CITATION: Larizza v. The Royal Bank of Canada, 2017 ONSC 6140

COURT FILE NO.: CV-15-532647

DATE: 20171013

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

ANTOINETTE LARIZZA

Plaintiff

– and –

THE ROYAL BANK OF CANADA, ROYAL TRUST CORPORATION OF CANADA AS THE ESTATE TRUSTEE FOR THE ESTATE OF MARCELLE KAYE TRUST, THE BANK OF NOVA SCOTIA, WILDEBOER & DELLCELLE LLP, FASKEN MARTINEAU DUMOULIN LLP, FASKEN MARTINEAU DUMOULIN INTERNATIONAL LLP, MINTO GROUP INC., BASTEDO STEWART & SMITH, BRYAN SMITH, ALBERT ALLAN ROSENBERG, MARWA HOLDINGS INC., MARWA BLOOR STREET INC., M.A. INVESTMENTS INC., AND ROSENBERG INVESTMENT GROUP INC.

Defendants

Julian Heller and Neil Foley

for the Plaintiff

Gavin J. Tighe and Scott K. Gfeller

for the Defendants Fasken Martineau Dumoulin LLP, Fasken Martineau Dumoulin International LLP

Adam Grant

for the Defendant Minto Group Inc.

HEARD: July 13 and 14, 2017

AMENDED REASONS FOR JUDGMENT

FAVREAU J.:

Reasons for Judgment

Introduction

[1] The plaintiff, Antoinette Larizza, was the unfortunate victim of a fraudster, Albert Allan Rosenberg. She met Mr. Rosenberg in February 2012, and married him in March 2013. During the course of their relationship, Mr. Rosenberg persuaded Ms. Larizza to sell her house, move in with him, and give him over two hundred thousand dollars. In the summer of 2013, she became aware that Mr. Rosenberg was not who he purported to be, and that she had lost the money she gave him.

[2] Ms. Larizza brings this action against a number of defendants who she claims had a responsibility to protect her from Mr. Rosenberg, and to help her avoid her financial losses and the emotional distress he caused her. These defendants include Minto Group Inc. (“Minto”) which was the owner of the building in which Ms. Larrizza and Mr. Rosenberg resided, and Fasken Martineau Dumoulin LLP (“Faskens”), which was the law firm retained by Ms. Larrizza prior to her marriage to Mr. Rosenberg to provide advice on various matters. (Faskens Martineau Dumoulin International LLP is also named as a defendant on the same basis as Faskens, but is not a legal entity.)

[3] Minto and Faskens have both brought motions for summary judgment. Some of the claims against the other defendants remain outstanding while others have been settled.

[4] For the reasons that follow, the motions for summary judgment brought by Minto and Faskens are granted. I am satisfied that the record before me allows me to make a just and fair determination, and that a trial is not necessary to determine the claims against these defendants. There is no basis for finding that a trial is necessary to determine whether Minto or Faskens had an obligation to take steps to protect Ms. Larizza against Mr. Rosenberg’s fraudulent activities.

Events giving rise to the claim

Ms. Larrizza’s relationship with Mr. Rosenberg

[5] Ms. Larizza met Mr. Rosenberg on an online dating service on February 23, 2012. At that time, Ms. Larizza was 54 years old and the divorced mother of two adult children. She owned her own house, and worked as an executive director at the Etobicoke Medical Centre earning $110,000 per year.

[6] Ms. Larizza met Mr. Rosenberg in person on February 26, 2012, after which they started dating.

[7] At the beginning of their relationship, Mr. Rosenberg told Ms. Larizza that he was 56 years old and a wealthy Swiss-Canadian businessman who was heir to a fortune made from the Ovaltine beverage. In reality, Mr. Rosenberg was 69 years old, had been born in Egypt, had previously been convicted of fraud on a number of occasions, and was not the heir to any fortune.

[8] In July of 2012, at Mr. Rosenberg’s urging, Ms. Larizza sold her house and quit her job. She then moved in with Mr. Rosenberg in the summer of 2012. They lived in a penthouse owned and managed by Minto located at 61 Yorkville Avenue, in Toronto.

[9] Ms. Larizza and Mr. Rosenberg married on March 30, 2013.

[10] During their time together, Mr. Larizza gave Mr. Rosenberg various sums of money, on the understanding in some cases that he needed to borrow the money because his own money was tied up abroad and in other cases that he would be investing the money on her behalf. The amounts and timing were as follows:

a. $5,000 in April 2012 from her savings;

b. $150,000 on August 18, 2012, from the proceeds of sale of her house;

c. $30,000 on October 5, 2012 from her Visa card; and

d. $45,000 on October 9, 2012 from her line of credit.

[11] In August 2013, Ms. Larizza became concerned about financial issues and confronted Mr. Rosenberg. Mr. Rosenberg then assaulted Ms. Larizza, after which he was arrested.

[12] In the early fall of 2013, Ms. Larizza became aware that Mr. Rosenberg was a serial fraudster who had previously been incarcerated a number of times since the mid-1980s.

[13] On October 11, 2013, Mr. Rosenberg pleaded guilty to assault and a number of fraud charges. He was sentenced to 60 months in prison.

Minto property rental

[14] Minto is the owner of a building at 61 Yorkville Avenue, in Toronto, which is comprised of luxury rental suites (the “Building”).

[15] At the time Ms. Larizza and Mr. Rosenberg became involved, Mr. Rosenberg lived in a unit on the 9th floor of the Building. In May of 2012, Mr. Rosenberg inquired about renting a penthouse in the Building.

[16] Minto then performed a credit check on Mr. Rosenberg through Equifax. Based on its review of the credit report, Minto concluded that there was “insufficient” credit information in the report about Mr. Rosenberg to justify renting him the penthouse. (It turns out that the other apartment in the Building that Mr. Rosenberg was currently living in had been rented in the name of Mr. Rosenberg’s previous common law partner.) Mr. Rosenberg’s credit report included prior credit inquiries that listed two inquiries by “Correction Service” made in 2009.

[17] Having determined that Mr. Rosenberg’s credit history was insufficient, Minto asked Mr. Rosenberg for the name of someone else on whom a credit check could be done. Mr. Rosenberg provided Ms. Larizza’s name. Without having direct communications with Ms. Larizza or getting her consent to the credit check, Minto obtained a credit report on Ms. Larizza from Equifax. The report showed that Ms. Larizza had a strong credit rating that would be sufficient for the purpose of leasing the penthouse.

[18] On May 23, 2012, Ms. Larizza signed a lease for the Penthouse. The term of the lease was from July 1, 2012 to June 30, 2013, and the rent was $10,225 per month. In this action, Ms. Larizza claims that she had no involvement in the negotiation of the lease, and that Mr. Rosenberg conducted all negotiations. She claims that she signed the lease late on a Friday afternoon at which time she felt rushed, and she believed that the lease was in Mr. Rosenberg’s name and that she was only signing as an occupant. Ms. Larizza also claims that throughout the tenancy, she thought that Mr. Rosenberg was the tenant. In fact, the document signed by Ms. Larizza shows her on the front page which she initialed as the tenant and Mr. Rosenberg as an occupant, and she signed the last page above the word “tenant”.

[19] In February of 2013, Ms. Larizza and Mr. Rosenberg advised Minto in writing that they intended to exercise their option to extend the lease, and the lease was accordingly extended to June 30, 2014.

