Meehan v. Good, 2016 ONSC 2110

CITATION: Meehan v. Good, 2016 ONSC 2110

COURT FILE NO.: CV-13-471987

DATE: 2016/03/29

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

MICHAEL MEEHAN, ANNE MEEHAN, MICHAEL MEEHAN, KATARINA MEEHAN, KATHLEEN MEEHAN and ANTHONY MEEHAN, BY HIS LITIGATION GUARDIAN ANNE MEEHAN

G. Joseph Falconeri, counsel for the Plaintiffs

Plaintiffs

• and -

DONALD GOOD, DONALD R. GOOD PROFESSIONAL CORPORATION, O/A DONALD R. GOOD & ASSOCIATES, IAN SATUFFER, JOHN CARDILL, TIERNEY STAUFFER LLP

Joseph Obagi, counsel for the Defendant John Cardill

Allan R. O’Brien, counsel for the Defendants Ian Stauffer and Tierney Stauffer

Mark Charron, counsel for the Defendants Donald Good and Donald R. Good Professional Corporation

Defendants

HEARD: March 1, 2016, at Ottawa, Ontario

MADAM JUSTICE B. R. WARKENTIN

REASONS ON MOTION FOR SUMMARY JUDGMENT

1The defendant, John Cardill, (Cardill) seeks an Order granting him summary judgment regarding the plaintiffs’ claims as against Cardill on the ground that there is no genuine issue requiring a trial.

2Cardill is one of the defendants in this action commenced by the two principle plaintiffs, Michael Meehan and Anne Meehan, (the plaintiffs) against their former solicitors, Donald Good, Ian Stauffer and Cardill, as well as their respective law firms alleging negligence stemming from settlements the plaintiffs entered into after a motor vehicle accident that occurred on September 16, 1999 (the “MVA”).

3The MVA resulted in catastrophic injuries to the plaintiffs, particularly to Anne Meehan. The evidence in this proceeding supports their position that their former solicitor, Donald Good may have been negligent in his handling of the actions related to one or more of their claims stemming from the MVA. Unfortunately for the plaintiffs, they did not pursue their claims in negligence prior to the expiration of the two year limitation period. They now seek to recover as against Cardill for failing to advise them of their rights in negligence and the running of the limitation period.

Facts Regarding the MVA and the involvement of Cardill

4The plaintiffs retained Donald Good in approximately 1997 to represent them in unrelated matters and then again in 1999 following the MVA. Mr. Good was retained to represent the plaintiffs in both a tort action and the accident benefits claims arising as a result of personal injuries sustained in the MVA.

5The accident benefits claims were resolved by negotiated settlement on June 16, 2005. Mr. Good then engaged Ian Stauffer to assist him in securing a settlement of the tort action which was resolved on January 18, 2007 at which time the plaintiffs executed a full and final release.

6Shortly after the settlement, Mr. Good submitted his final account to the plaintiffs for his services. The plaintiffs were not satisfied with the amount Mr. Good charged and brought an application to assess Mr. Good’s account pursuant to the Solicitors’ Act. At some point in the spring of 2007 they retained Frank E. MacMillan to represent them in the assessment.

7Mr. MacMillan ended his retainer with the plaintiffs in January 2008 at the pre-hearing for the account assessment. The plaintiffs withdrew their application for an assessment at around the same time; however, Mr. Good then sought to have his accounts assessed and started his own application for an assessment of his accounts.

8Mr. MacMillan referred the plaintiffs to Cardill to continue with the assessment. The plaintiffs first met Cardill on March 31, 2008 and he was subsequently retained for the purpose of continuing the assessment of Mr. Good’s accounts. At their meeting on March 31, 2008 and in follow-up correspondence dated April 24, 2008, Cardill informed the plaintiffs that he had a professional association with the law firm of Tierney Stauffer LLP, the law firm of the defendant, Ian Stauffer, and that this relationship constituted a conflict of interest.

9That same April 24, 2008 correspondence from Cardill to the plaintiffs set out the terms of Cardill’s retainer for the purposes of conducting an assessment of Mr. Good’s accounts. Cardill confirmed that the plaintiffs and Mr. Good were aware of the conflict of interest and agreed to Cardill representing the plaintiffs in the assessment.

