Tadesse Gebremariam and Meraff Tadesse v. Carole G. Jenkins, 2017 ONSC 3845

COURT FILE NO.: CV-16-563763 DATE: 20170621 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Tadesse Gebremariam and Meraff Tadesse, Plaintiffs AND: Carole G. Jenkins, Defendant

BEFORE: Justice Glustein

Reasons for decision

[1] By endorsement dated April 27, 2017 (the “Endorsement”), I made the following order:

(i) Pursuant to rule 2.1.01(3)(1), the registrar is directed to give notice to the plaintiffs in Form 2.1A that the court is considering making an order under rule 2.1.01 dismissing the action;

(ii) Pending the outcome of the written hearing under rule 2.1 or further order of the court, the action is stayed pursuant to s. 106 of the Courts of Justice Act, RSO 1990, c. C. 43 (see Gao v. Ontario WSIB et al., 2014 ONSC 6100, at para. 12);

(iii) The registrar shall accept no further filings in this action excepting only the plaintiffs’ written submissions if delivered in accordance with rule 2.1.01(3); and

(iv) In addition to the service by mail required by rule 2.1.01(4), the registrar is to serve a copy of this endorsement and a Form 2.1A notice on the plaintiffs and counsel for the defendant by email if the registrar has their email addresses.

[2] In the Endorsement, I set out the relevant pleadings and purported legal basis of the claim. I rely on the Endorsement and I do not repeat that analysis in these reasons.

[3] I am advised by the registrar that the plaintiffs were given notice in Form 2.1A and that the plaintiffs did not deliver written submissions in accordance with rule 2.1.01(3).

[4] On the basis of the pleadings as set out in the Endorsement, I find that the plaintiffs’ claim is frivolous, vexatious, or otherwise an abuse of the process of the court.

[5] Counsel for a defendant cannot owe any fiduciary duty to a plaintiff, nor the other pleaded causes of action of negligence, negligent misrepresentation, or “Obstruction of Justice against the Criminal Code of Canada section 139(2) against the Human Rights Code, R.S.O. 1990, c H. 19 as amended”. The law is settled that counsel’s duties are owed to his or her client, not to an opposing party.

[6] In addition to the legal obstacle which is determinative of the plaintiffs’ claim, the factual basis of the claim is frivolous. Accepting the allegations as proven for the purposes of these reasons, the defendant, as counsel for the defendants in the plaintiffs’ claim against the Society and the named personal defendants (the “Initial Action”) was entitled to file a notice of intent to defend for any of the defendants by whom she was retained in that action, regardless of whether they were yet served with the statement of claim. There can be no cause of action based on such conduct. Further, there is no “Rule of Civil Procedure” preventing her from doing so (even if the breach of such a rule could have justified a civil claim by the plaintiffs, which it could not).

[7] Further, the defendant, as counsel for the defendants in the Initial Action, cannot be liable to the plaintiffs for the decisions of Justice Myers or Justice Dunphy to strike the plaintiffs’ claim in the Initial Action (again assuming the allegations to be true that such decisions were made). While the plaintiffs plead that both the decisions of Justice Myers and Justice Dunphy in the Initial Action were “against the Rules of Civil Procedure Obstruction of Justice against the Criminal Code of Canada section 139(2) against the Human Rights Code, R.S.O. 1990, c. H. 19 as amended” (a legal conclusion which could not be sustained even if the plaintiffs’ factual allegations were accepted as true), those judicial decisions cannot ground a claim that the defendant, as counsel for the defendants in the Initial Action, could be personally liable to the plaintiffs.

[8] Finally, the plaintiffs’ claim that there was an “organized set up” between the defendant (as counsel for the defendants in the Initial Action) and Justice Myers is entirely unsupported by the pleadings, vexatious, and cannot be a viable legal basis for a claim against the defendant for “economical loss”.

[9] For the above reasons, I dismiss this action pursuant to the request of the defendant under Rule 2.1.01(6) of the Rules of Civil Procedure.

Justice Glustein Date: June 21, 2017