Court File No. FO-054-12
SUPERIOR COURT OF JUSTICE
PAUL REILLY
v.
JOHNSON AND JUNGER LAW FIRM
P R O C E E D I N G S
BEFORE THE HONOURABLE JUSTICE C. BRAID
On February 23, 2016
at Hamilton, Ontario
Appearances:
Mr. P. Reilly Plaintiff in Person
Mr. L. Century Counsel for the Defendant
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
WITNESSES
IN-CH
CR-EX
RE-EX
...None at this time
E X H I B I T S
EXHIBIT NUMBER ENTERED ON PAGE
…None entered at this time
Transcript Ordered....................... February 26, 2016
Transcript Completed..................... March 13, 2016
Ordering Party Notified.................. March 13, 2016
CITATION: Reilly v. Johnson and Junger Law Firm, 2016 ONSC 8188
TUESDAY, FEBRUARY 23, 2016
R U L I N G
BRAID, J. (ORALLY):
This is an action brought by the plaintiff as against the solicitors for his former spouse, Ms. Priest, for their actions during family law litigation involving the plaintiff. The defendant, George Johnson, was counsel to Ms. Priest but was never counsel to the plaintiff. Ms. Junger is a lawyer who worked at the same office with Mr. Johnson and now represents Ms. Priest following the death of Mr. Johnson. The majority of the allegations here in the claim deal with the conduct by Mr. Johnson.
This is a motion brought by the defendant law firm seeking to strike the statement of claim on the following grounds:
A) the claim discloses no reasonable cause of action because the defendant owed no duty of care to the plaintiff;
B) the claim is statute barred pursuant to the two year limitation period;
C) the claim is barred by res judicata and issue estoppel due to the issues already dealt with at the Ontario Court of Appeal, the Superior Court and the Supreme Court of Canada as well as the Law Society of Upper Canada; and/or
D) the action is frivolous, vexatious or otherwise is an abuse of the court.
FACTS
The statement of claim can be divided into two categories of allegations:
A) The plaintiff states that the defendant caused delays, distress and hardship over the course of family law litigation. Specifically the defendant, Mr. Johnson, is alleged to have made a threatening phone call in respect to an adjournment request and threatened to have the plaintiff “pay”.
B) The plaintiff states that, with respect to his motion to set aside the dismissal order, the defendant, Mr. Johnson, misled the Superior Court of Justice and the Court of Appeal with respect to whether the plaintiff was present at an earlier court hearing.
It is worth noting that, while I refer to the defendant law firm, there is some issue taken by the defendant as to whether or not they are a firm or whether they were simply two lawyers who practiced together. For purposes of the claim it is accepted factually on this motion that Johnson and Junger were a part of a law firm and collectively formed the defendant for purposes of the Rule 21 motion.
On June 13, 2013, the plaintiff filed a complaint with the Law Society of Upper Canada regarding George Johnson for “dishonesty by the defendant and the original threat for making me pay.” The language of this complaint was similar to the allegations in the statement of claim. George Johnson sent a letter in reply to the Law Society setting out his position. On October 30, 2013 the Law Society found that “the evidence does not support further regulatory proceedings” and they closed their file.
With respect to the allegation of dishonesty, the Law Society stated that, in carrying out his professional duties to his client, Mr. Johnson “…cannot be fairly characterized as having misled the Court.” With respect to the allegation of a threat, the Law Society stated that “…the evidence is insufficient to suggest that the lawyer made an inappropriate comment.”
The complaints made to the Law Society essentially mirror the complaints in the claim in relation to the conduct of George Johnson. In addition to those allegations, the plaintiff claims that “The defendant continues to cause unnecessary delays and fails to respond to calls and requests from my lawyer.” I understand that the allegations of continued conduct are in relation to Ms. Junger’s role as counsel for Mr. Reilly’s former spouse in the current ongoing family law proceedings.
