Court File and Parties

CITATION: Crawford-Montaque v. Benjamin, 2017 ONSC 6729

COURT FILE NO.: CV-15-532307

DATE: 20171109

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JEAN CRAWFORD-MONTAQUE

Plaintiff

– and –

ANTHONY STEPHEN BENJAMIN and ANTHONY STEPHEN BENJAMIN LAW PROFESSIONAL CORPORATION

Defendants

Counsel:

Jean Crawford-Montaque, In Person

Louis P. Covens, for the Defendants

HEARD: September 11, 2017

Reasons for Judgment

LEDERER J.

[1] This is a motion for summary judgment. As it has turned out the substance of the motion is straight forward and a determination not difficult to make. It is the lead up to the motion that has been problematic.

[2] On January 14, 2010, Jean Crawford-Montaque was involved in a motor vehicle accident. She retained a lawyer. On January 12, 2012, he issued a Statement of Claim. The relationship between client and counsel broke down. The law firm obtained an order removing it from the record. The order required that Jean Crawford-Montaque either retain a new lawyer or file and serve a Notice of Intention to Act in Person. She did the latter. Evidently she served her prior counsel but not the defendants or the lawyers they had retained. Unaware of the Notice, the defendants moved to dismiss the action on the basis that Jean Crawford-Montaque had failed to comply with the order that had been made. The Master, also unaware of the Notice of Intention to Act in Person, granted the request and, on December 11, 2013, dismissed the action.

[3] On January 22, 2013, Jean Crawford-Montaque met, and as she understood it, retained the defendant, Anthony Stephen Benjamin, to act on her behalf. He is the moving party. In the Statement of Defence filed in this action he denies that he was retained. For the purposes of this motion he has conceded that he was. The immediate purpose in the retainer was to move to set aside the order dismissing the action commenced in respect of the motor vehicle accident. No motion was brought and no order obtained.

[4] Sometime during 2014, apparently during the month of October (the evidence is unclear), Jean Crawford-Montaque retained the Romano Law Firm. The purpose of this retainer, at least at its outset, was to set aside the order dismissing the action. For whatever reason, and despite the retainer of Anthony Stephen Benjamin for the same purpose, this had not happened. I say the retainer addressed the setting aside of the dismissal despite the Affidavit of Karen Sabarros, a legal assistant at the Romano Law Firm, in which she deposed that the retainer was to commence an action for negligence against Anthony Stephen Benjamin. A review of the file suggests this was not the full story. Documents in the file are dedicated to setting aside the dismissal and identifying the process best suited to this goal: should it be by motion to the Master or appeal? Counsel at the Romano firm sought dates for a motion. The lawyer acting for the defendant in that action suggested it should be by appeal. On December 11, 2013, an associate with the Romano firm wrote saying that: “After some research into the matter and meeting with my client, we have been instructed to proceed with an appeal.” No appeal was brought. On May 8, 2015, another associate from the Romano Law Firm wrote to the plaintiff (Jean Crawford-Montaque) confirming that they had met in person, that they had discussed the strategy of proceeding with an appeal or commencing a claim against Anthony Stephen Benjamin. The letter states that it was decided not to proceed with the appeal. This decision was delivered by email dated May 22, 2015, to counsel for the defendant and confirmed, on the same day, by the following response:

Hi Daniela,

I confirm that the matter of the appeal is now resolved. The appeal has been withdrawn with prejudice on a without costs basis. This brings this matter to a conclusion (for the second time).

Regards,

[Emphasis added]

[5] The fact that this was done on a “with prejudice” basis foreclosed any further effort to set aside the dismissal of the original action.

[6] The Statement of Claim in this action was issued on July 14, 2015. It will be evident that this was after the decision not to proceed with the appeal and approximately 10 months after the Romano Law Firm had been retained. This suggests that the initial goal was to set aside the dismissal. It was only later that it was decided to proceed with an action against Anthony Stephen Benjamin.

[7] The presence of the Romano Law firm as counsel did not last far into the processing of this action. The Statement of Defence was delivered on November 16, 2016, but before even that happened, on July 25, 2016, the Romano Law Firm obtained an order removing the law firm from the record. It appears from the Affidavit of Karen Sabarros, filed in support of that motion, that the firm expressed concern about proceeding in the face of a motion for summary judgment and the costs implications associated with continuing. Jean Crawford-Montaque was intent on going on. It appears that these different views were the foundation of an asserted breakdown in the solicitor/client relationship that was the basis for the order removing the firm. At that point, Jean Crawford-Montaque was on her own, without counsel. On August 15, 2016, Jean Crawford-Montaque delivered a Notice of Change of Solicitor and on August 26, 2016, a Notice of Intention to Act in Person. The import of these documents was that she intended to act on her own behalf.