[20] Throughout the tenancy, Mr. Rosenberg made the payments on the lease.

[21] Minto did not receive payments for the rent on the penthouse for the months of July and August 2013. In mid-August, 2013, Minto wrote to Mr. Rosenberg and Ms. Larizza to notify them that $20,450 was owed in rent, and that Minto would commence legal action if they failed to pay the outstanding rent.

[22] By September 2013, Minto had still not received payment for the rent, and it started an application against Mr. Rosenberg and Ms. Larizza before the Landlord and Tenant Board to terminate the tenancy. At the hearing, the Board determined that only Ms. Larizza was a proper respondent on the application as she was the tenant under the lease. The Board also dismissed the application on the basis of mootness, because by the time the hearing took place Ms. Larizza had already vacated the penthouse.

[23] Minto never did receive payment for the rent owed from July 2013 to September 2013. Minto has advised Ms. Larizza that it does not intend to seek payment of the outstanding money owed under the lease given that she was the victim of Mr. Rosenberg’s fraud.

Faskens retainer

[24] In early September, 2012, Ms. Larizza was referred to Elena Hoffstein, a partner at Faskens. Ms. Hoffstein specializes in estate planning and personal tax matters. In the statement of claim and in her affidavit, Ms. Larizza states that she retained Ms. Hoffstein to advise her “regarding a pre-nuptial agreement, estate planning, and a trust fund”.

[25] The referral was made by John Kutkevicius, a lawyer with the firm of Wildeboer & Dellelce LLP (“Wildeboer”). On this motion, it is Ms. Hoffstein’s evidence that it was her understanding that Mr. Kutkevicius acted for Mr. Rosenberg in relation to various financial and personal matter. In contrast, it is Ms. Larizza’s position that Wildeboer acted for both her and Mr. Rosenberg in relation to various financial and personal matters.

[26] However, there is no dispute that Ms. Hoffstein was to act for Ms. Larizza alone, and was not retained by Mr. Rosenberg. Ms. Hoffstein never met Mr. Rosenberg nor did she have any direct communications with him.

[27] Ms. Hoffstein and Ms. Larizza met on September 10, 2012. This was their only in person meeting. Ms. Hoffstein has notes from that meeting that show that Ms. Larizza gave Ms. Hoffstein the following information during the meeting:

a. Ms. Larizza and Mr. Rosenberg had met through an online dating service, and they planned to marry in early November, 2012; and

b. Ms. Larizza told Ms. Hoffstein that Mr. Rosenberg was a wealthy Swiss businessperson, and that he planned to purchase a $10 million insurance policy, naming as the beneficiary a trust for the benefit of Ms. Larizza and her two daughters

[28] Ms. Hoffstein was also advised that Mr. Rosenberg had a lawyer in Switzerland who was preparing a pre-nuptial agreement.

[29] There was no written retainer setting out the scope of the work Ms. Hoffstein was to undertake on Ms. Larizza’s behalf. However, Mr. Hoffstein’s evidence on the motion is that, based on her initial meeting with Ms. Hoffstein and her communications with Mr. Kutkevicius, she was retained exclusively to perform the following services:

a. Providing estate planning advice to Ms. Larizza in connection with the preparation of Ms. Larizza’s will prior to her marriage;

b. Providing advice to Ms. Larizza in relation to the creation of the trust Mr. Rosenberg intended to create; and

c. Preparing a Power of Attorney for Property and a Power of Attorney for Personal Care naming Mr. Rosenberg as Ms. Larizza’s attorney and one of her daughters as the alternate attorney.

[30] With respect to the pre-nuptial agreement, Ms. Hoffstein’s evidence is that during their initial meeting, she advised Ms. Hoffstein that she did not practice family law, but that once Mr. Rosenberg’s lawyers in Switzerland had prepared the pre-nuptial agreement, Ms. Hoffstein would refer Ms. Larizza to a family law lawyer. In her evidence on the motion, Ms. Larizza disputes that Ms. Hoffstein advised her that she was not a family law lawyer and that she would be referred to a family law lawyer once the draft pre-nuptial agreement was available.

[31] Following their initial meeting, the balance of the communications between Ms. Hoffstein and Ms. Larizza took place primarily through emails exchanged between October 17, 2012 and January 2013. In that time period, it appears that Ms. Hoffstein took steps to move forward with the matters on which she had been retained. However, none of the tasks were completed because she did not receive instructions or information requested that would allow her to complete the tasks.

[32] The chronology of communications is as follows:

a. On October 17, 2012, Ms. Hoffstein sent an email to Ms. Larizza requesting information for the will preparation and advising Ms. Larizza that she should finalize her will before her marriage so that it would not be revoked at the time of marriage. She also advised Ms. Larizza that she had not received anything from Ms. Rosenberg’s lawyer about the pre-nuptial agreement.

b. On October 17, 2012, Ms. Hoffstein also received email correspondence from Mr. Rosenberg and his lawyer, Mr. Smith, wherein they advised that the early November wedding date was being moved to late November because the lawyers in Switzerland had not yet completed the pre-nuptial agreement.

c. On November 5, 2012, Ms. Hoffstein had a discussion with Mr. Kutkevicius about the structure of the proposed life insurance policy and trust.

d. On November 12, 2012, Ms. Hoffstein’s law clerk wrote to Ms. Larizza to advise that the draft will and power of attorney were ready, requesting instructions about how the documents were to be sent to Ms. Larizza.

e. In response, on November 14, 2012, Ms. Larizza advised that the wedding had been postponed and that she would therefore not require the estate planning previously discussed.

f. Later that day, Ms. Hoffstein wrote to Ms. Larizza, to explain that if she did not make a new will “in contemplation of marriage”, her current will would be revoked upon marriage. She suggested that, under the circumstances, Ms. Larizza had two choices: she could finalize the new will now or wait until she knew the new date for the marriage and finalize the will then.

g. Ms. Larizza responded on November 14, 2012, that she would wait until she knew the new date for the marriage.

h. Throughout November, 2012, Ms. Hoffstein had further communications with Mr. Kutkevicius about the structure of the trust.

i. On November 29, 2012, Ms. Hoffstein’s law clerk and assistant sent Ms. Larizza copies of the draft will and powers of attorney and requested comments on the documents.

j. On December 14, 2012, Ms. Larizza provided information requested by Ms. Hoffstein and some comments on the draft will.

k. On December 20, 2012, Ms. Hoffstein sent Ms. Larizza a letter enclosing an invoice and advising that she was making revisions to the will.

l. On January 2, 2013, Ms. Hoffstein sent Ms. Larizza a draft of the trust, and asked Ms. Larizza if a new wedding date had been set.

m. On January 4, 2013, Ms. Hoffstein sent Ms. Larizza a further email enclosing the revised will, and asking again about the status of the wedding.

n. On January 25, 2013, Ms. Hoffstein sent a further bill to Ms. Larizza.

o. On May 14, 2013, Ms. Hofftein sent another bill to Ms. Larizza and enquired about whether she had any comments on the draft estate documents.

[33] Ms. Hoffstein never received a response to her inquiries of December 2012 and January 2013 about the date of the wedding nor did she receive payment from Ms. Larizza for the services she provided.