10Following Cardill’s review of Mr. Good’s files, Cardill determined that Mr. Good may have been negligent in the handling of both the tort and accident benefits claims arising from the MVA. Cardill met with the plaintiffs on January 29, 2009 to inform them about his concerns regarding Mr. Good’s handling of their files and recommended the assessment of Mr. Good’s accounts be transferred to the Superior Court to be heard by a judge rather than an assessment officer. In that meeting, Cardill confirmed that he was only retained to assess the accounts of Mr. Good and that if they intended to sue Mr. Good for negligence they would have to retain new counsel. In early February 2009, Cardill commenced an application to transfer the assessment into the Superior Court of Justice.

11On September 1, 2009, Cardill met with the plaintiffs to discuss the scope of his retainer. At that meeting the plaintiffs executed an acknowledgement that:

a) Cardill was retained in respect of the assessment of Mr. Good’s accounts from the prior few years;

b) Cardill was not retained for the purpose of bringing a negligence claim against Mr. Good with respect to the handling of any of their files;

c) Cardill had advised the plaintiffs “both before and now”, that if they wanted to pursue a negligence claim against Mr. Good, they could retain counsel outside of Cardill’s firm;

d) Cardill had advised the plaintiffs of a conflict of interest because of Ian Stauffer’s involvement in the settlement of the tort action; and

e) Cardill had advised the plaintiffs that Mr. Good had consented to Cardill’s continued representation of the plaintiffs on the assessment of his accounts notwithstanding the conflict of interest.

12The parties attended mediation with respect to the assessment of Mr. Good’s accounts in April 2010 and when that did not settle the matter, the assessment proceeded in the Superior Court before Justice C. Hackland on November 9, 2010, April 27 and November 8, 2011. Cardill represented the plaintiffs on November 9, 2010, however, on the return of the hearing on April 27, 2011, Cardill asked to withdraw due to a breakdown of the solicitor and client relationship. Justice Hackland’s decision regarding the assessment of Mr. Good’s accounts rendered on January 31, 2012 was substantially in the plaintiffs’ favour.

13Justice Hackland made the following observations at paragraph 10 of his endorsement:

10. The Meehans’ counsel pursued, in his cross-examination of the solicitor, the theme that the solicitor was not competent to have handled a personal injury and SABS claim of this complexity and the allegation that the SABS claim was not worked up properly and this resulted in a very poor settlement for the Meehans. He called in support of this argument the expert evidence of a solicitor specializing in plaintiffs personal injury and SABS litigation who supported the position that the Meehans’ claims were not worked up and presented properly and the adequacy of the settlement was very much in question. For the reasons discussed below, I am persuaded that this is the correct view of the matter and I accept the analysis of the expert witness.

14On January 16, 2013 the plaintiffs commenced this action against their former solicitors and law firms, including Cardill, for negligence. The allegation against Cardill in the Statement of Claim is that Cardill at all material times was retained by the plaintiffs for the purpose of advancing claims on their behalf as against Donald Good.

15More particularly, the plaintiffs have alleged that Cardill, while retained to represent them for the purposes of assessing Mr. Good’s accounts on an assessment, failed to advise them of his conflict of interest with respect to Cardill’s association with Ian Stauffer who had been retained by Mr. Good to assist with the accident benefits and tort files. (Ian Stauffer had not, in fact, been retained to assist Mr. Good with the accident benefits file. He had only been retained to assist with the tort file.)

16The plaintiffs have also alleged that Cardill was aware that Mr. Good was negligent in his representation of them and that he failed to advise the plaintiffs of their rights to bring an action against Mr. Good and failed to commence that action on their behalf.

17For the purposes of this proceeding, it was agreed that the possible negligence was discovered in February 2009 and the two year limitation period began to run at that time.

Law and Analysis

18A court must grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence (Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 20.04(2)(a); Hryniak v. Mauldin, 2014 SCC 7, at para 47 [Hryniak]).