[8] This takes the matter to this motion. Anthony Stephen Benjamin seeks summary judgment. It is submitted that there is no genuine issue, in the action brought against him, that would require a trial.

[9] I pause to comment. This case stands as a cautionary lesson: first that, however hard we may try, the administration of justice can fail those who rely on it. When, in the initial proceeding (the one commenced in respect of the car accident), Jean Crawford-Montaque delivered the Notice of Intention to Act in Person she failed to notify the defendants or their counsel. This is not a mistake a lawyer would have made. Not knowing the Notice had been delivered to her prior counsel, the defendant applied and the Master granted the order dismissing the action. I feel safe in saying that had a motion been brought before the Master or if an appeal had been commenced it is likely that order would have been set aside, the action continued and the problem that now confronts Jean Crawford-Montaque avoided. This is not what happened. For whatever reasons neither Anthony Stephen Benjamin nor the Romano Law Firm commenced the required motion or appeal.

[10] This takes me to the second lesson to be learned.

[11] When a party acts on her, his or its own behalf it is not relieved of the obligation to understand the situation and to act with reasonable expedition in recognition of the understanding that the other side also has rights and expectations. The court can give leeway but it cannot forsake its overall responsibility to fairness and balance in the administration of justice.

[12] This is the fourth time this motion has come to court. The first appearance was on May 30, 2017. It was clear that the situation would be improved if Jean Crawford-Montaque had advice and considered the options that might (or might not) have been available. The problem as I perceived it and the conclusion I came to are in the endorsement made on that day:

Today counsel for Anthony Stephen Benjamin says that it is not for me to determine fault only that there is no damage or loss to be laid at the feet of his client and thus no action to be maintained. The problem is self-evident. Should I grant the order requested, by the nature of the finding it would represent, I would be determining that fault lies elsewhere presumably with other lawyers, perhaps the Romano Law Firm. The plaintiff makes the observation that there is a chain of responsibility attributable to the succession of lawyers involved. Perhaps there is a division of responsibility between them.

In the circumstances I am not, at least for today, prepared to single out and remove Anthony Stephen Benjamin from this situation. Nor do I think it useful to simply allow an action to proceed against him which would leave the same question to be answered and the same problem to be dealt with following a trial.

I am adjourning this motion for four weeks. Within that timeframe I anticipate the plaintiff will consider whether there is any purpose in suing any other lawyer or law firm for the failure to act. Upon the return of this motion I would expect either a motion to consolidate the two actions (or at least an order to have them heard together) or a request that the order dismissing the claim as against Anthony Stephen Benjamin be made at that time.

[13] The motion was adjourned to June 22, 2017. On that occasion Jean Crawford-Montaque indicated that in the intervening period, she had spoken to many lawyers and none would help her. I remained unprepared to simply dismiss the claim. I telephoned the Law Society. I identified the responsible individual and spoke to him. He indicated that if Jean Crawford-Montaque telephoned him he would speak to her and help get a lawyer to talk with her. Jean Crawford-Montaque was given his name and telephone number. I advised her that this was all the court could do. The endorsement made on that day notes: “She will have to take it from here.” The motion was adjourned to July 13, 2017.

[14] On the day of that appearance (July 13, 2017) Jean Crawford-Montaque explained that she had been in touch with the Law Society, provided a letter from one firm confirming they had met with her but had declared a conflict. I have made one more effort to see if legal assistance can be found. Pro Bono Ontario which has as part of its mandate the object of assisting those who would otherwise be self-represented. I called them. I gave Jean Crawford-Montaque the telephone number and the name of the person to contact. She telephoned. The connection having been made the motion was adjourned again. This time to September 11, 2017. The endorsement made on that day observes:

It is my hope that legal assistance may be found. If not Ms. Crawford-Montaque will have to move forward on her own. Both sides have rights. This cannot go on indefinitely.

And

I have advised Ms. Crawford-Montaque that if the issue of representation is not resolved by the next appearance she is at risk that I will hear the motion and possibly dismiss the claim against Anthony Stephen Benjamin.

[15] These comments squarely raise what I referred to earlier as the second lesson. A party can act on her, or his own behalf but there are responsibilities that accompany this right.