[34] Without advising Ms. Hoffstein, Ms. Larizza married Mr. Rosenberg on March 30, 2014. By that time, Ms. Larizza had not signed the will or powers of attorney prepared by Ms. Hoffstein nor had the trust been finalized. In addition, Ms. Hoffstein never received the draft pre-nuptial agreement that was to be prepared by lawyers in Switzerland.

[35] On October 10, 2013, Faskens’ collection department tried to contact Ms. Larizza in connection with her unpaid accounts. The response came from the Toronto Police Service, indicating that Ms. Larizza had been the victim of fraud perpetrated by Mr. Rosenberg.

[36] Ultimately, Ms. Larizza did not pay for the services provided by Ms. Hoffstein, and Faskens has chosen to write off the outstanding accounts given Mr. Rosenberg’s fraud.

Statement of Claim

[37] Ms. Larizza originally commenced this action on July 17, 2015. Besides Minto and Faskens, the claim names the following defendants:

a. The Royal Bank of Canada and Royal Trust Corporation of Canada as the Estate Trustee for the Estate of the Marcelle Kaye Trust, on the basis that these financial institutions provided services to Ms. Larizza and Mr. Rosenberg;

b. The Bank of Nova Scotia, also on the basis that the bank provided financial services to Ms. Larizza and Mr. Rosenberg;

c. Wildeboer & Dellelce LLP (“Wildeboer”), on the basis that the law firm acted for Ms. Rosenberg and Ms. Larizza in connection with a number financial and personal matters;

d. Bastedo Stewart & Smith and Bryan Smith, on the basis that the law firm and lawyer acted for Mr. Rosenberg in respect of family law matters;

e. Mr. Rosenberg; and

f. Marwa Holdings Inc., Marwa Bloor Street Inc., M.A. Investments Inc. and Rosenberg Investment Group Inc., which were corporations owned or controlled by Mr. Rosenberg.

[38] The claims against The Bank of Nova Scotia, Bastedo Stewart & Smith and Bryan Smith have all been settled. Mr. Rosenberg’s corporations have been noted in default.

[39] The claim alleges that Mr. Rosenberg has a long history of fraudulent activities for which he has been previously convicted and imprisoned. The claim against all of the defendants, except as against Mr. Rosenberg and his companies, is based on an allegation that, given their various dealings with Mr. Rosenberg and Ms. Larizza, they each had a duty to protect Ms. Larizza from Mr. Rosenberg’s fraud.

[40] With respect to Faskens, the claim alleges that a lawyer at Wildeboer referred Ms. Larizza to Ms. Hoffstein at Faskens. The claim alleges Wildeboer referred Ms. Larizza to Faskens to ensure that she was not a “golddigger”. The claim alleges that Ms. Hoffsten advised Ms. Larizza “regarding the prenuptial agreement, estate planning, and the trust created for her benefit”. The claim alleges that Faskens and Wildeboer should have ensured that Ms. Larizza obtained independent legal advice, and that Faskens should have investigated Mr. Rosenberg and avised Ms. Larizza of his criminal background.

[41] With respect to Minto, the claim alleges that Minto conducted a credit check without Ms. Larizza’s knowledge and that she signed the lease on the understanding that she was an occupant and not a tenant. Ms. Larizza alleges that while she was not obligated to repay Minto for the unpaid rent, Minto harmed her credit rating by reporting the arrears to a credit agency. Ms. Larizza further alleges that Minto should have warned her about Mr. Rosenberg’s fraudulent activities.

[42] The statement of claim was amended on May 12, 2017, to add a claim that Minto either intentionally or negligently breached the Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5 (“PIPEDA”), by conducting the credit check without Ms. Larizza’s permission and contrary to Minto’s internal policies.

Test on a motion for summary judgment

[43] Under subrule 20.04(2) of the Rules of Civil Procedure, summary judgment is to be granted if the Court is satisfied that there is no genuine issue requiring a trial.

[44] As set out in Hryniak v. Mauldin, 2014 SCC 7, at para. 49, there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits using the summary judgment process. This is the case when the process: “(1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.”

[45] On a motion for summary judgment, the judge should first determine if there is a genuine issue requiring a trial based on the evidence before him or her without using the fact-finding powers in subrule 20.04(2.1). If there appears to be a genuine issue requiring a trial, Rule 20.04(2.1) permits the motion judge, at his or her discretion, to: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence unless it is in the “interest of justice” for these powers to be exercised only at trial: Hryniak v. Mauldin, supra, at para. 66. The motion judge is also permitted to use the expanded powers under Rule 20(2.2) to direct procedures such as a mini-trial, rather than a full trial.

[46] The parties may not rely on the prospect that additional evidence may be tendered at trial; parties must put their best foot forward: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 (Ont. S.C.J.), at para. 26, aff’d 2014 ONCA 878 (Ont. C.A.), leave to appeal to SCC refused, [2015] S.C.C.A. No. 97 (S.C.C.).

[47] As held by Perell J. in Levac v. James, 2016 ONSC 7727, at para. 132:

Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial: Dawson v. Rexcraft Storage & Warehouse Inc., 1998 4831 (ON CA), [1998] O.J. No. 3240 (Ont. C.A.); Bluestone v. Enroute Restaurants Inc., (1994), 1994 814 (ON CA), 18 O.R. (3d) 481 (Ont. C.A.); Papaschase Indian Band No. 136 v. Canada (Attorney General), 2008 SCC 14, [2008] 1 S.C.R. 372 (S.C.C.) at para. 11. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) (3d) 423 (Ont. Gen. Div.), aff’d [1007] O.J. No. 3754 (Ont. C.A.).

[48] When considering whether it is in the interest of justice to grant summary judgment, in Hryniak v. Mauldin, at para. 60, the Supreme Court addressed circumstances such as in this case where some parties, but not all parties, bring motions for summary judgment:

The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant summary judgment against a single defendant. Such partial summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. On the other hand, the resolution of an important claim against a key party could significantly advance access to justice, and be the most proportionate, timely and cost effective approach.

[49] In more recent decisions, the Court of Appeal for Ontario has cautioned against granting partial summary judgment except where there is “no risk of duplicative or inconsistent findings at trial and that granting summary judgment [is] advisable in the context of the litigation as a whole”: Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 6319 at para. 4. See also: Hamilton (City) v. Their + Curran Architects Inc., 2015 ONCA 64 wherein, at para. 22, the Court held that “a summary judgment motion judge commits an error in principle when he or she fails to assess the advisability of the summary judgment process in the context of the litigation as a whole”.

Motion for summary judgment by Minto

[50] The plaintiff bases her claim against Minto on the following causes of action:

a. Intrusion upon seclusion;

b. Breach of contract;

c. Negligence;

d. Negligent misrepresentation; and

e. Intentional or negligent infliction of mental distress.

Intrusion upon seclusion

[51] The elements of intrusion upon seclusion are:

a. The defendant’s conduct must be intentional or reckless;

b. The defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and

c. A reasonable person would regard invasion as highly offensive, causing humiliation, or anguish.

(See Jones v. Tsige, 2012 ONCA 32 at paras. 70-71.)

[52] Proof of damages is not required, but the Court of Appeal has emphasized that “given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum”: Jones v. Tsige, supra, at para. 71. Therefore, if the plaintiff can establish the three elements of the tort, she may be entitled to a modest amount of damages.