ANALYSIS
- Rule 21 Motions
Rule 21.01(1)(a) provides that a party may move before a judge for the determination of a question of law where the determination of the question may dispose of all or substantially all of the action. The test to be applied on a Rule 21 motion is well established. The Court must accept the facts alleged in the statement of claim as true, unless they are patently ridiculous or incapable of proof. A statement of claim will be struck out where it is plain and obvious that the claim is certain to fail because it contains a radical defect. Leave to amend will not be granted if the defect which justifies striking out the claim goes to the very root of the action and is incapable of being cured by an amendment. That is the test that I must examine on the first part of the motion brought by the defendant.
- Is There a Reasonable Cause of Action?
I find that the defendants did not owe a duty of care to the plaintiff. This is acknowledged by the plaintiff in his responding materials on this motion. The law is clear that lawyers generally do not owe duties of care to anyone other than their clients.
In the case of Baypark Investments v. Royal Bank (2002) 2002 CanLII 49402 (ON SC), 57 O.R. (3d) 528 SCJ at paragraphs 32 and 33, the Court said the following:
[32] The question of the possibility of a solicitor owing a duty of care to the opposite party has arisen in Ontario. In Geo. Cluthe Manufacturing v. ZTW Properties Inc. (1995) 1995 CanLII 10684 (ON SC), 23 O.R. (3d) 370, the Divisional Court struck out such a plea, observing that there was no authority to support the proposition that a litigant or his solicitor owed a duty of care to an opposing party.
[33] In my view, these cases show that a suit against the lawyer for the opposite party for giving negligent advice to his client and thereby causing damage to the plaintiff is not tenable in law. That principle is not confined to litigation, but is also applicable to the commercial world. To hold otherwise would place solicitors in untenable conflict between their duty to their client and their need to protect themselves against their client's adversary.
In my view, those comments made by the Superior Court in the case of Baypark Investments are particularly appropriate in the application to this case. It would be untenable to place Mr. Johnson and/or Ms. Junger in a position where they had some sort of duty toward Mr. Reilly in the course of litigation in a family law proceeding. Even if I were to accept Mr. Reilly’s submission that the claim is framed in a breach of duty to the Court or breach of rules of professional conduct, these rules do not create the basis for civil liability to a party who is not the lawyer’s own client.
I agree generally with the submissions of the defence that the best manner of redress for any perceived harms by Mr. Reilly would be an appeal of decisions made at the family court proceeding, as he did do in this case. Mr. Reilly appealed the decision made in Family Court all the way to the Supreme Court of Canada. He clearly understood his rights and obligations in that litigation. In my view, there was never any legal duty owed by the lawyer Mr. Johnson to the plaintiff. Ms. Junger, as new counsel for Ms. Priest, also does not owe the plaintiff a duty of care. I would go one step further in finding that any claim that Ms. Junger continues to cause unnecessary delay in the family law proceeding and/or that she fails to respond to calls and requests from the plaintiff’s lawyer is not actionable in a civil action. As such, this action cannot succeed.
I will deal briefly with some of the other issues in the event that there is any appellate consideration of the issues before this Court.
- Is the claim barred by the Limitation Period?
The parties acknowledge that the basic limitation period under s.4 of the Limitations Act is two years. While it is true that all of the allegations in relation to Mr. Johnson were known well before the two year mark from when the claim was issued in December 2015, the plaintiff argues that the claim suggests that the conduct continues and therefore is not statute barred.
Although there is some dispute by the defendants about whether they practiced together in a law firm, on this motion I am to take the claim at its face value. I cannot find that the claim is clearly statute barred on this Rule 21 motion.
- Is the Claim Barred by Res Judiciata and Issue Estoppel?
The defendant argues that this action is an effort to re-litigate family law proceedings and a decision by the Law Society of Upper Canada. They argue that issue estoppel and/or res judicata ought to bring an end to these proceedings as all issues raised by these proceedings have been previously dealt with by those courts or bodies.
The test for res judicata to be successfully invoked is as follows:
(i) the issue must be the same as the one decided in the prior decision;
(ii) the prior judicial decision must have been final; and
(iii) the parties to both proceedings must be the same, or their privies.