[16] Jean Crawford-Montaque is still unrepresented by counsel. She continues to act on her own behalf. As I understand it she attended at Pro Bono Ontario within days of the last appearance (July 13, 2017). She was told at that time what was required for Pro Bono Ontario to attempt to identify counsel that might assist her. The material was not delivered by her until one week before this appearance (September 11, 2017). Not surprisingly, she was advised that this was not enough time to arrange for counsel to assist her. On this basis she requested a further adjournment. Her explanation for the delay was that she was constrained. The specific constraint she referred to was the cost of having the material printed. It was too expensive for her to have a printing shop do it. She had to do it herself. Regardless of the cost or the time it would take, taking six or seven weeks to reproduce the documents required is too long. Put in the context of the time already taken, it suggested that Jean Crawford-Montaque was unprepared to recognize her obligation to move with some reasonable expedition to allow the motion for dismissal to move forward. This was the third opportunity to get counsel and to delay for six weeks as Jean Crawford-Montaque did was too long. Nonetheless, I did not immediately refuse the further adjournment. I reserved on that issue and asked for submissions on the merits of the motion for summary judgment.

[17] Counsel for Anthony Stephen Benjamin submitted that there was no genuine issue requiring a trial. He relied on what is referred to in negligence law as the “but for” test. In the context of this case the test would be stated as “but for” the negligence of Anthony Stephen Benjamin, Jean Crawford-Montaque would not have been injured. The test links the alleged negligence to the asserted damage. It is a test of causation:

The "but for" analysis is the generally accepted, although not exclusive approach to factual causation in tort law…[^1] On this analysis, the court looks for a causal connection between the wrongdoing of the defendant and the harm actually suffered by the plaintiff for which compensation is claimed. The link is established if the plaintiff demonstrates on the balance of probabilities that the harm would not have occurred but for the fault of the defendant, even if there are other factual causes that also meet the "but for" standard: Athey v. Leonati, supra. Absent the causal link, the defendant is not liable even though he may have been negligent.[^2]

[18] It was submitted that in this case any negligence of Anthony Stephen Benjamin was not the cause of any damage suffered by Jean Crawford Montague. Why? Because the Romano Law Firm received the file in time to bring the necessary motion or appeal, commenced discussions with the defendant in the action arising from the motor vehicle accident, did some research and then, presumably with instruction determined not to proceed. Had it proceeded there was every expectation that the order dismissing the action would have been set aside and the action allowed to continue. This being so, Anthony Stephen Benjamin cannot be responsible for any damages it is suggested occurred.

[19] There is case law that supports the application of the test in actions that arise from the negligence of solicitors. In Folland v. Reardon^3 the plaintiff had been charged with and was convicted of sexual assault. He appealed. A new trial was ordered. The Crown decided not to proceed. There was no further trial. The plaintiff sued the lawyer who had acted for him saying that the lawyer had been negligent in the conduct of the defence at trial. A motion for summary judgment was brought. It succeeded. It was appealed. The appeal was granted. The judge on the motion was wrong to hold there was no triable issue as to whether the defendant lawyer had been negligent.

[20] The Court of Appeal considered the application of the “but for” analysis. In that case the harm suffered was the conviction. Did the defendant’s alleged negligence cause the conviction? The question to be answered was whether, on a balance of probabilities, the plaintiff would have been acquitted if he had received proper representation. The question in the case I am deciding is somewhat different. It stands to reason that whoever had brought a motion to set aside or had appealed the order dismissing the action, the chance of success would have been the same. It is not a question of evaluating anything on a balance of probabilities. We know that another law firm was engaged. We know that firm could have and in fact examined how best to move to set aside the order. This being so we know the causal link to the defendant has been broken. Either the Romano Law Firm could have proceeded and did not, or having provided competent advice, was instructed not to. Thus, either the Romano Law Firm or Jean Crawford-Montaque would be the ultimate cause of the harm or damage.

