Court File and Parties

Court File No.: CV-11-427702 Date: 2017-04-20 Ontario Superior Court of Justice

Between: Martin Ceh-Seremet and Dubrauka Kottnig-Ceh, Plaintiffs – and – Michael J. Webster, Defendant

Counsel: Alyssa Barrs & Sari Feferman, for the Plaintiffs Undefended

Heard: March 28, 2017

Reasons for Judgment

Madam Justice D.A. Wilson

[1] The Plaintiffs, Martin Ceh-Seremet [“Martin”] and Dubrauka Kottnig-Ceh [“Duda”], are husband and wife and bring this action in negligence against their former solicitor, Michael Webster [“Webster”]. Webster did not defend the action, so the trial proceeded in front of me as an undefended trial, with the Plaintiffs having to prove their damages.

[2] Each of the Plaintiffs testified. They also filed an affidavit of their family physician, Dr. Borgono, sworn March 26, 2017 as an exhibit, along with medical briefs.

Background

[3] Martin was involved in motor vehicle collisions on March 26, 1999 and July 14, 2001 and sustained injuries. Duda was also in the July 14, 2001 accident. She also suffered injuries in a slip and fall accident when she was getting off a TTC bus on December 23, 2008. The Plaintiffs retained Webster for all of these matters to advance claims for damages for personal injuries sustained by them to pursue statutory accident benefits for them.

[4] Webster settled the 1999 claim for the sum of $22,500, of which Martin was to net $15,000. Webster provided a cheque for Martin’s portion of the settlement funds in November, 2010. However, the cheque was returned by the bank because of insufficient funds, so Martin received nothing.

[5] The claims arising from the 2001 accident were settled in 2005 for the sum of $20,000, of which Martin and Duda received $14,000 between them.

[6] Despite being retained to do so, Webster failed to issue a claim for damages arising from the slip and fall accident, nor did he make an application for statutory accident benefits on Duda’s behalf.

[7] The Plaintiffs retained their current counsel in May, 2011 and correspondence was sent to Webster to obtain his files. Since no response was received, Webster was reported to the Law Society of Upper Canada and a Statement of Claim alleging negligence was issued on June 1, 2011. Webster failed to deliver a Statement of Defence and, consequently, he was noted in default on July 4, 2011.

[8] Webster’s license to practice law was revoked by an order of the Hearing Panel of the Law Society of Upper Canada dated March 20, 2013. LawPRO did not defend this claim on Webster’s behalf.

[9] In 2014, the Plaintiffs brought a motion for summary judgment and the presiding judge directed the matter proceed with viva voce evidence.

Martin

[10] Martin was born in Croatia in 1944 and came to Canada in 1968. He and Duda married in 1988 and Martin worked driving a taxi on a full-time basis.

[11] The accident of March 26, 1999 occurred when the other driver unexpectedly made a left turn in front of Martin. It was a strong impact. The airbags deployed and Martin was dazed. He was taken to the hospital with complaints of back pain and he followed up with his family doctor.

[12] Martin’s pain got increasingly worse and he was unable to go back to work driving the cab for a number of weeks. He returned on a part-time basis and continued to experience back pain and numbness in his right leg. In July 1999, when he reached to get a passenger’s purse from the trunk of the car, he felt excruciating pain and had to go to the hospital. A CT scan of his lumbar spine was done, which revealed a large disc herniation at L5-S1 with nerve root compression.

[13] Martin was referred to an orthopedic surgeon, Dr. Soon-Shiong, who recommended surgery. On December 20, 1999, Martin had a lumbar discectomy. He was unable to work for a month and attended physiotherapy for a long time. He was in a great deal of pain. He had to take very strong pain medication and steroid injections. He was only able to work approximately four hours per day.

[14] Martin could no longer participate in many activities, such as golf, tennis, cycling, and camping. In addition, he was unable to do the heavy work around the house, such as shoveling the snow, cutting the grass, and washing the windows. His intimate life with Duda was affected.

[15] On July 14, 2001, Martin’s car was rear-ended by another vehicle. His back pain and right leg radicular symptoms were exacerbated. He became depressed and had difficulty sleeping.

[16] Martin’s back and right leg symptoms persisted throughout the next few years and he was unable to work driving the cab for more than a few hours per day. In 2004, he developed weakness in his right foot. He underwent further imaging which revealed a massive bulging disc at L4-5/L5-S1 which was compressing the nerve root. On August 24, 2004, Martin underwent further surgery with Dr. Soon-Shiong in the form of a decompression.

[17] Following the surgery, he undertook more physiotherapy but, unfortunately, did not notice much difference in his pain levels. He took very strong narcotic medication on a regular basis to manage the pain.

[18] Martin had another MRI in February, 2006 and that imaging demonstrated a new disc herniation at L4. Martin came under the care of the neurosurgeon Dr. Ginsberg and he underwent a lumbar laminectomy and resection of a very large central disc herniation.

[19] Subsequent nerve studies done on Martin confirm chronic severe radicular dysfunction at L4-5 and L5-S1 which will not improve according to the affidavit evidence of Dr. Borgono.