In my view, the defendant falls short of having met the test for application of res judicata or issue estoppel. In the family law proceedings the defendants were not parties to the proceedings. With respect to the Law Society matter, it was simply a decision not to embark on a disciplinary proceeding against Mr. Johnson and did not involve a judicial decision or quasi-judicial decision with respect to the issues. I am not satisfied that res judicata or issue estoppel should be invoked in this case.
- Is the Action Frivolous, Vexatious or an Abuse of Process?
The defendant also moves to have the claim struck on the basis that the action is frivolous, vexatious or an abuse of process. The definition of a frivolous action is “one which on its face is so unreal that no reasonable or sensible person could bring it.” Similarly a “frivolous and vexatious proceeding” is one which is hopelessly factual and which is plain and obvious that it cannot succeed.
Although I have found that res judicata and issue estoppel do not apply in this case, this action is clearly a collateral attack on the family court decision and the Law Society of Upper Canada decisions. This is illustrated by Mr. Reilly’s comment that he has “fresh evidence” in the transcript from Justice LaFreniere. He complains that no one listened, that he was present at court before Justice LaFreniere, although the Court of Appeal and the lower Court have made comments otherwise. In my view, this is a case where the matters have already been dealt with by prior courts although it is not issue estoppel. It is a collateral attack and it is a frivolous action which should not proceed.
I have also commented previously on the fact that the claim against Ms. Junger cannot succeed. It would be outrageous in my view for a lawyer to be sued because of perceived delays or delay tactics that she takes on behalf of a client in a family law proceeding. In that sense the action is frivolous and an abuse of process.
With respect to an abuse of process, the Court has authority to dismiss an action which it determines to be an abuse of process. This is rooted in its inherent jurisdiction as well as Rule 21.01(3). One of the classic situations in which abuse of process is invoked is to prevent a multiplicity of proceedings or the re-litigation of issues already decided so as to avoid, among other things, a danger of inconsistent verdicts. Courts have also found attempts by parties to sue the opposing party’s lawyer to be an abuse of process: See Indal Metals v. Jordan Construction Management Inc. [1994] O.J. No. 1616 (Ont.Ct.Gen.Div.). In my view, as I noted earlier, this action is both frivolous and an abuse of process in the circumstances.
In the result, I find that the action must be struck as it discloses no reasonable cause of action and further because it is frivolous and is an abuse of the court process. In the result the action is dismissed in its entirety.
Mr. Century do you wish to make submissions as to costs?
MR. CENTURY: I do briefly, Your Honour. Now I recognize that the plaintiff is self-represented but with respect, the conduct exhibited by the plaintiff is exactly the kind of egregious abuse of the court’s process that warrants judicial reprimand. The plaintiff appealed the underlying issue all the way to the Supreme Court of Canada. He then brought Mr. Johnson before the Law Society over precisely the same issue, causing further anxiety and expense and he now brings Ms. Junger, namely Mr. Johnson’s widow, back to court over the same frivolous allegations against her deceased husband. Simply put, this has to end. In my respectful submission, a significant cost award is appropriate to achieve this. I have a bill of costs indicating both our partial and full indemnity rates which I can pass up.
THE COURT: Yes please. Thank you. I understand that since this is a motion to dismiss the action, you’re asking for cost of the action which are limited to a very basic review of the claim and then bringing this motion essentially.
MR. CENTURY: That’s right Your Honour. This motion was, be done really nearly immediately upon reviewing the claim so, there’s very little additional costs for the action that aren’t for this motion. You may note that the difference between the partial and the full rates are – it’s relatively minor. If I can just explain...
THE COURT: Yes please.
MR. CENTURY: There are specific rates under our firm’s retainer with Law Pro that are lower than our ordinary rates and so the substantial amount would ordinarily be higher but we’ve reduced it, in accordance with our retainer agreement with Law Pro.
THE COURT: Thank you. So even the full indemnity rate is a lower rate than you would ordinarily charge in your private practice is that what you’re saying?