[21] This approach was accepted in Nicolardi v. Daley.[^4] In that case the plaintiff, like Jean Crawford-Montaque, had been in a motor vehicle accident. On May 3, 1993, he retained the defendant lawyer to act on his behalf. The lawyer continued to act until, on January 25, 1996, on his own motion, he was removed from the record. The plaintiff retained other counsel who he subsequently discharged. The plaintiff proceeded to trial, acting for himself. He was awarded general damages, lost past income, out-of-pocket expenses and costs. He sued the defendant lawyer for negligence. He alleged that the lawyer had failed to properly develop a future loss of income claim. On this basis the case was not ready for trial for the period between October 31, 1994, being the first date that had been set for trial and the day the lawyer ceased to act (January 25, 1996). The trial judge dismissed the claim of negligence. The action was appealed to the Divisional Court which dismissed the appeal. Negligence was not established, but more than that, there was no causal connection linking the allegation of negligence to any damage:

Ample grounds existed to dismiss the appellant’s negligence claim at trial. The alleged negligence was not established, and in any event, no causal connection linked Mr. Fanjoy’s alleged negligence to any loss sustained by the appellant.

The appellant retained and discharged competent counsel following Mr. Fanjoy’s removal. This, coupled with the appellant’s decision to proceed to trial as a self-represented plaintiff (an act performed contrary even to the advice of Mr. Fanjoy), prevented Mr. Nicolardi from establishing any chain of causation.[^5]

[22] As the causal connection in that case was broken through the subsequent retaining of new counsel, so it is here.

[23] Finally I note that on the initial attendance, the plaintiff raised the prospect of shared blame between the two law firms. The case law responds to this idea. In Clements v. Clements[^6] the Supreme Court of Canada considered the applicability of a “material contribution” test. The decision arose from a traffic accident. The plaintiff was the passenger on a motor cycle being driven by her husband, the defendant. The bike was overloaded. As it proceeded through a zone where the speed limit was 100 km/h, the driver increased the speed to “at least 120 km/h in order to pass a car. A nail that was lodged in the rear tire came lose and fell out. As a result the tire deflated, the defendant lost control and the motorcycle crashed. The plaintiff suffered a severe traumatic brain injury. The trial judge found that the defendant was negligent and that this “contributed” to the injury of his wife but, as a result of the limitation of scientific reconstruction evidence, she was unable to prove “but for” causation. The judge held that in view of the impossibility of precise proof of the amount each factor contributed to the injury, “but for” causation should be dispensed with and a “material contribution” test applied. He found the husband liable on this basis.[^7] The British Columbia Court of Appeal set aside the judgment on the basis that “but for” causation had not been proved and the material contribution test did not apply.[^8] The Supreme Court of Canada observed that the “but for” test and “material contribution” are “two different beasts”[^9]. The former is a test of causation, the latter is a substitute. It removes the requirement to prove causation and puts in its place proof of “material contribution to risk”[^10]:

. . . “material contribution” does not signify a test of causation at all; rather it is a policy-driven rule of law designed to permit plaintiffs to recover in such cases despite their failure to prove causation. In such cases, plaintiffs are permitted to “jump the evidentiary gap”…[^11] That is because to deny liability “would offend basic notions of fairness and justice.”[^12]

[24] The Supreme Court of Canada observed that doing away with the need to prove causation would be a fundamental shift in the law of negligence. Any reliance on material contribution as the foundation for imposing liability would be unusual:

Elimination of proof of causation as an element of negligence is a “radical step that goes against the fundamental principle ‘. . . A defendant in an action in negligence is not a wrongdoer at large: he is a wrongdoer only in respect of the damage which he actually causes to the plaintiff’”[^13]… For that reason, recourse to a material contribution to risk approach is necessarily rare, and justified only where it is required by fairness and conforms to the principles that ground recovery in tort.[^14]

[25] The application of “material contribution” was considered in Turczinski v. Mang.[^15] The plaintiff commenced a law suit against her neighbour for encroaching on her property. She sought declaratory relief and punitive damages of $50,000. At a point after she had paid fees of in excess of $100,000 the plaintiff’s representation was taken over by Ian Mang. The plaintiff and Ian Mang did not agree as to how to proceed. He worked towards a settlement. She was intent on proceeding. Ian Mang advised that the plaintiff consider retaining other counsel. She did. A motion was brought seeking to dismiss the action for delay. It was granted. The plaintiff commenced an action against her former counsel (Ian Mang) for negligence. He moved for summary judgment. The plaintiff opposed the motion arguing that the negligence of the lawyer (Ian Mang) “…meets the circumstances and material contribution test set out in [Clemenst v. Clements]”[^16]. The motion judge found as follows:

