Court File and Parties

COURT FILE NO.: CV-14-499928 DATE: 20160720 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TOMASZ RABA Plaintiff – and – MOHAMMED JACQUESSON Defendant

Counsel: Self Represented, acting in person (for the Plaintiff) David Lipkus, for the Defendant

HEARD: June 21, 2016

G. DOW, j

Reasons for Decision

[1] The defendant, Mohammed Jacquesson seeks to dismiss the claim of the plaintiff, Tomasz Raba, on a motion for summary judgment and in accordance with the principles set out in the decision of Hryniak v. Mauldin, [2014] S.C.R. 87. The plaintiff, appearing in person, opposes the relief sought by the defendant.

Facts

[2] The defendant is a paralegal licensed by the Law Society of Upper Canada and practices in Small Claims Court as well as before the Landlord and Tenant Board. The defendant was retained by the plaintiff on June 11, 2012 with regard to Landlord and Tenant issues.

[3] The plaintiff was a party in two Applications before the Landlord and Tenant Board. The first Application, made by the landlord, sought to evict him from his premises (at that time) due to his conduct and behavior as it pertained to the landlord (or building superintendent) and at least one other tenant. The second application was commenced by the plaintiff and sought an order that the landlord had failed to meet maintenance and safety standards.

[4] A retainer agreement in the form of a letter from the defendant to the plaintiff dated June 12, 2012 and sent by email confirms the plaintiff retained the defendant to represent him before the Landlord and Tenant Board on June 13, 2012 with “the first course of action is to seek an adjournment for the hearing on June 13, 2012, in order for me to have more time to prepare.” (Tab 2 of the Motion Record of the plaintiff). It also states the defendant’s business, My Paralegal “cannot guarantee the outcome of any legal matter”. To that end, I accept the defendant’s evidence that he explained to the plaintiff the need to be prepared to proceed on June 13 in the event that the adjournment request was not granted. (This also undermines the plaintiff’s position that the defendant was only retained to seek the adjournment and that his failure to do so amounts to a breach of contract).

[5] The plaintiff’s material indicates his Application was set for 9:30 a.m. (Tab 4 of the Motion Record of the plaintiff) and the landlord’s Application was scheduled to proceed at 1:30 p.m. (Tab 5 of the Motion Record of the plaintiff). The plaintiff’s Application was adjourned although the “Interim Order” (Tab 4 of the Motion Record of the plaintiff) required the parties to only communicate in writing and that the landlord’s superintendent was not to have “any direct communication” with the plaintiff “until this matter is heard by the Board”. The landlord’s Application on June 13 was actually the second day of the hearing that commenced on (Tuesday) May 8, 2012 which the defendant claims the plaintiff failed to advise him of and which does not appear to be disputed from the information and evidence contained in the plaintiff’s 18 paragraph Affidavit plus 18 exhibit Motion Record filed with the Court.

[6] The landlord’s Application to evict the plaintiff proceeded on June 13 with a decision issued June 28, 2012 (Tab 5 of the Motion Record of the plaintiff) which sets out, in paragraph 5, that the defendant, “who represented the tenant on the second day, did not request an adjournment acknowledging he did not think one will be granted.” It should be noted that paragraphs 1 and 2 of the decision note the plaintiff had unsuccessfully sought an adjournment on the previous hearing date for three reasons, that is, the plaintiff’s own application had been commenced May 2, 2012 and did not yet have its own hearing date, the plaintiff’s legal representative was not available and, thirdly, the plaintiff wished to find alternate counsel.

[7] It is the defendant’s evidence that the plaintiff agreed with the defendant’s assessment the adjournment would not be granted and instructed the defendant to proceed on his behalf. The defendant also claims he told the plaintiff at the conclusion of the hearing the plaintiff was unlikely to win but this was not communicated in any form such as a letter or email that could be produced for this motion.

[8] The decision released on June 28, 2012 terminated the tenancy between the plaintiff and the landlord evicting the plaintiff effective July 13, 2012. It should also be noted the reason of the Member (Adjudicator) includes, at paragraph 19, that during the hearing the plaintiff displayed the “erratic behaviour” complained of by the landlord in spite of “being cautioned several times”.

[9] The defendant’s retainer continued. In fact, there is a retainer agreement signed by the plaintiff July 3, 2012 (Tab 7 of the Motion Record of the plaintiff) to “take all necessary steps before the Landlord and Tenant Board in my absence relating to my matter” (Tab 7 of the Motion Record of the plaintiff). I conclude, given the date of the document, that it relates to the plaintiff’s Application given the Application by the landlord to evict the plaintiff had not only proceeded but the reserved decision rendered.

[10] It is the defendant’s evidence he advised the plaintiff of his possible responses to the eviction decision of June 28, 2012, that being an appeal to the Divisional Court. The defendant does not submit any evidence he advised the plaintiff of his right to seek a review of the hearing (and Order) by the Landlord and Tenant Board which the plaintiff did on his own on July 5. This resulted in the issuance of a Review Order dated July 9, 2012 (Tab 8 of the Motion Record of the plaintiff). This is important because it sets out the reasons the plaintiff disagrees with the Landlord and Tenant Board decision to order his eviction. The reasons given are:

a) the Member (Adjudicator) should have adjourned the hearing “for the Tenant to secure legal representation” which I interpret to mean the decision on May 8, 2012 where the adjournment was sought and not June 13, 2012; b) the Member (Adjudicator) made numerous “errors of fact; that the tenant’s first representative did not represent the tenant as she was retained to do”; c) the Member (Adjudicator’s) conduct was improper.

[11] What the Review Order does not contain is any evidence, submission or reference to the defendant having failed to request an adjournment of the proceeding on June 13 which the plaintiff claims is the very essence of his action against the defendant for breach of contract.

[12] The request to the Landlord and Tenant Board to review its order (and which the defendant did not participate in or had any awareness of) was confirmed.

[13] The defendant continued his preparation for the plaintiff’s hearing scheduled to proceed on August 15, 2012 of the plaintiff’s Application to confirm the landlord’s failure to meet maintenance and safety standards. However, on August 14, 2012, the plaintiff terminated the retainer and advised the defendant he was no longer interested in pursuing his application. The plaintiff advised that he was going to Mexico and there was no need for the defendant to attend. This was confirmed in an email from the defendant to the plaintiff at 6:25 p.m. (Tab 10 of the Motion Record of the plaintiff).

[14] Upon reflection and after consulting with a lawyer, the defendant decided to attend on August 15, 2012 to advise the Landlord and Tenant Board of the end of his retainer only to find the plaintiff there and representing himself.

[15] There is a third Landlord and Tenant Board Application, made by the plaintiff, in which the plaintiff represented himself which was issued the day after the plaintiff’s request to review the eviction order against him was denied. This decision, issued August 13, 2012 is in the landlord’s favour and notes the plaintiff was representing himself.

[16] It would appear the plaintiff took the defendant’s advice with regard to launching an appeal of the Landlord and Tenant Board’s decision to evict him as his materials contain a “Notice of appeal” to the Divisional Court dated July 11, 2012 (Tab 9 of the Motion Record of the plaintiff) but no other documentation detailing when or how this matter was concluded.

[17] In August, 2013, the plaintiff complained to Law Society of Upper Canada regarding the defendant and what had occurred (Tab 11 of the Motion Record of the plaintiff). In the Law Society letter to the plaintiff dated November 21, 2013 (Tab 12 of the Motion Record of the plaintiff), the Law Society of Upper Canada advises the plaintiff that it is limited to investigating complaints regarding the conduct of its members. In addition, they set out they do not have jurisdiction to address any claim of negligence against a member such as the defendant and that the plaintiff should obtain legal advice in this regard. In his response to the Law Society, the defendant provides a chronology of his efforts to represent the plaintiff (Tab 13 of the Motion Record of the plaintiff).

[18] The Statement of Claim that is the subject of the action before me was issued March 10, 2014. (Tab 3 of the Motion Record of the defendant). The plaintiff seeks general and punitive damages, declaratory relief, interest and costs. In addition to the allegation the defendant failed to seek an adjournment of the hearing on June 13, 2012 (at paragraph 9), the plaintiff also alleges the defendant was negligent in his representation of the plaintiff on June 13, 2012. Further, the plaintiff alleges the defendant was negligent in his attendance and conduct before the Landlord and Tenant Board on August 15, 2012.

Issue - Failure to Seek Adjournment

[19] Justice Karakatsanis in paragraph 47 of the Hryniak v. Mauldin decision provides summary judgment must be granted whenever there is no genuine issue for trial. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits based on the materials put before him or her. This will occur when the process allows the judge to make the necessary findings of fact and apply the law to the facts.

[20] In this matter, it is not disputed the defendant was retained (in part), to attempt to obtain an adjournment of the Landlord’s application to evict the defendant as stated in the retainer letter. The defendant did not do so after it was learned it was the second day of the hearing, the landlord was opposed to the request, and the plaintiff unsuccessfully argued for an adjournment on the previous attendance. However, the retainer letter also stated the defendant could not guarantee the result, that is, the adjournment request may be rejected and the matter would (continue to) proceed.

[21] In Elliot v. Chiarelli (2006), 83 O.R. (3d) 226, Justice Baltman at paragraph 33 states there is little case law “discussing the standard of care applicable to a paralegal”. She refers to the decision of Justice Stinson in West v. Eisner, [1999] O.J. No. 4705 “that it made sense to apply a standard based on common sense and ordinary understanding”.

[22] As a result, it is my view that there has been no breach of the duty owed by the defendant to the plaintiff in the performance of his duties as a paralegal appearing before the Landlord and Tenant Board. The alternative, which was stressed by the plaintiff in his submissions, was the defendant breached the contract between the parties by not seeking an adjournment as noted in the reasons of that decision. I reject this submission for two reasons.

