counsel owes no duty of care to the opposite party. To hold otherwise would put lawyers in an untenable conflict between their duty to their client and their need to protect themselves against their client’s adversary. This applies equally to the negligence claim and the claim of misrepresentation: see para. 40 Sheppard v. McKenzie, 2009 38490 (ON SC), [2009] O.J. No. 3112; and para. 28, Geo. Cluthe Manufacturing Co. v. ZTW Properties Inc., (1995) 23 OR (3d) 370, 1995 10684 (ON SC).
[8] As to the misconduct claim, again there is no duty owed to the opposite party. Any duty is owed to the court and to the lawyers’ governing body: see Brignolio v. Desmarais, Keenan, [1995] O.J. No. 3499, 1995 CarswellOnt. 4761.
[9] The plaintiff, in response to the defendants’ arguments, said she has evidence against the defendants and wants to go to trial where she can present this evidence. She also relies on a motion she is bringing before the Master on October 8, 2015, in this action, for an order to examine three employees of Economical for discovery.
[10] None of this addresses the pleading or whether it discloses a cause of action.
[11] If, as the plaintiff alleges, she had a settlement with Economical which Economical has breached, her option is to sue Economical, not their lawyers.
[12] The plaintiff’s claim is struck out. Presumptively, the defendants are entitled to costs. I was provided with a costs outline from the defendants. The plaintiff did not have any costs outline or bill of costs. The parties may submit brief written submissions as to costs, not to exceed three pages in length. The defendants’ submissions are to be delivered within 15 days of today’s date and the plaintiff’s within 15 days thereafter.
[13] The defendants do not have to obtain the consent of the plaintiff as to the form and content of the order. Once I have made my costs order the defendants may provide me with an order for execution.
K. HOOD J.
Released: September 11, 2015
COURT FILE NO.: 15-CV-528484
DATE: 20150911
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
T.B. NGUYEN
Plaintiff
– and –
MILLER THOMSON LLP and GORDON L. ROBSON
Defendants
REASONS FOR DECISION
K. HOOD J.
Released: September 11, 2015