Nature of the motion

[1] The Defendants move for summary judgment dismissing this action, submitting that it raises no genuine issue for trial. They further argue that the action is a frivolous and vexatious claim and amounts to an abuse of process.

[2] The self-represented Plaintiffs maintain that they have advanced a valid cause of action and have raised genuine issues which should proceed to trial.

Background

[3] In February 2007, the Plaintiffs started an action against Kenneth E. Howie, David R. Tenszen and the law firm of Thomson, Rogers in which they allege negligence. In that action, the Plaintiffs allege that Howie, Tenszen and Thomson, Rogers were negligent by improvidently settling a medical malpractice claim asserted F. Mary Mikhail against Dr. Nelson J. Daniels. A claim for damages under the Family Law Act was advanced in that action by Michael Mikhail.

[4] Stanley Tessis of the Defendant Laxton Glass LLP was retained to defend the defendants in the solicitors’ negligence action. Tessis maintained carriage of the file until late 2013 when the Defendant Jason Hickman of Laxton Glass LLP took over the defence. The Defendant Serena Gohal is an associate at Laxton Glass LLP who assisted Hickman.

[5] In June of 2007, the Plaintiffs took the position that Laxton Glass was in a conflict of interest in accepting the defence retainer in the solicitors’ negligence action as lawyers at the firm had purportedly been consulted by the Plaintiffs in connection with other matters in the past, but took no formal steps to press the issue. The issue again was raised at Michael Mikhail’s examination for discovery in January 2009 when a motion to remove Laxton Glass as counsel of record in the proceedings was threatened.

[6] In June 2009, the Plaintiffs brought the threatened motion for an order removing Laxton Glass as lawyers of record but ultimately decided to abandon the motion. The parties agreed to a consent order dismissing the motion with costs of $5,000.00 to the defendants.

[7] In October of 2012, the Plaintiffs became self-represented. The various steps taken since then by the Plaintiffs in the solicitors’ negligence action have been set out in exquisite detail in the materials submitted by the Defendants. I will refer only to some events that I consider to be most relevant.

[8] On October 30, 2013, the Plaintiffs brought a motion to amend their Statement of Claim to add Thompson, Rogers as a defendant in the solicitors’ negligence action and to examine Vance Cooper on an affidavit sworn by him in respect of the earlier motion to remove Laxton Glass as lawyers of record. Master Abrams dismissed that motion.

[9] The Plaintiffs then appealed the decision of Master Abrams. Sachs J. dismissed the Plaintiffs’ appeal. The Court of Appeal denied leave to appeal the decision of Sachs J. The Supreme Court of Canada finally dismissed the Plaintiffs’ further application for leave to appeal.

[10] On March 30, 2015, the Plaintiffs moved before Master Short for, among other things, an order compelling Hickman to answer questions about events that took place during a mediation in the solicitors’ negligence action and an order to re-examine Howie.

[11] The motion proceeded before Master Short on June 30, 2015. Master Short very sensibly stated:

I am concerned that it may be that the plaintiffs are focusing on tangential issues and should rather be endeavouring to get their action tried on the merits…In the interim I was not satisfied as to the utility of the examinations and information sought by Mr. Mikhail.

[12] Accordingly, the motion was dismissed by Master Short with costs to the defendants of $12,000.00 in the cause.

[13] The Plaintiffs apparently have appealed that decision.

[14] The Plaintiffs’ Statement of Claim delivered in this action again alleges that Laxton Glass LLP is in a conflict of interest.

[15] The Statement of Claim in this action also contains allegations that Hickman acted improperly in the solicitors’ negligence action by using a laptop computer to take notes during the examination for discovery of Howie. In particular, it is alleged that Hickman sat close to Howie so that he could read answers to questions asked by Mikhail.

[16] The Plaintiffs also allege that Howie’s signature on an affidavit sworn in response to the Plaintiffs’ motion in the solicitors’ negligence action was a forgery.

[17] In essence, the Plaintiffs allege that the Defendants Hickman, Gohal, Howie and Laxton Glass owe a fiduciary duty to them as opposite parties and/or counsel and, through their conduct, have breached that duty.

[18] The Defendants, as noted above, seek a dismissal of this action against them in its entirety.

Law and Discussion

[19] The Defendants argue that:

(a) there is no genuine issue requiring a trial;

(b) there is no basis for the claim of breach of fiduciary duty and breach of loyalty as the Defendants did not owe a fiduciary duty or duty of loyalty to the Plaintiffs;

(d) the Statement of Claim is an attempt to relitigate issues which have already been ruled upon in interlocutory proceedings in the solicitors’ negligence action, and one of which is subject to an appeal which is still ongoing;

(e) there is no basis for the allegations of breach of contract, fraudulent misrepresentation, or unjust enrichment as against the Defendants.

[20] The Plaintiffs maintain that the allegations are such that they have raised a valid cause of action and genuine issues for trial, and the action therefore should proceed to trial for adjudication on its merits.

[21] Since no duty of care can be owed to an opposing party during litigation, that party cannot succeed in an action for damages against it or its lawyer for actions taken on behalf of a client while acting as counsel.

[22] It is evident that these claims are brought against parties, and counsel for parties, adverse to the Plaintiffs. It is trite law that no duty of care is owed by the Defendants to the Plaintiffs and thus there is no reasonable cause of action to be advanced at trial and, it follows, no genuine issue for trial (see: Shuman v. Ontario New Home Warranty Program, 2001 Carswell Ont 3666).

[23] A claim such as this as against solicitors brought by the opposing party is also an abuse of process (see: Heydary Hamilton PC v. Muhammad, 2013 ONSC 4938).

[24] To permit this action to proceed would be to encourage persons in the position of the Plaintiffs to relitigate in actions against their opponent’s counsel the issues lost in the main litigation (see: Brignolio v. Desmaras, Keenan, [1995] O.J. No. 3499). In my view, this is what the Plaintiffs are attempting to do in this case.

[25] If counsel for the defendants in the solicitors’ negligence action are found to have behaved in any way improperly, there are ample sanctions available for the Plaintiffs within the context of such proceedings to seek and obtain redress in legitimate circumstances.

Conclusion

[26] There is no genuine issue raised in this action that requires a trial. The motion for summary judgment dismissing the action is granted and the action is, as a result, hereby dismissed. I would also strike the action as an abuse of process.

[27] In view of this determination granting summary judgment on the basis outlined, I do not consider it necessary to address the several other arguments raised by the moving parties that would justify the same result.

Costs

[28] If the subject of costs cannot be agreed upon, written submissions may be delivered by the Defendants within 20 days of today’s date and by the Plaintiffs within 15 days thereafter.

Stewart J.

Date: December 21, 2016

Mikhail v. Hickman, 2016 ONSC 6747

Case Summary

Nature of the motion

Background

Law and Discussion

Conclusion

Costs

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues