Superior Court of Justice - Ontario

Citation: Salman v. Patey, 2016 ONSC 7999

Court File No.: CV-14-497689

Date: 2016-12-19

Re: Rawia Salman, Plaintiff

And: Shawn Patey and Patey Law Group, Defendants

Before: The Honourable Mr. Justice R.D. Reilly

Counsel: Rawia Salman, Self-represented Plaintiff Susan M. Sack, Counsel for the Defendants

Heard: December 5, 2016

RULING ON A MOTION

[1] In her fresh as amended statement of claim dated February 3, 2014, the plaintiff claims damages in the amount of $2,000,000 for general damages, other special damages and punitive damages in the amount of $2,000,000, together with ancillary relief.

[2] The plaintiff, Rawia Salman resides in the City of Waterloo. The defendant, Shawn Patey, is a lawyer in Toronto, operating the Patey Law Group.

[3] On or about June 3, 2006 the plaintiff was involved in a motor vehicle accident. On October 16, 2006, the plaintiff retained the services of a paralegal law firm “Accident Resolution Group” (ARG). She then retained the defendant, Shawn Patey, as counsel in the matter. Reference is made through the material filed with the court to an alleged association between Shawn Patey and ARG. There is in fact no factual or legal association between Mr. Patey and ARG.

[4] The plaintiff’s claims for negligence are detailed in her statement of claim. I shall return to them presently. I shall turn first to a brief history of the events that lead to this litigation.

[5] The defendants take the position that the retainer between the plaintiff and the Patey Law firm was terminated in January of 2009. As noted above, this action for negligence was commenced on February 3 of 2014. In addition to this action, the plaintiff commenced action against one Paula Stamp and Mr. Robert Ipacs, a subsequent counsel. In the current action and in the arguably related actions against Ms. Stamp and Mr. Ipacs, they all relate to a motor vehicle accident that as noted above occurred on June 3, 2006.

[6] On December 12, 2014 the plaintiff’s action against Ms. Stamp was summarily dismissed by the Honourable Justice Meyers who found the action was limitation barred. The actions against the Patey Law firm and Mr. Ipacs continued.

[7] On June 24th of 2015, the Honourable Mr. Justice Faieta (Order dated June 24, 2015) ordered both these actions to be tried together, or one after the other, and that there be common discoveries and productions.

[8] As of 2008 the Patey Law firm was retained with respect to a number of matters to represent the plaintiff.

[9] The first was the plaintiff’s tort claim against the driver and owner of the vehicle involved in the 2006 motor vehicle collision, Jennifer Trinh and Hung Trinh. This action was commenced by Mr. Patey on May 21, 2008.

[10] Mr. Patey also represented the plaintiff with respect to her claim for Statutory Accident Benefits (SABs) against Wawanesa Insurance, after they denied her SABs relating to the motor vehicle accident.

[11] Mr. Patey also represented the plaintiff in her short term disability claim against the Great West Life Insurance Company (the STD claim).

[12] A claim was also made by Mr. Patey, on behalf of the plaintiff, involving the RBC Life Insurance Company for an LTD claim.

[13] Mr. Patey also represented the plaintiff in a claim against her employer at the time, Bard Canada Inc., following her dismissal as a result of injuries she sustained from the motor vehicle accident.

[14] Mr. Patey also represented the plaintiff with respect to claims from a “slip and fall” that occurred on December 11, 2008 at Food Basics.

[15] The plaintiff terminated her retainer with Mr. Patey and his firm in January 2009. She then retained Mr. Robert Ipacs to represent her in her ongoing litigation. To summarize the events to that date and which followed, I will start with the motor vehicle accident tort claim.

[16] Mr. Ipacs assumed carriage of the action after the plaintiff terminated Mr. Patey’s retainer and ultimately settled the case for $125,000, all inclusive in favour of the plaintiff.

[17] Mr. Patey represented the plaintiff in the SAB claim and it was settled on October 27, 2008 in an amount of $20,000 in favour of the plaintiff.

[18] The Patey law firm continued to act for the plaintiff with respect to the STD claim. On or around November 7, 2008 she received a payment of $4,325.85 in satisfaction of her short term disability entitlement.

[19] With respect to the LTD claim and the statement of claim issued by Mr. Patey against RBC, Mr. Ipacs assumed carriage of the action after the plaintiff terminated the retainer with Mr. Patey and ultimately settled that case in favour of the plaintiff.

[20] With respect to her human relations complaint, on April 14, 2008 the plaintiff agreed to a settlement with Bard Canada Inc. and an employee, where amongst other things she was paid $12,000 in termination pay. She then withdrew the human relations complaint.

[21] With respect to the slip and fall tort claim against Food Basics, the file was simply sent to Mr. Ipacs in 2009 with advice with respect to the issue of the statement of claim.