MR. CENTURY: It is yeah you’ll see the partial rate is reflective of what would ordinarily be our partial rate in making submissions before you, but you’ll see the substantial rate would normally be a good portion higher than that.
THE COURT: Thank you. Mr. Reilly? Would you like to make submissions on costs?
MR. REILLY: Well I was – I did it all myself. Just the time I spent.
THE COURT: Okay. Maybe I can explain to you what happens now. Because this – the defendant has been entirely successful on the motion and I have made a decision that the claim is struck, your action is now at an end, you cannot advance this claim any further. Because it’s now at the completion, the defendant counsel has asked for costs of the entire action and that’s what this bill of costs includes, although it was at a very early stage so there aren’t a lot of costs other than the motion itself. There’s some time spent reviewing the claim, and then of course time to prepare and bring the motion. But traditionally it is the Court’s position to grant costs to the successful party, that’s usually the way things go. So if you think that I should do something else or if you think that these costs are not appropriate, this is your time to say so.
MR. REILLY: I can’t very well dispute his costs.
THE COURT: Okay. Thank you. As I noted previously I have made findings that this action was without merit as there is no cause of action advanced in the case that is a reasonable one. In addition, I have found that the action is frivolous and an abuse of process. I do have a concern about the fact as I noted earlier that this is an attempt at a collateral attack on family court proceedings and on a decision made by the Law Society of Upper Canada.
In reviewing the bill prepared by counsel for the defendant, I am of the view that it is extremely reasonable. The motion to strike the claim was brought at the earliest opportunity and it is clear from the bill of costs that there is very little additional costs expended on the action over and above the motion.
I have received the submissions of Mr. Century that the full indemnity costs are in fact a reduction of the ordinary rates of counsel and in my view they are very reasonable. In my view full indemnity is the appropriate amount to be awarded in this case. I will therefore award costs payable by the plaintiff to the defendant in the amount of $9,790.41. Mr. Century, given your concerns about the existence of the defendant as an entity, do you wish the costs paid to your law firm? Not quite sure how to do that.
MR. CENTURY: I think that’s a good idea Your Honour. We could obviously hold the funds in trust and deal with them appropriately.
THE COURT: So the firm of Goldblatt Partners L.L.P. in trust?
MR. CENTURY: That would be great Your Honour. You raised a good point as to the non-existence of the defendant as named as an entity.
THE COURT: I will put in trust for the defendant/Ms. Junger. Something like that.
MR. CENTURY: That works yes.
THE COURT: Okay.
MR. CENTURY: Of course our client is Law Pro which somewhat complicates things but I’m confident that matters can be dealt with appropriately.
THE COURT: I will just say in trust for the defendant?
MR. CENTURY: That might be easiest.
THE COURT: And then you can sort that out. Alright. Mr. Century do you have any submissions about time limits for payment of costs or do you wish me to just simply endorse to be paid forthwith?
MR. CENTURY: I haven’t come prepared with submissions. Forthwith seems appropriate in the circumstances. I also have a draft form of order if...
THE COURT: Yes, that would be great, thank you.
MR. CENTURY: As you’ll see I’ve left the costs amount blank.
THE COURT: Okay. So I have made an amendment to paragraph two. It now reads as follows: This Court orders that costs of the motion and the action are awarded to the defendant in the amount of $9,790.41. The plaintiff shall pay these costs forthwith to Goldblatt Partners L.L.P. in trust for the defendant. Alright? And I’ve signed the order.
Form 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
Maura Reilly
(Name of Authorized Person)
certify that this document is a true and accurate transcript of the recording of
Reilly v Johnson and Junger
in the
Superior Court of Justice
(Name of Case)
(Name of Court)
held at
Hamilton, Ontario
(Court Address)
taken from Recording
4799_700_20160223_094857__10_BRAIDC
, which has been certified in Form 1.
March 8, 2016
Original signed by Maura Reilly
(Date)
(Signature of Authorized Person(s))