[20] Martin testified that he continues to have difficulty controlling his bladder function, experiences painful leg cramps, and has a drop foot, for which he wears a special brace. He must walk with a cane and still has strong pain in his back and numbness in his right leg. He was never able to return to full-time work as a taxi driver after the first accident and many of his recreational activities have been adversely affected.

[21] Dr. Borgono deposes that Martin has not fully recovered from the effects of the two motor vehicle accidents and has never returned to his pre-accident functional level. He continues to be significantly restricted in his activities and cannot sit or stand for prolonged periods of time. He cannot lift or bend and stair climbing is problematic for him. Dr. Borgono opines that the prognosis for any further improvement is extremely unlikely.

Dubrauka (Duda)

[22] Duda was born in 1948 in Croatia and came to Canada in 1982. She did not work outside the home after she married Martin in 1988.

[23] On July 14, 2001, Duda was a passenger in a vehicle being driven by Martin when they were rear-ended while stopped for a red traffic light. She had pain in her shoulders, right foot, and right hip. She was taken to the hospital by ambulance and followed up with Dr. Borgono, who prescribed medication and sent her for physiotherapy. She was sent for an ultrasound of her right shoulder in May 2002 and it demonstrated a full thickness tear of the supraspinatus tendon.

[24] Duda was examined by the orthopedic surgeon Dr. Miniaci on June 12, 2002, but she decided to pursue conservative measures as opposed to undergoing surgery. Duda attended a great deal of therapy but continued to experience pain and was limited in her activities. She tried to avoid things that aggravated the shoulder pain, such as reaching overhead. She did not knit for two years but gradually returned to this hobby, although not as often as she did before the accident. Similarly, she loved to garden but was not able to do this for a few years.

[25] Duda started working as a waitress, part-time, in 2006. On December 23, 2008, while on her way to work, she stepped off a bus and landed in a snowbank. Her foot went through the mound of snow and she felt immediate pain in her left foot. Although she went to work, she had to leave because of the pain. Her foot swelled and she went to the emergency department of Toronto Western Hospital, where she was diagnosed with a fracture of her foot and placed in a cast.

[26] Duda used crutches for eight weeks and then took physiotherapy. She developed pain in her left hip. Her foot continues to swell and she noticed that her left foot is wider than her right foot. She cannot wear normal shoes because of the swelling in her foot.

[27] In April 2005, on the advice of her counsel Webster, Duda settled her claims from the 2001 accident for $20,000, of which she received the sum of $14,265. Although Webster was instructed to commence an action against the Toronto Transit Commission for injuries she sustained when she stepped off the bus in 2008, he failed to do so and never submitted the forms for her to receive statutory accident benefits.

Analysis

[28] This is a claim in negligence against the Defendant Webster. He failed to defend the action and has been noted in default so is deemed to admit the allegations made against him. His conduct is reprehensible. The Plaintiffs retained him to obtain compensation for the injuries they sustained in accidents which were not their fault. He ought to have advised them that he was not familiar with the area of personal injury law and referred them to a solicitor who practiced in the area. Instead, he accepted the retainer and failed to properly investigate and document the case.

[29] Webster settled the damages claim for the 1999 accident for the sum of $22,500 in January 2010. His cheque to Martin in the sum of $15,000 was returned by the bank because of insufficient funds; the Plaintiffs received nothing. Webster settled the claims arising from the 2001 accident in the sum of $20,000 in April 2005.

[30] The settlements of both claims were far below their value based on the medical evidence available at the time and constitute improvident settlements.

[31] Regarding Duda’s claim against the Toronto Transit Commission for the December 2008 incident, Webster failed to issue a claim within the limitation period and failed to apply for statutory accident benefits on her behalf, so Duda has received nothing as compensation. This was clear and obvious negligence on Webster’s part.

[32] I turn now to the issue of the proper damages to which the Plaintiffs are entitled as a result of Webster’s negligence. This ought to have been a simple exercise but, at the trial, I was not provided with a calculation of the loss of income being claimed by Martin. When I inquired of counsel what the quantum claimed for loss of income was, I was not provided with a figure but, rather, a “rough calculation” without any particulars. I had to request and receive the actual calculation of the loss of income being claimed in a supplementary submission. Counsel was unable to answer my inquiries as to why LawPRO did not defend the negligence claim against Webster or why no request was made for compensation from the fund that provides payment to victims who have been defrauded by their lawyers.

[33] The fact that a claim is undefended does not relieve counsel from the obligation of proving damages to the satisfaction of the court. In the case before me, I would have been greatly assisted by the provision of a statement of facts that I could have relied on and incorporated into my judgment. A medical chronology listing the medical imaging results, the dates of surgery, and the treatment undertaken would have been welcome.

[34] The solicitor for the Plaintiffs brought a motion for Summary Judgment in November 2014, which was not granted, and the presiding judge ordered that the damages had to be proven by way of viva voce evidence. That endorsement was given almost two and half years ago, yet there was no explanation provided to me as to this lengthy delay in proceeding with the assessment of damages.

[35] I found Martin to be a stoic man who gave his evidence in a straightforward fashion without any attempt to embellish it or exaggerate his injuries from the accidents. Without a doubt, Martin suffered serious injuries to his low back in the 1999 accident, namely a large disc herniation. He underwent surgical decompression and attended rehabilitation but continued to experience back pain, although there was some improvement. He had not returned to all of his previous activities, including driving the taxi, when he was involved in the 2001 accident.

[36] Following the second accident, his back felt worse and he experienced a drop foot. Imaging revealed disc herniation which encroached on the dural sac and the nerve root at S1. Martin had further back surgery in 2004, which resulted in only minor improvement and, according to the treating specialists, he has been left with significant residual disability. He must walk with a cane, has numbness and cramping in the right leg, and has back pain. The doctors have advised Martin against any further surgery. He has not been able to return to his athletic activities nor to the things he was responsible for around the house. His relationship with his wife continues to be affected by his restrictions.

[37] Martin was working full-time as a taxi driver prior to the accident, working long shifts, 10 to 12 hours per day. He has never returned to full-time driving since the first accident but continues to work a few hours a day driving the taxi. He was 55 years of age at the time of the first accident and is currently 72 years of age.

[38] I assess Martin’s non-pecuniary general damages for both accidents at $175,000, gross of deductibles. If it proves relevant in the future, I would assess his general damages arising from the 1999 accident at $100,000 and at $75,000 from the 2001 accident.

[39] Prior to the 1999 accident, Martin’s average income declared on his tax returns was $9,318.54. In 2000, he obtained his own taxi license which meant he no longer had to pay Co-Op a fee for the license. As a result, his income ought to have increased.

[40] A review of his tax returns demonstrates that in the years after the 2001 accident Martin earned on average approximately $10,000 per year. Had he been able to work on a full-time basis, a conservative estimate of his annual income for those years would be $20,000.

[41] I accept the calculations put forward by the solicitor for the Plaintiffs in their supplementary submissions as they are reasonable and based on the income declared in Martin’s income tax returns. I find, therefore, that Martin’s past loss of income from the date of the first accident to the present, rounded off, is $150,000.

Duda

[42] I found Duda to be a candid witness who answered questions in a direct fashion without any attempt to overstate her problems. She was born in 1948 so she was 53 years old at the time of the 2001 accident. She was 60 when she injured her foot stepping off the bus and will be 69 this year.

[43] Duda’s main injury from the motor vehicle accident was a tear of her rotator cuff on the right side. She fractured her foot in the 2008 incident. She has had other health issues, including cancer and another injury to her right foot in 2011, which caused her to stop working. She has essentially tried to live with her pain and avoid activities that aggravate her shoulder or foot. I assess her general damages for pain and suffering from the 2001 car accident at $50,000, gross of the deductible, and at $30,000 for the foot injury suffered in 2008. A claim for loss of income or other special damages was not advanced at trial.

[44] Duda has a claim pursuant to the Family Law Act, R.S.O. 1990, c. F.3 as a result of Martin’s injuries. I accept that she has had to provide caregiver services to her husband and that, at times, they have had to borrow money to make ends meet because Martin was unable to work. Her life has changed as a result of Martin’s injuries and restrictions. I assess her claim pursuant to the Family Law Act at $32,500, gross of the deductible.

Conclusion

[45] Martin is awarded the sum of $175,000 gross of any deductibles for his general damages as well as the sum of $150,000 for loss of income. He is entitled to prejudgment interest in accordance with the Courts of Justice Act, R.S.O. 1990, c. C.43.

[46] Duda is awarded the sum of $80,000 in general damages, gross of any deductibles. She is awarded the sum of $32,500 gross of any deductible for her claims pursuant to the Family Law Act. Pre-judgment interest shall be in accordance with the Courts of Justice Act.

[47] As a closing comment, I observe that the conduct of Webster was deplorable. Martin retained him because he knew Webster through the taxi industry. Webster was incompetent in the area of personal injury claims. He failed to obtain the necessary medical reports to prove the claims of Martin and Duda and failed to apply for the statutory accident benefits to which they were entitled. He recommended settlement of the cases at a fraction of their value. The Plaintiffs relied on his advice as their solicitor and settled the motor vehicle claims for nominal amounts, despite the fact that both of them had objective, serious injuries. To make matters worse, Webster gave them his personal cheque for settlement funds from the first accident and it was returned because of insufficient funds. He lied to Duda about her claim against the TTC and misled her. He failed to provide his files when requested and ignored court orders.

[48] This is a case where the Plaintiffs were injured through no fault of their own and they retained a solicitor to advise them of their rights and to protect their interests. Webster failed to do so and failed to admit his negligence, for reasons which were not explained to me. His conduct is appalling and merits sanction. Had punitive damages been claimed against Webster, I would have awarded them.

Costs

[49] The Plaintiffs are entitled to their costs from Webster, which I fix in the sum of $50,000 plus taxes, plus disbursements in the sum of $3,489.72.

D.A. Wilson J. Released: April 20, 2017