COURT FILE NO.: CV-12-00461392

DATE: 20151008

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

CHRISTIANE TETREAULT

Self-represented

• and -

BARRY NUSSBAUM

David Silver and Kalev Anniko for Barry Nussbaum

HEARD: July 15, 2015

REASONS FOR DECISION

CORRICK J.

Introduction

[1] This is a solicitor negligence case.

[2] On August 15, 2012, the plaintiff, Christiane Tetreault, issued a claim against the defendant, Barry Nussbaum, a solicitor, alleging among other things, breach of fiduciary duty, negligence, and breach of contract. The claim arises from what Ms. Tetreault alleges was Mr. Nussbaum’s negligent representation of her company, T.S. Publishing Inc., in the prosecution of an injunction application against Tarwinder Shokar and Olga Kondratowicz.

[3] Following discoveries, Mr. Nussbaum brought a motion for summary judgment, which was originally scheduled to be heard on March 20, 2014. I heard that motion, together with a cross-motion by Ms. Tetreault to amend her Statement of Claim, on July 15, 2015.

[4] At the outset of the hearing, Ms. Tetreault requested an adjournment, which I denied. I will outline my reasons for denying the request after I set out the procedural history of this action.

Underlying Action

[5] T. S. Publishing Inc. was in the business of publishing the "Local Menu Guide," which advertised menus from local restaurants in the Toronto area. It earned advertising revenue from the restaurants listed in the guide. Ms. Tetreault asserts that she is the owner of T. S. Publishing and that Shokar and Kondratowicz, two former employees of the company, misappropriated funds and assets from the company. Additionally, Ms. Tetreault alleges that Shokar and Kondratowicz usurped control of T. S. Publishing’s website, preventing Ms. Tetreault from contacting its customers.

[6] A Statement of Claim was issued on August 6, 2010. T.S. Publishing Group Inc. was the plaintiff and Tarwinder Shokar and Olga Kondratowicz were the defendants. The claim in the underlying action was not prepared by Mr. Nussbaum, but rather by another lawyer who had incorporated T. S. Publishing in April 2009. This lawyer also prepared the initial injunction material on behalf of T. S. Publishing.

[7] On August 11, 2010, Ms. Tetreault retained Mr. Nussbaum on behalf of T. S. Publishing to review the injunction material prepared by the other lawyer, and to argue the injunction application to prevent Shokar from operating T. S. Publishing and misappropriating its customers and revenues.

[8] On August 16, 2010, Mr. Nussbaum attended before Justice Grace and obtained an ex parte injunction enjoining Shokar and Kondratowicz until August 27, 2010 from dealing with T. S. Publishing’s website, conditional on T. S. Publishing executing and filing an undertaking as to damages that same day. Justice Grace directed that the defendants be served with the Statement of Claim, the motion materials, and a copy of his endorsement forthwith. He adjourned the motion to August 27, 2010 in Motion Scheduling Court before him to address, among other things, whether the interim injunction should continue, and to schedule a return date for the motion.

[9] Mr. Nussbaum filed an unsigned undertaking as to damages. Shokar was served with the materials. Kondratowicz was not. The materials served on Shokar included an unsworn affidavit of Ms. Tetreault.

[10] Shokar and Kondratowicz filed responding materials on August 26, 2010. In the material, Kondratowicz alleged that she owned the "Local Menu Guide" name, and that Shokar owned T S. Publishing.

[11] The parties appeared before Justice Grace on August 27, 2010 in Motion Scheduling Court. After hearing submissions and reading the material filed by the parties, Justice Grace decided that, in light of the opposing views of the parties on the issue of the ownership of T S. Publishing, it was not appropriate to extend the injunction that day because the matter was to be addressed by him only on an interim basis in Motion Scheduling Court. He ruled that a full motion was required, and scheduled a two-hour hearing on November 12, 2010.