[22] I will turn presently to the motion for summary judgment pursuant to Rule 20 and my determination as to whether there is a genuine issue requiring trial. I turn first to the limitation issue.

[23] Section 4 of the Limitations Act provides that a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. Section 5 sets out that:

5(1) A claim is discovered on the earlier of:

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damages occurred,

(ii) the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matter referred to in clause (a).

5(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[24] The plaintiff takes the position that the limitation period should not begin to run until at least 2012 when she became aware of the “consequences” of Mr. Patey’s alleged negligence as it impacted in particular upon her motor vehicle accident claim.

[25] Mr. Justice Perell stated in Jennifer Holly v. Northern Trust Company and Royal Trust Company, (defendants) at paras. 155 and 156:

[155] The discoverability principle governs the commencement of a limitation period and stipulates that a limitation period begins to run only after the plaintiff has the knowledge or the means of acquiring the knowledge of the existence of the facts that would support a claim for relief. (Citing precedents) Thus the limitation period commences when the plaintiff discovers the underlying material facts or, alternatively, when the plaintiff ought to have discovered those facts by the exercise of reasonable diligence.

[156] The circumstances of a potential claimant may not appreciate the legal significance of the facts does not postpone the commencement of the limitation period, if he or she knows or ought to known the existence of the material facts, which is to say the constituent elements of his or her cause of action. Error or ignorance of the law or legal consequences of the facts does not postpone the running of the limitation period. (Citing precedents)

[26] So too did the Ontario Court of Appeal rule in the case of Cowal v. Shyiak where the court stated at para. 18:

Certainty of a defendant’s responsibility for the act or omission that caused or contributed to the loss is not a requirement. It is enough to have prima facie grounds to infer that the acts or omissions were caused by the party or parties identified: (citing precedents) Expert opinions are not required in all cases (citing precedents).

[27] The same approach has been adopted in a number of cases, including: Lochner v. Toronto Police Services Board, 2015 ONCA 626 (Ont.C.A.) and Bank of Nova Scotia v. PCL Constructors Canada Inc. 2009, O.J. No. 4347 (S.C.J. Master).

[28] The bottom line is that the plaintiff, Rawia Salman, knew full well when she brought this action, indeed several years prior to that, of her perception of the negligence of the defendant Shawn Patey and his law firm. That is abundantly clear from the copious material which has been presented to this court. She believed that he had been extremely negligent in his representation of her and that he should be responsible for that negligence. The fact that she now maintains that until 2012 or for that matter 2014, she did not fully appreciate the consequences of that negligence, does not commence the running of the limitation period.

[29] Rawia Salman dismissed Shawn Patey as her counsel because she believed he had been negligent and she cannot now several years after the fact commence an action for negligence against him. She is barred by the Limitations Act and for that reason alone her claim must be dismissed.

[30] It is to be regretted that there appears to have been a personality conflict between the plaintiff, Rawia Salman and the defendant, Shawn Patey, from an early stage in their relationship. However, her antipathy toward him, his advice and his representation is clear from the copious material that has been filed on this motion.

[31] Pursuant to Rule 20.04, this court shall grant summary judgment if I am satisfied that there is no genuine issue requiring a trial with respect to the claim and I am satisfied that it is appropriate to grant summary judgment. In coming to that determination, I must consider the evidence submitted by the parties and weigh that evidence, evaluate the credibility of any deponent and draw any reasonable inference from the evidence. There is much evidence that has been presented on this motion.

[32] I have given close attention to the considerable material that has been filed and to the submissions of counsel, as well as the lengthy submissions, sometimes emotional, of the plaintiff, Rawia Salman. I have turned again and again to Rawia Salman’s statement of claim, including her specific allegations of negligence set out in paragraph 17 of that statement of claim. I have considered all of the evidence in this case and have come without reservation to the conclusion that there is no genuine issue requiring a trial with respect to the claim or defence in this matter. I have weighed the evidence available on this motion and evaluated the credibility of the evidence on affidavit and I have drawn all reasonable inferences from such evidence. I have come to the conclusion that the defendant, Shawn Patey and his firm, the Patey Law Group acted with due diligence throughout in their representation of the plaintiff, Rawia Salman. There is no merit in fact or in law to the claims for negligence. Her expectation as to the outcome of her various claims may have been unrealistic by her perception. However, the relative failure of those claims was in no way the result of any negligence on the part of the defendant, Shawn Patey or his law firm. This motion for summary judgment is granted, the claims against Shawn Patey and the Patey Law Group are dismissed.

[33] If the parties cannot agree upon costs, they may address me in writing at my chambers in Kitchener within 60 days of publication of this ruling.

R.D. Reilly J.

Date: December 19, 2016