19There is no genuine issue requiring a trial where the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. When the process allows the judge to make the necessary findings of fact, to apply the law to those facts, and it is a proportionate, more expeditious and less expensive means to achieve a just result, summary judgment is the appropriate remedy (Hryniak at para 49).

20In determining whether or not there is no genuine issue requiring a trial, a court shall consider the evidence presented by the parties on the summary judgment motion. A judge may also weigh evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at trial (Rules of Civil Procedure, r. 20.04(2.1); Hryniak at para 52).

21In determining whether to apply Rule 20.04(2.1), the judge should determine whether a full appreciation of the evidence and issues required to make a dispositive finding can be achieved by way of summary judgment, without a trial. The evidence need not be equivalent to that expected at trial, but the judge must be confident that the dispute can be resolved fairly (Hryniak at paras 53, 57).

22Justice D. Corbett provided a useful summary of the Hryniak v. Mauldin approach in Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, where he stated at paragraphs 33 and 34:

33. As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis:

(1) The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial;

(2) On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;

(3) If the court cannot grant judgment on the motion, the court should:

(a) Decide those issues that can be decided in accordance with the principles described in (2), above;

(b) Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;

(c) In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.

34. The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a "full appreciation" of a case necessary to grant judgment. Obviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the court's appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured.

23Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties will present at trial: Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 CanLII 4831 (ON CA), 111 O.A.C. 201 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 1994 CanLII 814 (ON CA), 18 O.R (3d) 481 (C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para 11.

24The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 255 (Gen. Div.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), aff’d [1997] O.J. No. 3754 (C.A.).

25In Hryniak v. Mauldin, although the Supreme Court of Canada commanded a very robust summary judgment procedure, it did not foreclose lower courts from simply dismissing the summary judgment motion and ordering that the action be tried in the normal course. Indeed, where there are genuine issues for trial and the lower court concludes that employing the enhanced forensic tools of the summary judgment procedure would not lead to a fair and just determination of the merits, the court should not decide the matter summarily: Mitusev v. General Motors Corp., 2014 ONSC 2342, at para 79; Gon (Litigation Guardian of) v. Bianco, 2014 ONSC 7086, 124 O.R. (3d) 65, at paras 41-47.

Summary of the Issues

26There are three issues before the Court on this motion for summary judgment that I have summarized as follows:

a) Was Cardill in conflict of interest when he agreed to represent the plaintiffs and if so, did he fail to advise them about his association with the Tierney Stauffer law firm?

b) Was Cardill retained by the plaintiffs to commence an action in negligence against Donald Good and Ian Stauffer and failed to do so?

c) Regardless of whether or not he was retained to commence an action in negligence, did Cardill owe the plaintiffs a duty of care to advise them about the discoverability principle regarding the possible negligence of Mr. Good and Mr. Stauffer and then instruct them regarding the running of a limitation period?

27The evidence presented in this motion for summary judgment consisted of affidavits sworn by the plaintiff, Michael Meehan, and Cardill regarding their respective positions of the circumstances that resulted in this litigation together with a variety of exhibits. Mr. Meehan and Cardill were cross-examined on their affidavits and their answers also formed part of the record on this motion.

28The plaintiff, Anne Meehan, swore an affidavit some months after the cross-examinations on the affidavits of Mr. Meehan and Cardill were completed. Her affidavit was limited to a statement that she had never been advised by Cardill of the 2 year limitation period in which a claim must be commenced against a solicitor for negligence. On cross-examination she confirmed this position. Anne Meehan did not provide any other evidence in opposition to this motion for summary judgment.

Conflict of Interest

29The initial correspondence from Cardill to the plaintiffs on April 24, 2008 clearly resolves the issue of whether or not he had informed them of the conflict of interest between himself and Ian Stauffer. That correspondence confirms that all parties had consented to his representation of the plaintiffs in the proceeding to assess Mr. Good’s accounts notwithstanding this conflict of interest.

30The issue of the conflict of interest was again identified in the Acknowledgement signed by the plaintiffs on September 1, 2009 that I have described in paragraph 10 above.

31In cross-examinations of the plaintiff Michael Meehan, he admitted that at the plaintiffs’ first meeting with Cardill on March 31, 2008, the plaintiffs were informed of the conflict of interest and that they agreed to retain Cardill in spite of that conflict.

32There is therefore no basis to the plaintiffs’ allegation that they were not informed about the conflict of interest. They were informed and agreed to proceed with Cardill as their counsel in spite of that conflict. There is therefore no genuine issue for trial with respect to this aspect of the plaintiffs’ claim.

Was Cardill Retained to Commence an Action in Negligence?

33When Cardill was retained in late March/early April 2008, Cardill had no information or evidence that Mr. Good might have been negligent in the management of the MVA actions; therefore it was not possible that Cardill was retained for anything other than the purpose of representing the plaintiffs on an assessment of Mr. Good’s accounts. This is clearly set out in Cardill’s retainer letter of April 24, 2008.

34The plaintiffs have submitted that the terms of the retainer changed in late 2008 or early 2009, when Cardill discovered that there might have been negligence on the part of Mr. Good in the handling of the MVA claims. On January 29, 2009 Cardill informed the plaintiffs that he had concerns with how the MVA files were handled by Mr. Good and that the assessment should proceed before a judge rather than an assessment officer.

35On February 6, 2009 Cardill sought leave of the Court to transfer the assessment to the Superior Court due to the potential mishandling of the MVA claims by Mr. Good.

36The plaintiffs allege that the evidence supporting their position that the retainer changed from solely an assessment of Mr. Good’s accounts to a general retainer to protect their interests in a possible negligence action stems from a March 9, 2009 letter written by Cardill to Mr. Good. The letter was not copied to the plaintiffs. The RE line at the beginning of the letter says: RE: Meehan - Assessment of Costs. The bulk of the letter deals with particulars of the assessment process; however, Cardill also advised Mr. Good that there were serious questions of his handling of the claims and that if the plaintiffs decided to pursue Mr. Good in negligence that Cardill would no longer be able to act for them because of his conflict with Mr. Stauffer. He also stated that if the plaintiffs decided only to pursue the claim of negligence regarding the accident benefits file, but not the tort claim then he could continue to act. The letter ends with a comment about proceeding with the assessment in front of a judge and a recommendation that Mr. Good notify his insurers.

37It was Cardill’s evidence that he informed the plaintiffs as early as the meeting on January 29, 2009 that his retainer was limited to the assessment of Mr. Good’s accounts and that if they intended to start an action against Mr. Good in negligence they should act quickly and that they would have to retain a different lawyer.

38It was also Cardill’s evidence that after receiving Mr. Good’s responding materials opposing the transfer of the assessment to the Superior Court he contacted the plaintiffs to inquire about a number of issues that had been raised in an affidavit submitted by an assistant of Mr. Good about the handling of their files. In that affidavit there was mention of a comment made by the assessment officer, Mr. Gransden, to the plaintiffs at the pre-hearing conference in January 2008 when Mr. MacMillan ended his involvement with the plaintiffs and their application for an assessment was withdrawn. The assessment officer had apparently advised the plaintiffs that if they intended to bring an action in negligence against Mr. Good, they should do so quickly. Cardill’s evidence was that it was during that conversation that he informed the plaintiffs of the two year limitation period regarding a negligence action against Mr. Good.

39Mr. Meehan in his evidence could neither confirm nor deny that this conversation took place. Mrs. Meehan in her affidavit claimed she had no recollection of this conversation and that she did not believe it ever occurred. She claimed that had she known about a limitation period, she would have taken action.

40On September 1, 2009 Cardill met with the plaintiffs and discussed the scope of his retainer. It was at that meeting that the plaintiffs signed the written acknowledgement described in paragraph 10 above in which they acknowledged that Cardill was not retained for the purpose of bringing a negligence claim against Mr. Good and that if they intended to do so they would have to retain counsel outside of Cardill’s law firm.