[12] Justice Grace also made an interim order requiring Shokar and Kondratowicz to operate the business in the ordinary course; incur no extraordinary expenses or make any out of the ordinary disposition of business assets without the consent of Ms. Tetreault; maintain complete and accurate financial records; and provide Ms. Tetreault with copies of the records every second Friday. Finally, Justice Grace provided that Ms. Tetreault could seek relief on two days' notice in the event of a breach of the terms.

[13] By September 6, 2010, Ms. Tetreault had decided to retain other counsel. On November 3, 2010, Ms. Tetreault's new counsel, Ms. Walker, contacted the court office to determine if the injunction application would proceed on November 12. She was advised that it would not because the date had not been confirmed by Mr. Nussbaum. Ultimately the matter was settled on December 1, 2010, and an injunction application was unnecessary.

Action Against Mr. Nussbaum

[14] In 2010, Ms. Tetreault commenced a proceeding to assess Mr. Nussbaum's legal fees, which she subsequently abandoned.

[15] An action against Mr. Nussbaum was commenced by a Statement of Claim that was issued on August 15, 2012. Ms. Tetreault is the named plaintiff. The Statement of Claim sought, among other things, $100,000 in damages for breach of fiduciary duty, negligent and/or intentional misrepresentation, negligence and/or breach of contract.

[16] The Statement of Claim alleged the following against Mr. Nussbaum:

❏ he failed to name Shokar Publishing Group and Habhajan Shokar as defendants;

❏ the materials he prepared for the injunction application were deficient;

❏ he failed to name the Canadian Internet Registration Authority and Netfirms as defendants despite seeking an order directing them to do something;

❏ he should have brought the injunction application on notice to the defendants;

❏ he failed to file a undertaking as to damages signed by Ms. Tetreault on the injunction application;

❏ he failed to serve a sworn copy of Ms. Tetreault's affidavit on the defendants;

❏ he failed to serve Kondratowicz in accordance with Justice Grace's order;

❏ he failed to confirm the November 12, 2010 motion date with the court; and

❏ his presentation of evidence before Justice Grace on August 16 and 27, 2010 fell below the standard of care expected.

[17] The parties each served Affidavits of Documents and were subsequently examined for discovery on April 23, 2013.

[18] On October 8, 2013, Mr. Nussbaum's counsel informed Ms. Tetreault's counsel that he was bringing a summary judgment motion. On October 22, 2013, Justice Frank set March 20, 2014 as the hearing date for the motion.

[19] Mr. Nussbaum served his factum for the summary judgment motion on February 21, 2014. In it, he stated that Ms. Tetreault had suffered no damages and that any cause of action being alleged belonged to T. S. Publishing, rather than to Ms. Tetreault. In other words, the action against him by Ms. Tetreault violated the rule in Foss. v. Harbottle[^1]. Ms. Tetreault had brought the action in her personal capacity as sole director, officer and shareholder of T. S. Publishing, and T.S. Publishing was not named as a plaintiff.

[20] In response, on March 7, 2014, T. S. Publishing irrevocably assigned to Ms. Tetreault all causes of action and claims it had against Mr. Nussbaum arising from his representation of T. S. Publishing during the period between August and October 2010. The assignment was retroactive to August 1, 2010. It was served on Mr. Nussbaum's counsel on March 7, 2014.

[21] On June 11, 2014, Mr. Nussbaum filed a supplementary factum asserting that the rights assigned to Ms. Tetreault by T. S. Publishing were subject to any defences Mr. Nussbaum could have raised against T. S. Publishing. Any claims T. S. Publishing had against Mr. Nussbaum were barred by the Limitations Act, 2002 at the time the assignment was executed on March 7, 2014, and therefore T. S. Publishing had nothing to assign to Ms. Tetreault.

[22] In response, Ms. Tetreault filed a motion dated June 27, 2014 seeking leave to amend the Statement of Claim to add T. S. Publishing as a plaintiff to the action ab initio and nunc pro tunc to the date the Statement of Claim was issued. In the Notice of Motion, Ms. Tetreault asserts that T. S. Publishing was not named as a plaintiff as a result of a misnomer.