[53] In this case, Ms. Larizza’s claim for intrusion upon seclusion is based on her allegation that Minto conducted a credit check on her without her authority or knowledge. Specifically, she relies on Minto’s own policy which precludes credit checks without consent, the Credit Reporting Act, R.S.O 1990, c. C.33 (the “CRA”) and PIPEDA.

[54] Minto concedes that the first element of the tort of intrusion upon seclusion is met on the basis that the request for a credit check on Ms. Larizza was intentional. However, Minto disputes the second and third elements of the test.

[55] On the second element, Minto agrees that it had a policy requiring consent for credit checks. However, it argues that the policy does not have the status of a law, and it was in fact permitted by the CRA and PIPEDA to conduct a credit check on Ms. Larizza without her explicit consent.

[56] With respect to the CRA, the plaintiff argues that the statute precluded Minto from obtaining a credit check without her permission. However, in my view, Minto did not breach the CRA when it obtained the credit check. Section 8(1)(d)(ii) of the CRA explicitly permits that a credit check be obtained when the person requesting the information “intends to use the information in connection with the entering into or renewal of a tenancy agreement”, which was the purpose for which Minto obtained the credit check in this case. In addition, the circumstances prescribed by the CRA in which notice of the intention to do a credit check is required do not apply to this case. In accordance with section 10(2)(a) of the CRA, notice is required where the report contains “personal information”, which is defined as “information other than credit information about a consumer’s character, reputation, health, physical or personal characteristics or mode of living or about any other matter concerning the consumer”. The only information Minto is alleged to have obtained in this case is “credit information”, and is not information about her character, reputation, health or personal characteristics. Pursuant to section 10(2)(b), the other situation when notice is required is where the purpose of the report is to extend credit to someone who has not requested credit, which again does not apply in this case.

[57] In my view, it appears that there may have been a contravention of PIPEDA. PIPEDA defines “personal information” very broadly as “information about an identifiable individual”. PIPEDA applies to an organization, such as Minto, that “collects, uses or discloses [personal information] in the course of commercial activities”. Principle 4.3 of Part 1 of PEPIDA states that the knowledge and consent of the individual are required for the collection, use, or disclosure of personal information, except where inappropriate. In this case, Minto relies on section 7(1)(d) PIPEDA as an exception to the requirement for consent. Section 7(1)(d) provides that an organization is permitted to obtain personal information without an individual’s consent if “the information is publicly available and is specified by the regulations”, and SOR/2001-7, which is the applicable regulation made under PIPEDA, provides that information made publicly available in a registry is prescribed for the purpose of section 7(1)(d) of PIPEDA:

1(c) personal information that appears in a registry collected under a statutory authority and to which a right of public access is authorized by law, where the collection, use and disclosure of the personal information relate directly to the purpose for which the information appears in the registry.

[58] “Registry” is not defined in PIPEDA or the regulation, but I do not accept Minto’s argument that Equifax is a “registry” as intended in the regulation. The term is qualified by reference to “collected under a statutory authority”, which suggests the activities of a publicly operated land registry or other such mandated collectors of information.

[59] Accordingly, in my view, Minto may have contravened PIPEDA when it failed to obtain Ms. Larizza’s consent prior to conducting the credit check. However, this does not end the inquiry in relation to the second element of the test. Notably, contravention of a statute on its own does not give rise to a cause of action, and PIPEDA contains its own regimen for complaints, investigations and resolutions. In addition, the second element of the test requires that the defendant invade the “private affairs or concerns” of the plaintiff. In Powell v. Shirley, 2016 ONSC 3677 at para. 87, this court considered whether the information in a credit report is the type of information over which a person has a legitimate privacy interest. The Court found that credit checks do not give rise to such an interest because they tend to contain information about dealings with third parties:

Much of the credit report relates to disclosure of the simple fact that other identified third parties had made requests to the relevant credit bureau for the provision of information concerning the plaintiffs. In my view, a request for information about the plaintiffs cannot be equated with information about the plaintiffs. Moreover, it seems to me that a record compiling details of who may have made such requests to the credit bureau, and when those requests were made, without any apparent involvement whatsoever of the plaintiffs, is not a record in respect of which the plaintiffs could or would have had any reasonable expectation of privacy.

To the extent the credit report discloses the existence of formal collection proceedings pursued by third parties against the plaintiffs, and/or judgments obtained by third parties against the plaintiffs, it should be remembered that such proceedings and judgments almost certainly would be a matter of public record. It may be true that the credit bureau makes a summary of such information more readily available than it would be if a party seeking such information otherwise had to expend the time and resources necessary to attend at each and every courthouse in Ontario or elsewhere, and perform a thorough search of court files, generally accessible to the public in an open courts system, for records of litigation, (including claims, judgments, writs of execution and other formal debt enforcement measures), relating to Mr and/or Mrs Powell. In my view, however, that does not change the inherently public and non-private nature of the underlying information.

It seems to me that there is a significant difference and distinction to be made between situations involving financial records relating to an individual, maintained by that individual's bank or other institution, in respect of which an individual may have a legitimate and understandable expectation of privacy, and situations where a person has dealt with a third party in an arm's length commercial transaction leaving that third party with a debt or alleged debt against the individual which it wishes to pursue. In my view, records concerning that third party's assertion of a debt, and efforts to pursue such a debt, are very unlikely to be records in respect of which the debtor or alleged debtor would have a legitimate or reasonable expectation of privacy.

[60] Similar third party information is contained in Ms. Larizza’s credit report. Accordingly, the request for Ms. Larizza’s credit report without her consent, while it may have contravened PIPEDA, was authorized by the CRA and, given the nature of the information, in my view would not constitute and invasion of Ms. Larizza’s personal affairs.

[61] Even if Minto did not have a legal justification for conducting the credit check, I am satisfied that the circumstances under which the search was conducted do not meet the third element of the tort of intrusion upon seclusion. I agree with Minto that a trial is not necessary to determine whether a reasonable person would regard the invasion as highly offensive, causing humiliation or anguish. In Jones v. Tsige, supra, the Court of Appeal for Ontario recognized the tort of intrusion upon seclusion in circumstances where the defendant, who was in a common law relationship with the plaintiff’s former husband, was surreptitiously viewing the plaintiff’s banking records. In that case, the Court held that a reasonable person would view the defendant’s conduct as highly offensive (see para. 89). In contrast, in Powell v. Shirley, supra, this Court dismissed a claim for intrusion upon seclusion on a motion for summary judgment in relation to a credit report obtained in the context of a lengthy real estate dispute. In that context, the Court found that the defendant’s actions were not highly offensive, in part, because of the context in which the credit report was obtained and because it was not disseminated to anyone.

[62] In my view, this case is more similar to Powell v. Shirley, supra, than to Jones v. Tsige, supra. In this case, Minto believed that it was justified in obtaining the report. Minto obtained the credit report for the purpose of determining whether to rent the penthouse to Ms. Larizza and Mr. Rosenberg. There was no improper or nefarious purpose. In retrospect it would have been best for Minto to obtain Ms. Larizza’s direct consent, but at the time there was no reason for Minto to believe that Mr. Rosenberg was not speaking on her behalf. Minto did not use the credit report for any purpose other than deciding whether to rent the unit to Ms. Larizza and there is no evidence that the information was disseminated or otherwise used improperly.