41As set out in my summary of the law regarding summary judgment motions, I am entitled to assume that all parties have put their best evidence forward regarding their case. The evidence of Cardill supports his position that he had advised the plaintiffs prior to September 1, 2009 that he was not retained to pursue a negligence claim against Mr. Good and that if they wanted to do so they would have to retain alternate counsel. This is clear from the wording of the acknowledgement the plaintiffs signed on September 1, 2009.

42The plaintiffs’ only evidence to the contrary is based upon Mr. Good’s testimony when cross-examined that Cardill had told him in January 2009 that the plaintiffs were not pursuing a negligence claim. They also relied on the letter from Cardill to Mr. Good on March 9, 2009 where Cardill informed Mr. Good about the possibility of a negligence claim against Mr. Good and recommended he contact his insurers.

43Mr. Meehan admitted on cross-examination that the plaintiffs never sought advice from Cardill regarding the bringing of a lawsuit in negligence against either Mr. Good or Mr. Stauffer and he acknowledged that Cardill had repeatedly advised both he and Mrs. Meehan to seek other counsel to pursue the negligence claim against Mr. Good.

44The evidence before me does not support the plaintiffs’ position that Cardill was retained to pursue a negligence action on their behalf. The evidence is entirely to the contrary. On the basis of the evidence presented in this hearing therefore, there is no basis for the allegation that Cardill was retained to represent the plaintiffs to pursue a negligence action against Mr. Good or Mr. Stauffer. There is therefore no genuine issue for trial with respect to this aspect of the plaintiffs’ claim.

Did Cardill owe the plaintiffs a duty of care to advise them about the limitation period?

45There are two aspects to this issue. The first is whether or not Cardill had advised the plaintiffs about the limitation period and if not, whether or not he had a duty to do so.

46There is competing evidence regarding whether or not Cardill advised the plaintiffs about the limitation period. Cardill testified in his affidavit and cross-examination that he informed the plaintiffs about the limitation period and their need to retain other counsel if they intended to pursue a negligence action as early as January 2009. Cardill had no written record of having informed the plaintiffs of the limitation period; however as set out above, he clearly advised them of the need to seek alternate counsel to pursue any claim in negligence on or before September 1, 2009, well before the expiration of the limitation period.

47The plaintiffs allege that Cardill never mentioned the two year limitation period; however Mr. Meehan admitted that Cardill repeatedly advised them to seek other counsel to pursue the negligence claim against Mr. Good.

48There has been an admission by all parties in this litigation that the negligence of Mr. Good was discovered by the plaintiffs in February 2009. The two year limitation period therefore expired in February 2011 as against the plaintiffs (but not as against the children of the plaintiffs who had not yet reached the age of majority).

49On March 25, 2011 Anne Meehan faxed a lengthy note to Cardill that sets out the history of the litigation, the funds the plaintiffs had expended on legal and other fees and questions they had for Cardill regarding the process. In that correspondence Ms. Meehan made the following comments:

Proceed in front of assessment court, Don Good argues time limitation! John Cardill continues and moves the file out of assessment court to actual court. Offer to Mr. Good ZERO.

John tells the Meehan’s you have two years in order to proceed with claim from date of discovery. We don’t understand what this means? Time continues……….. Now scheduled meeting with Justice Chadwick all attend, John, Meehan’s, Chadwick, Good, Bill Graham…..

50Neither of the plaintiffs mentioned this fax correspondence in their affidavits, nor were they cross-examined on it. Counsel for Cardill argued that the fax, while not proof that the plaintiffs had been informed of the two year limitation period, is one piece of evidence to support his testimony that he had informed them of the limitation period. He also argued that the fax appears to have been a timeline of information and that the comment about the two year limitation period occurred prior to the mediation before the Honourable Mr. Chadwick, a former justice in this court. That mediation took place in June 2010.

51Counsel for the plaintiffs argued that this fax cannot be used as evidence in support of Cardill’s position that he had informed the plaintiffs of the limitation period because the fax was sent on March 25, 2011, after the expiry of the limitation period. It was also his position that there was no evidence in this hearing to indicate when the fax was written or whether or not it was intended as a time line.