Ms. Tetreault's Application for an Adjournment

[23] As I have already indicated, I denied Ms. Tetreault's request for an adjournment for the following reasons.

[24] Mr. Nussbaum's motion for summary judgment was first before the court on October 22, 2013. The hearing of it was adjourned six times before I heard it on July 15, 2015, nearly two years later. What follows is the chronology of hearing dates.

October 22, 2013

Motion set to be heard on March 20, 2014

March 20, 2014

Motion adjourned on consent to June 19, 2014

June 19, 2014

Motion adjourned on consent to September 19, 2014.

September 19, 2014

Motion adjourned to October 7, 2014 in Motion Scheduling Court because Ms. Tetreault's cross motion to amend the Statement of Claim had not been properly filed.

October 7, 2014

Motion adjourned to December 4, 2014, peremptory to Ms. Tetreault.

December 4, 2014

Motion to amend Statement of Claim adjourned to March 3, 2015 before a Master.

March 3, 2015

Master adjourned summary judgment motion and motion to amend to May 29, 2015 to be heard together by a judge.

March 24, 2015

May 29 motion date vacated. Motion adjourned to July 8, 2015.

June 30, 2015

Ms. Tetreault's application for an adjournment of July 8, 2015 hearing date denied.

July 8, 2015

Mr. Ostrom appeared on behalf of Ms. Tetreault, and sought an adjournment on the basis that Ms. Tetreault's counsel, Ms. Walker was ill. Hearing adjourned to July 15, peremptory to Ms. Tetreault.

July 15, 2015

Ms. Tetreault requested an adjournment to seek new counsel, having served a Notice of Intention to Act in Person on July 14, 2015 at 3:45 p.m.

[25] Although not apparent from the court records, Mr. Ostrom and Mr. Silver advised me that the matter had been marked peremptory to Ms. Tetreault on two occasions prior to July 8, 2015. Counsel also advised me that the motion had been adjourned once before July 8, 2015 due to Ms. Tetreault's counsel's illness.

[26] Justice Perell in Ariston Realty Corp. v. Elcarim Inc.[^2] listed a number of factors the court should consider when faced with an adjournment request. These include the following:

❏ the over-all objective of a determination of the matter on its substantive merits;

❏ the principles of natural justice;

❏ that justice not only be done but appear to be done;

❏ the particular circumstances of the request for an adjournment and the reasons and justification for the request;

❏ the practical effect or consequences of an adjournment on both substantive and procedural justice;

❏ the competing interests of the parties in advancing or delaying the progress of the litigation;

❏ the prejudice not compensable in costs, if any, suffered by a party by the granting or the refusing of the adjournment;

❏ whether the ability of the party requesting the adjournment to fully and adequately prosecute or defend the proceeding would be significantly compromised if the adjournment were refused;

❏ the need of the administration of justice to process civil proceedings in an orderly manner; and

❏ the need of the administration of justice to enforce court orders effectively.

[27] Of particular concern to me was the fact that this motion had been adjourned six previous times and had been marked peremptory to Ms. Tetreault three times. Justice Himel had denied Ms. Tetreault's request on June 30, 2015 to adjourn the July 8, 2015 hearing date citing the history of the litigation, the number of times the motion had been adjourned, the fact that it had been marked peremptory, and the length of time the action had been outstanding against the solicitor. By the time the motion was set to be heard by me on July 15, it had been adjourned yet again and had been marked peremptory to Ms. Tetreault for a third time.

[28] Ms. Tetreault served a Notice of Intention to Act in Person at 3:45 p.m. the day before the motion was scheduled to be argued, and after her counsel had been denied an adjournment on June 30, 2015, and after the matter had been adjourned due to her counsel's illness and marked peremptory to Ms. Tetreault. Ms. Walker, Ms. Tetreault's counsel of record, did not attend to be removed as counsel of record. Mr. Silver informed the court that Ms. Walker continues to act for Ms. Tetreault in the underlying action.