[63] It is worth noting that Ms. Larizza’s claim against Minto is not founded on allegations that she felt shocked, humiliated or aguished by the fact that Minto conducted the credit check. Rather, the thrust of her claim is that Minto failed to protect her from Mr. Rosenberg.

[64] Accordingly, in my view, Ms. Larizza’s claim against Minto for intrusion upon seclusion does not raise a triable issue.

Breach of contract

[65] The only contract between the parties in this case was the lease between Ms. Larizza and Minto. There is no basis for finding that Minto breached the terms of the lease. The lease required Minto to rent the penthouse to Ms. Larizza as a tenant and Mr. Rosenberg as an occupant in exchange for monthly rent payments. Ms. Larizza does not allege that Minto breached this obligation nor is there any basis for finding that it did so.

[66] In fact the only breach that occurred in this case was the failure by Ms. Larizza and Mr. Rosenberg to pay rent as of July 2013. The tenancy was terminated on that basis and Minto has not sought to recover the unpaid rent from Ms. Larizza.

[67] In advancing the breach of contract argument, Ms. Larizza relies on the duty of good faith recognized by the Supreme Court of Canada in Bhasin v. Hrynew, 2014 SCC 71. The conduct Ms. Larizza complains about are Minto’s actions prior to the formation of the lease, namely the fact that Minto obtained the credit check without her consent, the fact that Minto dealt primarily with Mr. Rosenberg in negotiating the lease, and her contention that she was not aware that she was listed as the tenant on the lease. She argues this conduct shows that Minto breached a general duty of good faith.

[68] However, the flaw in this argument is that the duty of good faith recognized by the Supreme Court in Bhasin v. Hrynew, supra, at para. 73, arises in the context of the performance of the contract, and not from the circumstances leading up to the formation of the contract. Moreover the obligation of good faith in the performance of a contract is a requirement not to lie or mislead the other party in the performance of the contract:

In my view, we should. I would hold that there is a general duty of honesty in contractual performance. This means simply that parties must not lie or otherwise knowingly mislead each other about matters directly linked to the performance of the contract. This does not impose a duty of loyalty or of disclosure or require a party to forego advantages flowing from the contract; it is a simple requirement not to lie or mislead the other party about one’s contractual performance. Recognizing a duty of honest performance flowing directly from the common law organizing principle of good faith is a modest, incremental step. The requirement to act honestly is one of the most widely recognized aspects of the organizing principle of good faith: see Swan and Adamski, at § 8.135; O’Byrne, “Good Faith in Contractual Performance: Recent Developments”, at p. 78; Belobaba; Greenberg v. Meffert (1985), 1985 1975 (ON CA), 50 O.R. (2d) 755 (C.A.), at p. 764; Gateway Realty, at para. 38, per Kelly J.; Shelanu Inc. v. Print Three Franchising Corp. (2003), 2003 52151 (ON CA), 64 O.R. (3d) 533 (C.A.), at para. 69. For example, the duty of honesty was a key component of the good faith requirements which have been recognized in relation to termination of employment contracts: Wallace, at para. 98; Honda Canada, at para. 58.

[69] In this case, Ms. Larizza does not complain about Minto’s performance under the lease or even that Minto was dishonest in the performance of its contractual obligations, but rather that Minto failed to take steps to protect Ms. Larizza from Mr. Rosenberg in the contract formation.

[70] In my view, it is evident based on the record before me that Ms. Larizza does not have a viable claim for breach of contract against Minto.

Negligence

[71] Ms. Larizza alleges that Minto was negligent in failing to disclose the outcome of Mr. Rosenberg’s credit check and that it was generally negligent in failing to warn Ms. Larizza about Mr. Rosenberg.

[72] In order to make out a claim in negligence, Ms. Larizza must establish that:

a. Minto owed her a duty of care;

b. Minto failed to meet the standard of care;

c. Minto was the cause of Ms. Larizza’s damages; and

d. Ms. Larizza sustained compensable damages.

[73] I agree with Minto that Ms. Larizza cannot establish that Minto owed her a duty of care, that Minto failed to meet the standard or care or that Minto was the cause of Ms. Larizza’s damages.

[74] The two stage Anns test is to be used to determine whether Minto owed Ms. Larizza a duty of care. At the first stage, the Court considers whether there is sufficient proximity between the parties to find that it would be fair and just to impose a duty of care as well as whether the “harm is a reasonably foreseeable consequence of the conduct in question”. In considering the issue of proximity, the Court looks at the expectations of the parties, representations, reliance, and the nature of the property interest involved. As part of the proximity inquiry, the Court is to consider whether the relationship between the parties has already been recognized as a relationship giving rise to a duty of care: Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537 at paras. 30-31.

[75] Only if a duty of care is found at the first stage is it necessary to consider the second stage of the Ann test, which requires the Court to consider whether there are residual policy reasons that justify negating a prima facie duty of care:

These are not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally. Does the law already provide a remedy? Would recognition of the duty of care create the spectre of unlimited liability to an unlimited class? Are there other reasons of broad policy that suggest that the duty of care should not be recognized?

(Cooper v. Hobart, supra, at para. 37)

[76] The courts have not recognized a general duty of care owed by landlords to tenants or potential tenants to protect them from third party fraudulent schemes. However, the case law in Ontario has already recognized that banks do not owe a duty to protect their clients from the potential fraud of a third party because the relationship between the parties is governed by contract. In Baldwin v. Daubney, 2005 46087 (ON SC), [2005] O.J. No. 5330 (Sup. Ct.) at para. 84, aff’d 2006 32901 (ON CA), [2006] O.J. 3824 (C.A.), leave to appeal to SCC denied [2006] S.C.C.A. 475:

The fact that a loan transaction is made by way of an agreement between the parties strongly affects the two critical elements of duty of care that are identified in Anns: the nature of the relationship between the parties and the degree of proximity between them. Where the relationship between the parties is only contractual, the contract necessarily determines the reasonable expectations of the parties with regard to each other. Where the contract itself does not give the lender a duty to advise, there is no reason to consider that such a duty is part of the relationship unless there is a special relationship or circumstance which would reasonably give rise to such a duty. Similarly, where the relationship is only contractual, there is no reason to view the parties as having a proximity to the prospective harm that is different from the reasonable expectations created by the terms of their contract.

[77] Similar principles should apply here. This too is a relationship governed by contract. It is a relationship founded on an agreement between a landlord whose obligation under the lease is to provide an apartment in a good state of repair and a tenant whose obligation is to pay the rent and meet other obligations related to the use and maintenance of the apartment. There is no basis for a potential tenant entering into a lease to expect the landlord to protect him or her from the potential fraud of other people who will be occupants of the dwelling. The reality is that it would be exceptionally intrusive for landlords to have an obligation to inquire into the legitimacy and wisdom of the decision of two people to live together. This type of intervention bears no relation to the nature of the contractual relationship between the parties, and cannot give rise to an expectation that landlords would have such a duty.