52It was the plaintiffs’ position that the difference in evidence regarding whether or not Cardill informed the plaintiffs of the two year limitation period and if so when that occurred is an issue that may only be resolved in a trial. It was their position that Cardill failed to advise them of the pending limitation deadline and this was negligent. Had they known about the limitation deadline, they would have acted on it because of the strong evidence that supported a claim for negligence against Mr. Good.

53Counsel for Cardill argued that even if the court finds that he had not advised the plaintiffs of the two year limitation period, which he disputes, he had no duty to the plaintiffs to instruct them regarding the limitation period or any other matter regarding a possible negligence action against Mr. Good because his retainer was restricted to acting for the plaintiffs on the assessment of Mr. Good’s accounts.

54It was Cardill’s position that once he informed the plaintiffs that he had discovered Mr. Good may have been negligent and instructed the plaintiffs to obtain legal advice elsewhere, his duty to them on this matter was finished. He argued that it was the plaintiffs who were the authors of the missed limitation period when they did not seek legal advice about their rights in a negligence claim in a timely fashion, notwithstanding having been advised by Cardill to do so.

55Counsel for Cardill noted that the plaintiffs have not produced a report from an expert to provide an opinion of the duty of care required of a solicitor in circumstances of Cardill’s retainer with the plaintiffs. It was his position that without that evidence, the court cannot reach a determination of what the standard of care should be for a lawyer in the position of Cardill.

56Finally, counsel for Cardill referred to the case of Broesky v. Lüst, 2011 ONSC 167, at paras 55-58, aff’d 2012 ONCA 701, in which the court distinguished between a limited-scope retainer and a non-retainer.

57A limited-scope retainer describes situations where the lawyer has agreed to be retained in a matter but limits the scope of that retainer to something less than what a reasonably competent and diligent solicitor would otherwise perform in the fulfilment of the retainer. Counsel for Cardill provided an example of this type of limited retainer as when a lawyer transferring real property from one family member to another is not retained to conduct a title search. In that scenario, the lawyer is required to inform the parties in writing of the limitations of his retainer.

58Counsel for Cardill argued that where a lawyer is fully retained to protect the client’s interests in one matter but is not retained to represent the client in another matter, that scenario is a “non-retainer” as opposed to “limited-scope retainer”. The lawyer acting in the scope of a non-retainer is not required to confirm the limits of the retainer in writing (Broesky, supra at paras 55-56).

59It follows, therefore, that the failure to send a letter of non-retainer does not constitute a breach of the applicable standard of care as it would in the case of a limited-scope retainer. In this matter, Cardill set out the work he had been retained to perform in his initial letter of April 24, 2008, being the assessment of Mr. Good’s accounts. After he began to suspect there had been negligence, he advised the plaintiffs to seek other counsel and took the additional step of obtaining written acknowledgment on September 1, 2009 confirming he had not been retained to pursue a negligence action.

60Based upon the evidence before me, I do not find that Cardill failed in his duty of care to the plaintiffs. While the evidence supports the likelihood that Cardill informed the plaintiffs of the limitation period, I do not need to find that he did so in reaching my conclusion that he did not owe them a duty of care to advise them further regarding their possible claims in negligence. His duty to the plaintiffs was met when he instructed them to seek legal advice regarding the negligence issue. There cannot be any doubt that he did so. Mr. Meehan confirmed that the plaintiffs were told on a number of occasions to obtain advice from other counsel and the acknowledgement they signed on September 1, 2009 supports this.

61The fact that the evidence of both the plaintiffs and Cardill confirms that Cardill never provided them with advice about the possible negligence claim, except to advise them to obtain another lawyer, supports Cardill’s position that he was neither retained nor did he owe them a duty of care to either pursue or provide them with legal advice regarding the possible negligence action.

62There is therefore no genuine issue for trial with respect to this aspect of the plaintiffs’ claim.

63For the reasons set out above, I grant Cardill’s motion for summary judgment.

Costs

64Cardill is entitled to his costs. If the parties are unable to agree on the quantum of costs they may make written submissions on costs within 30 days of this decision. The submissions shall not exceed 4 pages together with their Bills of Costs and Offers to Settle, if any.