[29] Ms. Tetreault seeks to abuse the process of the court in order to delay, yet again, the hearing of this summary judgment motion. This action has been outstanding against Mr. Nussbaum for three years. This motion has been outstanding for nearly two years. The court has scheduled this motion on six different dates. Each time, between two hours and half a day has been set aside for the hearing. The court has been unable to process this proceeding in an orderly fashion.

[30] A court has ordered that the matter be peremptory to Ms. Tetreault three times. Such an order is intended to mean something.

[31] Although Ms. Tetreault submitted that she is unable to present her argument on the summary judgment motion, I have the benefit a voluminous written record, and comprehensive written argument that her counsel, Ms. Walker, had filed.

[32] Given the history of this litigation and this motion and the merits of the claim, I exercised my discretion and denied Ms. Tetreault's request for an adjournment.

[33] I turn now to the merits of Mr. Nussbaum's motion for summary judgment and Ms. Tetreault's cross-motion for leave to amend the Statement of Claim to add T. S. Publishing as a plaintiff on the basis of misnomer.

Motion for Leave to Amend

[34] Ms. Tetreault seeks leave to amend the statement of claim to add T. S. Publishing as a plaintiff and to correct the defendant's name to read "Dov Barry Nussbaum". The disputed issue is the proposed amendment to add T. S. Publishing.

[35] Rule 5.04(2) of the Rules of Civil Procedure provides that a court may add a party or correct the name of a party if the party is incorrectly named, unless prejudice would result that could not be compensated by costs or an adjournment. This discretionary power is limited by s. 21(1) of the Limitations Act, 2002, which prohibits the addition of a party to an existing proceeding if a limitation period in respect of a claim against the person has expired. The Court of Appeal for Ontario has held that this section applies equally to the addition of plaintiffs and defendants.[^3]

[36] It is not contested that the two-year limitation period for T. S. Publishing to sue Mr. Nussbaum has expired.[^4]

[37] Ms. Tetreault argues that she is not seeking to add T. S. Publishing as a plaintiff, but is seeking to correct the misnaming of the plaintiff. She relies on s. 21(2) of the Limitations Act, 2002, which provides that the expiry of a limitation period "does not prevent the correction of a misnaming or misdescription of a party."

[38] The issue to be determined is whether the proposed amendment corrects the name of a party or adds a party. I find that this is not a case of misnomer, but rather an attempt to add a new plaintiff.

[39] The parties agree on the applicable legal test for misnomer as set out in Lloyd v. Clark.[^5] There must be a coincidence between the plaintiff's intention to name a party and the intended party's knowledge that it was the intended defendant. Where such a coincidence exists, an amendment may be made to correct a misnomer despite the expiration of the limitation period.

[40] The evidence before me demonstrates that Ms. Tetreault made a deliberate decision to commence this action in her name alone. In an affidavit filed in support of this cross-motion, Ms. Tetreault affirmed that she decided not to name T. S. Publishing as a plaintiff because it had ceased operations, and she considered it more appropriate to commence the action in her personal name. When she was examined for discovery, she testified that she had suffered damages personally.

[41] The history of this litigation is also instructive in determining whether Ms. Tetreault intended to name T. S. Publishing as a plaintiff. When Mr. Nussbaum raised the issue of the rule in Foss v. Harbottle in his factum dated February 21, 2014, Ms. Tetreault did not bring a motion to amend the Statement of Claim to add T. S. Publishing as a plaintiff on the basis of misnomer. Instead, T. S. Publishing irrevocably assigned to Ms. Tetreault all "claims and causes of action" against Mr. Nussbaum arising from his representation of T. S. Publishing between August and October 2010. This was a deliberate decision of Ms. Tetreault that is inconsistent with her assertion that her failure to name T. S. Publishing as a plaintiff is a misnomer.