[78] In any event, this is a case in which the harm alleged is simply too remote to be foreseeable. Ms. Larizza’s complaint against Minto is not that its conduct improperly induced her to enter into the lease, thereby placing her in the position of incurring liability for the unpaid rent. Rather, she claims that if Minto had alerted her to the issues surrounding Mr. Rosenberg’s credit check and the fact that she was named as the tenant rather than him, she would have realized that Mr. Rosenberg was a fraudster and she would have avoided her financial losses and emotional distress. The harm in this case is far too removed from the nature of the relationship between landlord and tenant, and cannot form the basis of a legal obligation owed by Minto to Ms. Larizza.

[79] Given that I have found that no prima facie duty of care was owed in this case, it is not necessary to assess whether there would be policy reasons for negating a duty of care.

[80] Even if I had found that Minto owed Ms. Larizza a duty of care, I would have found that Minto did not breach the duty of care. Ms. Larizza argues that one of Minto’s duties was to advise her about Mr. Rosenberg’s credit check, and in particular the notations on the credit check to the effect that there had been inquiries in 2009 from “Correction Service”. However, it is evident that Minto would be precluded from sharing this information with Ms. Larizza by both the CRA and PIPEDA. Sharing the information from the credit check with Ms. Larizza does not fall within one of the purposes listed in section 8(1) in the CRA for which the credit information can be obtained. Nor can it be provided to Ms. Larizza without Mr. Rosenberg’s consent as required by PIPEDA. In any event, it is hard to see how two 2009 notations referring to “Correction Service” should have alerted Minto to Mr. Rosenberg’s fraudulent activity and triggered an obligation to warn Ms. Larizza that he was a potential fraudster.

[81] Ms. Larizza also claims that Minto was negligent in failing to ensure that she was aware that she was being added as a tenant to the lease. However, during cross-examinations on the motion, she acknowledged that Minto never represented to her that she was to be an occupant rather than a tenant and she agreed that Minto did not pressure her to sign the lease. The pressure came from Mr. Rosenberg. The reality is that Ms. Larizza signed the lease as a tenant, and there is no evidence that Minto sought to misrepresent or trick her into thinking she would be an occupant.

[82] Finally, even if I had found that Minto owed Ms. Larizza a duty of care and such a duty had been breached, I would have found that Minto was not the cause of her damages. As reviewed above, Ms. Larizza’s damages are far too remote from Minto’s alleged negligence.

Intentional and negligent infliction of emotional distress

[83] In order to succeed on a claim for intentional infliction of mental distress, the plaintiff must demonstrate “(1) conduct that is extreme, flagrant and outrageous, (2) calculated to produce harm (3) resulting in a visible and provable injury”: Raposo v. Dasilva, 2013 ONSC 3298 at para. 8. For many of the reasons reviewed about, there is simply no conduct by Minto in this case that could be characterized as “extreme, flagrant and outrageous”, and there is certainly no evidence that Minto’s conduct was calculated to harm Ms. Larizza.

[84] In order to succeed on a claim for negligent infliction of mental distress, Ms. Larizza would have to show that Minto owed her a duty of care. As discussed above, I have concluded that Minto did not owe Ms. Larizza a duty to protect her from Ms. Rosenberg, and even if such a duty existed, there has been no breach by Minto.

Negligent misrepresentation

[85] The plaintiff’s claim does not plead negligent misrepresentation, but she argues in her factum that a claim for negligent misrepresentation could be added to the pleading for the purpose of asserting a claim that Minto misrepresented that she would be an occupant rather that a tenant during the course of contract negotiations.

[86] The test for negligent misrepresentation requires the plaintiff to demonstrate the following:

a. A duty of care based upon a special relationship between the plaintiff and defendant;

b. An untrue, inaccurate or misleading statement by the defendant;

c. Negligence on the part of the defendant in making the statement;

d. Reasonable reliance by the plaintiff on the statement; and

e. Damages suffered by the plaintiff as a result of the statement.

See: Soboczynski v. Beauchamp, 2015 ONCA 286 at para. 70.

[87] I have already discussed above the reasons for finding that Minto did not owe Ms. Larizza a duty of care.

[88] With respect to the posited claim for negligent misrepresentation, I would add that there is in fact no evidence that Minto made a representation to Ms. Larizza that she would be an occupant rather than a tenant. Rather, her evidence is that it was Mr. Rosenberg who made this representation to her during their discussions leading up to the signing of the lease. When it came time to sign the lease where Minto’s representative was present, the lease provided to Ms. Larizza showed her as tenant and Mr. Rosenberg as occupant. While Ms. Larizza claims that she felt rushed during the signing, as reviewed above, she does not say that Minto told her that she was an occupant or somehow attempted to conceal the fact that she would be an occupant. Accordingly, even if Ms. Larizza were to assert a claim for negligent misrepresentation against Minto, in my view it would not raise a triable issue because she has failed to put forward evidence establishing that Minto made an untrue, inaccurate or misleading statement upon which such a finding could be made.

Appropriate case for granting summary judgment

[89] In my view, this is a case in which it is fair and just to grant Minto’s motion for summary judgment. There is very little evidence in conflict between the parties, and the evidence in conflict is not material to my decision.

[90] In addition, this is not a case in which granting partial summary judgment creates a risk of inconsistent or duplicative findings. Mr. Larizza’s claim against Minto is essentially a standalone claim. It is in no way intertwined with the claims against the other defendants Ms. Larizza claims had an obligation to protect her against Mr. Rosenberg. Her claim against Minto focuses on her dealings with Minto alone, and will not be affected by the claims against the financial institutions or lawyers also named in this action. This is precisely the type of situation contemplated by the Supreme Court in Hryniak v. Mauldin, at para. 60, where the resolution of an important claim will significantly reduce the length and complexity of the trial, thereby making partial summary judgment in favour of Minto proportionate and reasonable.

Motion for summary judgment by Faskens

[91] Ms. Larizza’s claim against Faskens is essentially that Ms. Hoffstein should have conducted searches with respect to Mr. Rosenberg that would have revealed that Mr. Rosenberg was not who he claimed to be, or alternatively that Ms. Hoffstein failed to refer Ms. Larizza to a family law lawyer, and that such a lawyer would have taken necessary steps to protect Ms. Larizza’s interests by conducting background searches on Mr. Rosenberg. There is also a suggestion that Ms. Hoffstein acted improperly because, rather than protecting Ms. Larizza’s interests, she was acting at Mr. Rosenberg’s behest to ensure that Ms. Larizza was not a “gold digger”.

[92] Faskens responds to these allegations by arguing that Ms. Hoffstein did not have an obligation to conduct any searches to ascertain Mr. Rosenberg’s identity, and that matters never reached a point where it was necessary for Ms. Larizza to be referred to a family law lawyer. Faskens also denies that Ms. Hoffstein’s role was to investigate Ms. Larizza’s motivations on Mr. Rosenberg’s behalf.

[93] The causes of action asserted by Ms. Larizza against Faskens are

a. Negligence;

b. negligent misrepresentation;

c. breach of contract;

d. and breach of fiduciary duty.

[94] For the reasons set out below, in my view, a trial is not necessary to decide the issues raised in the claim against Faskens, and granting summary judgment is proportionate and appropriate in the context of the litigation as a whole.

Negligence

[95] Faskens concedes that it owed Ms. Larizza a duty of care. However, it disputes that Ms. Hoffstein fell below the standard of care or that she caused Ms. Larizza’s damages.