[23] The first is the evidence of the defendant that upon learning of the landlord’s opposition to the adjournment request and the presiding adjudicator’s comments regarding the status of the matter, he received the plaintiff’s instructions not to request an adjournment. This evidence was not specifically contested by the plaintiff in his materials or submissions. The second reason for my conclusion is the retainer letter statement of a “first” course of action rather than the “only” course of action. It is my conclusion the alleged facts being urged on me by the plaintiff did not occur.

[24] Further, if this conclusion and my finding is incorrect, and the defendant was obligated to request the adjournment, what are the consequences? There is no evidence before me that the result would be any different. If the request for an adjournment had been made, it is my conclusion, from the reasons issued June 28, 2012, the adjournment would not have been granted. It was previously requested by the plaintiff on May 8, 2012 and denied. Even if granted, it is my conclusion there is no evidence that a different result would have occurred. That is, the plaintiff failed to put forward evidence which would have been available if the matter was adjourned that would have altered the result.

[25] The plaintiff also raised learning that the defendant’s license to practice from the Law Society of Upper Canada was administratively suspended on June 22, 2012 for failure to pay requisite fees and not reinstated until July 10, 2012. The defendant acknowledges this occurred as an online payment did not go through and the defendant was unaware of the suspension until contact with the Law Society of Upper Canada confirmed the situation and the necessary payment process. The plaintiff sought to have me to conclude this was why he was taking steps on his own around that time. I reject that argument as the logical conclusion is the defendant was unaware his license was administratively suspended and when he learned of it took immediate steps to rectify the situation. Further, the plaintiff admits he was not aware of this issue until around March of 2014.

[26] As a result, the defendant is entitled to have the action dismissed as against him with regard to this issue.

Issue – Negligence Misrepresentation on Plaintiff’s Application

[27] The plaintiff also raised allegations of negligence on the part of the defendant with regard to events on August 15, 2012 and the defendant’s conduct before the Landlord and Tenant Board that day. The defendant’s evidence is that he attended that day to confirm to the Landlord and Tenant Board that his retainer had been terminated. He did so as a professional courtesy, to ensure his reputation was not impugned and concerns over the status of the plaintiff’s Application if no one attended. The plaintiff made references to a transcript he has apparently obtained of the proceeding but not shared or produced it in full to counsel for the defendant or this court. From reviewing the references to what was said by the defendant to the Landlord and Tenant Board on August 15, 2012 (as contained in paragraphs 33 to 53 of the Statement of Claim and paragraph 15 of the plaintiff’s Affidavit), I reject there was any conduct on the part of the defendant on August 15, 2012 that negatively influenced the result of that proceeding or that it was the cause of any damages suffered by the plaintiff.

[28] It should be noted the third Application commenced by the plaintiff which was heard on August 13, 2012 was for the same relief sought in the hearing that proceeded August 15, 2012. In those reasons, the Member (Adjudicator) noted that the plaintiff displayed “inappropriate behaviour towards participants in the hearing”.

[29] While the reasons for the decision of the Application heard on August 15, 2012 were not put before me, the comments of two different Member (Adjudicators) of the Landlord and Tenant Board of the plaintiff acting inappropriately before the Board reinforces my conclusion that the plaintiff has no cause of action against the defendant in negligence arising from the events of August 15, 2012. The plaintiff agreed the defendant’s retainer had been terminated the evening before and the comments or statements from the transcript the plaintiff alleged were made by the defendant (presumably those which are most favourable to the plaintiff) do not constitute a cause of action in negligence against the defendant.

[30] I should note that the plaintiff expressed to me his displeasure with my asking him questions about his submissions (in order for me to better understand his position) and his belief in conspiracies which included members of the administration of justice and were making his obtaining (his view of) justice more difficult. It was clear to me that the plaintiff had given the matters before me much thought and had prepared submissions. Unfortunately, many of his submissions related to issues and questions not related to his need to show the defendant had committed a legal wrong against him resulting in monetary damages and that he was entitled to recover either in a summary judgment motion or dismissal of the defendant’s motion with the right to proceed to trial. As stated in Hryniak v. Mauldin (in paragraph 50), when a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. As indicated in cases decided after the Hryniak v. Mauldin reasons were released January 24, 2014, it is incumbent on the parties to put forward the evidence they require in order to succeed. Mr. Raba failed to do so.

Disposition and Costs

[31] As a result, I am prepared to grant the defendant’s motion. The plaintiff’s action is dismissed. Counsel for the defendant submitted a Costs Outline in the amount of $11,696.03 inclusive of fees, H.S.T. and disbursements. The plaintiff claimed this amount was excessive. I agree. While I have no difficulty with the partial indemnity rates being proposed, the amount of time claimed to review the file, draft pleadings and this motion is excessive. Consistent with the principles set out in Boucher v. Public Accountant’s Council for the Province of Ontario, [2004] O.J. No. 2634 at paragraph 26 and the need to “fix an amount that is fair and reasonable for the unsuccessful party to pay in a particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant”, I would allow and award the defendant the sum of $6,500 inclusive of fees, HST and disbursements payable by the plaintiff forthwith.

Mr. Justice G. Dow Released: July 20, 2016