The plaintiff also relied on Clements (Litigation Guardian of) v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, which reviewed the basis for applying a material contribution to risk approach. As noted in paragraph 46 of the decision, the general rule is the plaintiff cannot succeed unless she shows, as a matter of fact, she would not have suffered the loss “but for” the negligent act or acts of the defendant. Scientific proof of causation is not required and the judge is to take a “robust and pragmatic approach to determining” if a plaintiff has established the defendant’s negligence caused her loss.[^17]

It is only in the exceptional case where it is impossible or plaintiff is unable to show any one of the possible tortfeasors was negligent that the material contribution test should apply. In this situation, in the Court’s view (and without the benefit of materials detailing same), this argument would have required “two or more tortfeasors” named as parties and argument as to why liability should be imposed on Mr. Mang and his firm as opposed to the subsequent counsel.[^18]

[26] In the circumstances as presented in the case I am asked to decide. It is clear that the “but for” test can be applied. There is no reason to step away from the requirement that causation be demonstrated. The need for and conditions allowing for the application of material contribution of risk are not present.

[27] The circumstances in this case are as found in Nicolardi v. Daley. The causal connection was broken by the retainer of new counsel.

[28] The plaintiff has had ample time and opportunity to retain new counsel. Given my analysis there is little to be gained by allowing this to continue further. The defendant also has rights.

[29] The adjournment is refused. This action is dismissed.

[30] To my mind this is not a situation that calls for costs. None are awarded.

Lederer J.

Released: November 9, 2017

[^1]: Laferrière v. Lawson, 1991 87 (SCC), [1991] 1 S.C.R. 541, [1991] S.C.J. No. 18; Athey v. Leonati, 1996 183 (SCC), [1996] 3 S.C.R. 458, [1996] S.C.J. No. 102; Arndt v. Smith, 1997 360 (SCC), [1997] 2 S.C.R. 539, [1997] S.C.J. No. 65; St-Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, [2002] S.C.J. No. 17, at p. 529 S.C.R.; [page707] Cottrelle v. Gerrard (2003), 2003 50091 (ON CA), 67 O.R. (3d) 737, [2003] O.J. No. 4194 (C.A.), at pp. 742-43 O.R., leave to appeal to S.C.C. refused, [2003] S.C.C.A. No. 549, 70 O.R. (3d) xvii: K. Cooper-Stevenson, Personal Injury Damages in Canada, 2nd ed. (Scarborough: Carswell, 1996), at pp. 751-52.

[^2]: Folland v. Reardon 2005 1403 (ON CA), 74 OR (3d) 688; 249 DLR (4th) 167; 28 CCLT (3d) 1; [2005] OJ No 216 (QL); 136 ACWS (3d) 638; 194 OAC 201 at para. 60

[^4]: [2009] O.J. No. 396

[^5]: Ibid at paras. 11 and 12

[^6]: 2012 SCC 32, [2012] 2 SCR 181, 346 DLR (4th) 577; 331 BCAC 1; 431 NR 198; 93 CCLT (3d) 1; 215 ACWS (3d) 1035 and 29 MVR (6th) 1

[^7]: Ibid at para. 3

[^8]: 2010 BCCA 581, 12 B.C.L.R. (5th) 310

[^9]: Clements v. Clements, supra (fn. 6) at para. 14

[^10]: Ibid at para. 14

[^11]: Ibid at para. 14 quoting from MacDonald v. Goertz, 2009 BCCA 358, 275 B.C.A.C. 68, at para. 17 which in turn references Stapleton, Lords a’leaping evidentiary gaps (2002), Torts Law Journal 276, and Stapleton,Cause-in-Fact and the Scope of Liability for Consequences (2003), 119 L.Q.R. 388

[^12]: Ibid at para. 14 quoting from MacDonald v. Goertz, 2009 BCCA 358, 275 B.C.A.C. 68, at para. 17 which in turn references Hanke v. Resurfice Corp., 2007 SCC 7, [2007] 1 S.C.R. 333 para. 25.

[^13]: Browning v. War Office [1962] 3 All E.R. 1089 (C.A.), at 1094-95 quoted in Mooney v. British Columbia (Attorney General), 2004 BCCA 402, 202 B.C.A.C. 74, at para. 157

[^14]: Clements v. Clements, supra (fn. 6) at para. 16

[^15]: [2015] O.J. 2866; 2015 ONSC 2941

[^16]: Ibid at para. 1

[^17]: Para. 46 of Clements v. Clements, supra (fn. 6) states, in full: The foregoing discussion leads me to the following conclusions as to the present state of the law in Canada: (1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required. (2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

[^18]: Ibid at paras. 7 and 8