[96] It is important to note that Ms. Larizza’s claim against Faskens in negligence is not based on an allegations that Ms. Hoffstein was negligent in the manner in which she performed the services she did provide to Ms. Larizza; there is no allegation of negligence in the drafting of the will, powers of attorney or trust documents or negligence in the advice Ms. Hoffstein provided to Ms. Larizza in relation to these tasks. In fact, as reviewed above, there would be no basis for such a finding given that Ms. Larizza failed to provide the information and instructions required by Ms. Hoffstein to complete this work. Rather, the claim is based on allegations that, as part of the retainer, Faskens had a general duty to protect Ms. Larizza from Mr. Rosenberg by investigating his background and revealing his fraudulent past to Ms. Larizza or by referring her to a family law lawyer who would do so.

[97] In order to succeed on her negligence claim against Faskens, Ms. Larizza would have to demonstrate that the scope of Faskens’ retainer included an obligation to investigate Mr. Rosenber’s background. In my view, there are a number of flaws in this argument.

[98] Ms. Larizza relies on the fact that there is no written retainer in this case to argue that her version of the scope of Faskens’ retainer should be preferred. In PCF Acquisition Corp. v. Gowling Lafleur Henderson LLP, 2008 19791 (Ont. Sup. Ct.) at paras. 272-273, this Court held that:

There is no question that the foundation of the relationship between a solicitor and client lies in the retainer agreement between them. The terms of the retainer will determine whether there has been a breach of those terms or not.

It is true that Gowlings did not have written retainer agreements with Mr. Black, Mr. Brown or PCF. That does not mean, however, that it is impossible to determine the terms of the retainer. The court must look at the objective evidence to determine the nature and scope of the retainer.

[99] In this case, there is in fact little dispute between the parties about the scope of Faskens’ retainer. Both parties agree that the retainer included estate matters and the trust agreement. The discrepancy in their positions is over the pre-nuptial agreement. Ms. Larizza claims that she believed that Ms. Hoffstein was a family law lawyer and that she would be dealing with the pre-nuptial agreement, while Ms. Hoffstein claims that she told Ms. Larizza that she was not a family law lawyer and that she would refer Ms. Larizza to a family law lawyer once the Swiss lawyer sent the draft pre-nuptial agreement for review. In my view, for the pruposes of deciding the issues on this motion, there is no material discrepancy between the parties’ evidence on whether Ms. Hoffstein was retained to deal with the pre-nuptial agreement. Ms. Hoffstein acknowledges that this is something she would deal with by referring Ms. Larizza to a family law lawyer, while Ms. Larizza does not suggest that Ms. Hoffstein failed to prepare a pre-nuptial agreement. The only significance in the discrepancy between their evidence is that it is Ms. Larizza’s position that a family law lawyer as part of her or her services would have undertaken a background check on Mr. Rosenberg. Therefore, if Ms. Hoffstein was a family law lawyer, she would have done so. Alternatively, if Ms. Hoffstein had referred Ms. Larizza to a family law lawyer immediately upon being retained, that family law lawyer would have conducted the background check.

[100] Ms. Larizza does not claim that there was ever any explicit request on her part that Ms. Hoffstein conduct a background check on Mr. Rosenberg. Rather, the real dispute between the parties is whether the scope of work that Faskens was retained to perform implicitly included a requirement that Ms. Hoffstein conduct a background check. Essentially this comes down to whether the standard of care Faskens was expected to meet required performance of a background check.

[101] A lawyer is required to bring reasonable care, skill and knowledge to the performance of professional skills she undertakes. The standard by which her conduct is measured is a question of law and whether she has met her obligations is a question of fact: McNeil v. Kansa General International Insurance Co., 2000 22279 (ON CA), [2000] O.J. No. 3309 (C.A.) at para. 11. Generally, the standard of care to which a professional will be held requires expert evidence: Krawchuck v. Scherbak, 2011 ONCA 352 at para. 130. In this case, neither party has filed expert evidence. Faskens argues that it does not require expert evidence because the burden of proving that Faskens fell below the standard of care lies with the plaintiff, and in any event common sense is sufficient to establish that the standard of care in this case does not require Ms. Hoffstein to conduct a background check on Mr. Rosenberg. For her part, Ms. Larizza argues that she should not be required to provide an expert report at this stage in the proceedings because an expert will be required to address the conduct of both Wildeboer and Faskens, and she should therefore not have to go through the expense of retaining an expert on similar issues twice.

[102] As reviewed above, in opposing the motion, the case law is clear and the responding party must put her best foot forward and cannot rest on an argument that better evidence will be available at trial. Accordingly, while one might have sympathy for Ms. Larizza’s desire to avoid commissioning two expert reports, this is not a sufficient reason to relieve her from the obligation to put her best foot forward on this motion. Therefore, in the absence of expert evidence from the plaintiff, there is no basis for finding that the question of whether Ms. Hoffstein had an obligation to conduct a background check on Mr. Rosenberg raises a triable issue.

[103] In any event, even if on a motion for summary judgment involving professional negligence the defendant’s burden of showing that there is no triable issue required the defendant to adduce expert evidence, I accept Faskens’ argument that no expert evidence is required in this case. In Krawchuk v. Scherbak, supra, at para. 133, the Court of Appeal held that there are two exceptions to the requirement for expert evidence to prove the negligence of a professional. One of those exceptions is when the court is faced with “non-technical matters or those of which an ordinary person may be expected to have knowledge”.

[104] It defies common sense to expect that a lawyer, whether a family law lawyer or an estates planning lawyer, would be required to conduct an investigation into the background or identity of a client’s future spouse as a matter of course. The reasonable assumption of any lawyer is that, in the absence of any explicit instructions to the contrary, he or she is not to play any role in “vetting” the suitability of a future spouse. Notably, Ms. Hoffstein could not have undertaken any credit, criminal or other background check of Mr. Rosenberg without his consent as, in any event, doing so would be contrary to the CRA or PIPEDA.

[105] Finally, even if there was any basis for finding that Faskens had an obligation to conduct a background check on Mr. Rosenberg, it is evident that Faskens’ failure to do so was not the cause of Ms. Larizza’s damages. By the time Faskens became involved in September 2012, Ms. Larizza had already quit her job, sold her house, moved in with Mr. Rosenberg and provided him with over $150,000. Despite specific advice to Ms. Larizza that she should make sure to make a new will before marrying Mr. Rosenberg, Ms. Larizza married Mr. Rosenberg on March 30, 2013 without signing the will prepared by Ms. Hoffstein.

[106] Accordingly, the negligence claim against Faskens does not raise a triable issue.

Negligent misrepresentation

[107] In her claim, Ms. Larizza alleges negligent misrepresentation against Faskens claiming that the firm “through its representation, portrayed Rosenberg to the [plaintiff] as reputable”. In the factum filed on her behalf in response to Faskens’ motion, Ms. Larizza argues that “Hoffstein represented to Larizza by act or omission that she was acting on behalf of Larizza on marital issues, estates, trusts and wills. Larizza believed Hoffstein to be her family lawyer”.

[108] As set out above in the section dealing with the Claim against Minto, the test for negligent misrepresentation requires the plaintiff to demonstrate the following:

a. A duty of care based upon a special relationship between the plaintiff and defendant;

b. An untrue, inaccurate or misleading statement by the defendant;

c. Negligence on the part of the defendant in making the statement;

d. Reasonable reliance by the plaintiff on the statement; and

e. Damages suffered by the plaintiff as a result of the statement.