[42] Ms. Tetreault relies on the decision of Mazzuca v. Silvercreek Pharmacy Ltd.[^6] for the proposition that the court must focus its analysis on whether the amendment would cause non-compensable prejudice. She submits that in this case Mr. Nussbaum is not prejudiced by the proposed amendment. Mazzuca was decided prior to the amendments to the Limitations Act, which expressly prohibit adding a party after the expiry of a limitation period, except in the case of a misnomer. It was also decided on the basis of the "special circumstances" doctrine, which the Court of Appeal has held did not survive the enactment of the Limitations Act, 2002.[^7]

[43] I have considered the other decisions relied upon by Ms. Tetreault in support of her submission that this is a case of misnomer, and find that they are distinguishable. In most of the cases, the motion judge found as a fact that the party seeking to add a party after the expiration of the limitation period on the basis of misnomer had intended to name the party.[^8] The litigation in the case of Gladstone v. Canadian National Transportation Ltd.[^9] was not subject to the Limitations Act, 2002, and was decided on the basis of the "special circumstances" doctrine.

[44] More instructive are those cases where the court found that the choice of party was a deliberate one. In those cases, the court denied the proposed amendment to add a party after the expiry of the limitation period on the basis of misnomer.[^10]

[45] In my view, Ms. Tetreault is not seeking to correct the name of the plaintiff. The evidence is that she intentionally named herself as plaintiff. She is now seeking to add a party to the claim after the expiration of the limitation period. As a result, her cross-motion to amend is dismissed.

[46] In light of my determination on the misnomer motion, it is unnecessary to deal with Mr. Nussbaum's submissions on the doctrines of election and abuse of process.

Summary Judgment Motion

[47] Mr. Nussbaum moves for summary judgment on the basis that Ms. Tetreault has not established that she has suffered any damages, and without proof of damages, she has no cause of action. He further submits that, in any event, Ms. Tetreault has not established that Mr. Nussbaum's actions caused the damages allegedly suffered.

[48] Ms. Tetreault argues that Mr. Nussbaum has engaged in delay tactics, including bringing this summary judgment motion, that have slowed the progress of this litigation, and the court should not reward such tactics by granting summary judgment. In addition, she argues that this is not an appropriate case for summary judgment because significant factual issues remain in dispute that will require the court to make findings of credibility. She argues that a mini-trial would permit the court to adjudicate the matter fairly.

[49] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if satisfied that "there is no genuine issue requiring a trial with respect to a claim or defence".

[50] In Hryniak v. Mauldin[^11], the Supreme Court of Canada held that there will be no genuine issue requiring a trial when the court can justly and fairly adjudicate the dispute on a summary judgment motion. "This will be the case when the process (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."[^12]

[51] On a motion for summary judgment, the court will assume that both parties have put their best foot forward by placing before the court all of the evidence they would have adduced at trial.[^13]

[52] Mr. Nussbaum bears the onus to demonstrate to the court that there is no genuine issue requiring a trial.

[53] In this case, I am confident that I can find the necessary facts and apply the relevant law based on the record before me, and that it is in the interests of justice to proceed by summary judgment.

[54] I do not accept that Mr. Nussbaum delayed the progress of this litigation or that this motion is a delay tactic by Mr. Nussbaum. The Statement of Claim was issued on August 15, 2012. An amended Statement of Defence was filed on October 5, 2012. Ms. Tetreault served an Affidavit of Documents on March 8, 2013 and a Supplementary Affidavit of Documents on April 23, 2013. Mr. Nussbaum served his Affidavit of Documents on March 20, 2013. Both parties were examined for discovery on April 23, 2013. On October 8, 2013, Mr. Silver wrote Ms. Walker and informed her that he had instructions to bring a summary judgment motion. The motion was first before the court on October 22, 2013. The motion has been adjourned several times, including twice because Ms. Tetreault's counsel was ill and once because her motion to amend the Statement of Claim had not been properly filed.

[55] At the heart of this summary judgment motion is whether there is evidence that Ms. Tetreault sustained damages, for without damages, she has no cause of action against Mr. Nussbaum.

[56] Ms. Tetreault alleged damages in paragraph 33 of the Statement of Claim. They include loss in damage to T. S. Publishing's goodwill and loss of revenue to T. S. Publishing. No damages specific to Ms. Tetreault are alleged in the Statement of Claim.

[57] At her examination for discovery, when asked what damages she had personally sustained, Ms. Tetreault replied, "Well, I mean, in terms of income and revenue and my time spent. You know, it's been stressful." She further testified that her business, T. S. Publishing, had not grown as she had expected.

[58] Ms. Tetreault, when represented by counsel, was also asked at the examination for discovery to produce her financial statements and income tax returns for 2010 - 2013 to support her claim that she had suffered a personal loss. Ms. Tetreault refused to produce these documents on the basis that they are not relevant. She did so at her own peril and they were not before me for review.

[59] There is no evidence before me on this record to demonstrate that Ms. Tetreault has suffered damages as a result of the actions of Mr. Nussbaum. I am entitled to assume that the parties have advanced their best case and that the record contains all of the evidence that the parties will present at trial. Ms. Tetreault has failed to present evidence to indicate that there is a triable issue on this point, and Mr. Nussbaum has met the onus of showing that he should be granted summary judgment. Mr. Nussbaum's motion for summary judgment is therefore granted, and the action is dismissed.

[60] Given this finding, it is unnecessary to consider the further arguments of Mr. Nussbaum.

[61] Mr. Nussbaum may submit a costs outline and written submissions on costs totaling no more than three pages within 14 days of the release of these reasons. Ms. Tetreault may submit the same within 14 days thereafter.

Corrick J.

Released: October 8, 2015

Footnotes

[^1]: (1843), 67 E.R.189
[^2]: 2007 13360 (ON SC), [2007] O.J. No. 1497 (Ont. S.C.J.)
[^3]: Streamline Foods Ltd. v. Jantz Canada Corp. 2012 ONCA 174
[^4]: On July 8, 2015, Mr. Ostrom appeared before me on behalf of Ms. Tetreault to seek an adjournment. At that time, he indicated that the fact that the limitation period had expired was not disputed.
[^5]: 2008 ONCA 343 at para. 4
[^6]: (2001) 2001 8620 (ON CA), 56 O.R. (3d) 768 (Ont. C.A.)
[^7]: Joseph v. Paramount Canada's Wonderland 2008 ONCA 469
[^8]: For example, see Bank of Montreal v. Usling 2013 ONSC 5973; Casselman v. Casselman 2014 ONSC 1267; Hastings v. Halton Condominium Corp. to 324 2013 ONSC 175 where the defendant's name was unintentionally deleted from the style of cause; Ormerod (Litigation guardian of) v. Strathroy Middlesex General Hospital 2009 ONCA 697; Stekel v. Toyota Canada Inc. 2011 ONSC 6507, 2011ONSC 6507; Wolfe v. Wyeth 2013 ONSC 7867.
[^9]: 2009 38789 (ON SCDC), [2009] O.J. No. 3118 (S.C.J.)
[^10]: For example, see Streamline Foods Ltd v. Jantz Canada Corp. 2012 ONCA 174; Marcovitch v. Kertes 2010 ONSC 6062; Veerella v. Khan, [2009] O.J. No. 4111 (S.C.J.); First Gulf Bank v. Collavino Inc. 2013 ONSC 4630; Coffee Culture Systems Inc. v. Krukowski 2013 ONSC 1588, affirmed at 2014 ONCA 61.
[^11]: 2014 SCC 7
[^12]: Hryniak at para. 49
[^13]: Sweda Farms Ltd. v. Egg Farmers of Ontario 2014 ONSC 1200, aff'd at 2014 ONCA 878