See: Soboczynski v. Beauchamp, 2015 ONCA 286 at para. 70.

[109] In this case, Faskens agrees that it owed Ms. Larizza a duty of care. However, it denies that it made any untrue, inaccurate or misleading statements to Ms. Larizza, and as with the claim in negligence Faskens argues that Ms. Larizza has suffered no damages.

[110] On the motion, Ms. Larizza has not put forward any evidence of untrue, inaccurate or misleading statements by Ms. Hoffstein or anyone else at Faskens. There is no evidence that Ms. Hoffstein said anything about Mr. Rosenberg’s reputation. On the contrary, any information about Mr. Rosenberg’s wealth and circumstances came from Ms. Larizza.

[111] In addition, Ms. Larizza has not provided evidence that Ms. Hoffstein represented that she would act for her on the family law aspect of the matter. Rather, Ms. Larizza simply stated that it was her understanding that Ms. Hoffstein would do so. Even if this understanding was based on an actual statement made by Ms. Hoffstein, as reviewed above it was not the source of any damages suffered by Ms. Larizza. In particular, the only family law issues involved was the pre-nuptial agreement, and Ms. Larizza never provided a draft of the agreement to Ms. Hoffstein for review. In addition, she married Mr. Rosenberg without advising Ms. Hoffstein before any of the work Ms. Hoffstein was retained to do could be completed.

Breach of contract

[112] The claim for breach of contract does not assert that it was an explicit term of the contract between Ms. Larizza and Faskens that Faskens would conduct a background check on Mr. Rosenberg nor has Ms. Larizza provided any evidence to that effect. As reviewed above in the section dealing with negligence, there was no such implied term and accordingly no breach of contract.

Breach of fiduciary duty

[113] As held in PCF Acquisition Corp. v. Gowling Lafleur Henderson LLP, supra, at paras. 198 and 277-278, the fiduciary duty imposed on a lawyer includes the obligation to provide full disclosure to clients, to act with undivided loyalty, and to maintain the client’s affairs in confidence. However, not everything a lawyer does gives rise to fiduciary obligations. The courts distinguish between the improper provision of legal advice and services, which may give rise to a claim in negligence, and circumstances where a lawyer has breached a fiduciary duty such as where a conflict of interest arises.

[114] In this case, the only aspect of the claim that potentially engages issues of fiduciary duty is the allegation that Ms. Hoffstein was retained to determine whether Ms. Larizza was a “gold digger”. Ms. Hoffstein denies that this was the case. I have my doubts about whether Ms. Larizza’s statement on this point in her affidavit are proper evidence. She states as follows:

It was my understanding that [Ms. Hoffstein] was representing me regarding my upcoming marriage and related family law issues.

I was advised this was necessary to ensure that I was not after Rosenberg’s money. Specifically, in my first meeting with Elena Hoffstein, she commented that I seemed like a reasonable person and not a “gold digger”. I felt like I was being vetted as part of Rosenberg’s estate planning.

[115] Notably, Ms. Larizza does not indicate who advised her that the referral was to ensure that she was “not after Rosenberg’s money”, and she speculates that she “felt like she was being vetted”. Other than these speculative statements, there is in fact no evidence that the purpose of the referral was meant to be for Mr. Rosenberg’s benefit.

[116] In addition, no damages would flow from Ms. Larizza’s claim that Ms. Hoffstein was “vetting” her. As reviewed above in the section dealing with negligence, even if Ms. Hoffstein’s loyalties were divided, Ms. Hoffstein nevertheless did not have an obligation to do a background check on Mr. Rosenberg.

Appropriate case for granting summary judgment

[117] Viewed in isolation, this is precisely the type of case than can properly be decided on a motion for summary judgment. The period of time during which Faskens acted for Ms. Larizza was relatively brief. With the exception of the initial meeting, the communications between the parties are mostly in writing. The only facts in dispute are Ms. Larizza’s expectation that Ms. Hoffstein would act for her on family law matters and the issue of whether Ms. Hoffstein was expected by Mr. Rosenstein to assess whether Ms. Larizza was a “gold digger”. As discussed above, neither of these discrepancies plays a material role in the outcome of the motion.

[118] Ms. Larizza vigorously argues that her claim against Faskens should not be disposed of on this motion for summary judgment because the claim is intertwined with her claim against Wildeboer, and therefore this is not an appropriate case for partial summary judgment as there is a risk of inconsistent findings. While I am mindful of the Court of Appeal’s caution against partial summary judgment in claims involving multiple defendants, in my view this is not a case in which there is a real risk of inconsistent findings.

[119] The thrust of Ms. Larizza’s argument is that a trial judge should be given the opportunity to decide as between the relative obligations of Wildeboer and Faskens, to assess the firms’ relative obligations to protect Ms. Larizza against Mr. Rosenberg’s fraud. However, my determination that a trial is not necessary to decide the claim against Faskens is in no way dependent on a finding that Wildeboer bore any or more responsibility for advising Ms. Larizza of Mr. Rosenberg’s fraudulent past or true identity. Rather, based on the evidence before me, I have proceeded on the basis that Faskens acted for Ms. Larizza, and I have determined what obligations Faskens owed to Ms. Larizza as part of its retainer. The issue of whether Wildeboer owed any duties to Ms. Larizza and the scope of those duties is in no way dependent or relevant to the inquiry about the scope of Faskens’ duties.

[120] As with the claim against Minto, deciding the claim against Faskens will narrow and focus the issues for trial. An academic or hypothetically posited risk of inconsistent findings should not interfere with the benefits of summary judgment.

Conclusion

[121] For the reasons set out above, I grant summary judgment to Minto and Faskens. The claims against these parties are therefore dismissed. (This includes the claim against Faskens Martineau Dumoulin International LLP, which as indicated above is not a legal entity.)

[122] If the parties are unable to agree on costs, submissions by Faskens and Minto are to be sent to my attention within 10 days of the issuance of these reasons, and Ms. Larizza’s submissions are to be sent to my attention 10 days later. Submissions are to be no longer than three pages, excluding the parties costs outlines.

FAVREAU J.

RELEASED: October 13, 2017

CITATION: Larizza v. The Royal Bank of Canada, 2017 ONSC 6140

COURT FILE NO.: CV-15-532647

DATE: 20171013

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

ANTOINETTE LARIZZA

Plaintiff

– and –

THE ROYAL BANK OF CANADA, ROYAL TRUST CORPORATION OF CANADA AS THE ESTATE TRUSTEE FOR THE ESTATE OF MARCELLE KAYE TRUST, THE BANK OF NOVA SCOTIA, WILDEBOER & DELLCELLE LLP, FASKEN MARTINEAU DUMOULIN LLP, FASKEN MARTINEAU DUMOULIN INTERNATIONAL LLP, MINTO GROUP INC., BASTEDO STEWART & SMITH, BRYAN SMITH, ALBERT ALLAN ROSENBERG, MARWA HOLDINGS INC., MARWA BLOOR STREET INC., M.A. INVESTMENTS INC., AND ROSENBERG INVESTMENT GROUP INC.

Defendants

AMENDED REASONS FOR JUDGMENT

FAVREAU J.

RELEASED: October 13, 2017