CITATION: Powers v. Tufman, 2017 ONSC 7210

COURT FILE NO.: CV-16-556446

DATE: 20171201

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

GEORGE POWERS aka GEORGE VANDENBERGH, BARBARA VANDENBERGH and 1317621 ONTARIO INC.

Plaintiffs

• and -

MAREK Z. TUFMAN AKA MAREK TUFMAN AND TUFMAN and ASSOCIATES

Defendants

Jujhar Mangat

for the Plaintiffs

Marc Kestenberg

for the Defendants

HEARD: October 18, 2017

AMENDED REASONS FOR JUDGMENT

FAVREAU J.:

Introduction

1The plaintiffs’ claim alleges that the defendant lawyer and law firm were negligent in failing to advance an action on their behalf and that they improperly kept funds received in trust. The defendants move for summary judgment to dismiss the plaintiffs’ claim.

2At the conclusion of oral arguments, I advised counsel for the parties that I was granting the defendants’ motion for summary judgment with written reasons and a decision on costs to follow. These are those reasons.

Procedural history and adjournment denial

3At the beginning of the motion, counsel for the plaintiffs requested an adjournment on the basis that one of the plaintiffs, Barbara Vandenbergh (“Ms. Vandenbergh”), is ill and that her husband, George Powers aka George Vandenbergh (“Mr. Vandenbergh”) who is another plaintiff in the action, is her primary care giver (together referred to as “the Vandenberghs”). The plaintiffs’ counsel indicated that his clients wanted to introduce additional evidence in response to the motion for summary judgment, but that he has not been able to meet with his clients due to Ms. Vandenbergh’s illness. In support of the request for an adjournment, counsel for the plaintiffs provided a letter dated October 16, 2017, from a physician based in Ottawa who states that “due to medical reasons, Ms. Vandenberg is unable to attend her court appearance scheduled 18 October 2017. She is still awaiting assessment with an Orthopedic Surgeon regarding her disability which will delay her ability to attend any court appearances for an indefinite period.”

4After hearing arguments from both sides, and reviewing the procedural history leading up to the motion, I denied the request for an adjournment. My decision to deny the adjournment was based on the following considerations.

5The parties attended Civil Practice Court on April 7, 2017, at which time the date of October 18, 2017, was set for the hearing of the motion for summary judgment. At that time, Firestone J. approved the timetable agreed to by the parties for the exchange of materials. By that point, the defendants had already served their motion record, and the timetable required the plaintiffs to serve their responding record by May 24, 2017.

6However, the plaintiffs did not serve their responding materials by May 24, 2017, and, on May 30, 2017, the parties attended Civil Practice Court to revise the timetable. At that time, Firestone J. made a direction approving the agreement between the parties to a revised timetable. The revised timetable required the plaintiffs to serve their responding record by June 5, 2017, and directed on consent that “if this deadline is missed, for any reason, the responding party will not be permitted to file any materials in response to the summary judgment motion”. The timetable also required that reply materials if any be served by June 30, 2017, cross-examinations be completed by July 31, 2017, the defendants’ factum was to be served by September 22, 2017, and the plaintiffs’ factum was to be served by October 6, 2017.

7In accordance with the revised timetable, the plaintiffs’ counsel served a responding motion record on June 5, 2017. The affidavit responding to the motion was sworn by a law clerk in the office of plaintiffs’ counsel. The responding materials do not contain any direct affidavit evidence from the plaintiffs.

8Cross-examinations were conducted on July 31, 2017. At that time, the plaintiffs’ counsel cross-examined Mr. Tufman, who swore the affidavit in support of the defendants’ motion for summary judgment. However, counsel for the defendants did not cross-examine the plaintiffs’ affiant.

9In accordance with the timetable, the defendants served their factum on September 22, 2017.

10The plaintiffs did not serve their factum on October 6, 2017, as had been required by the revised timetable.

11On October 13, 2017, the parties once again attended Civil Practice Court, at which time the plaintiffs’ counsel requested an adjournment for the purpose of filing additional evidence and on the basis of Ms. Vandenbergh’s illness. Firestone J. denied the request for an adjournment. In his direction on the issue, he made reference to the direction in the amended timetable that provided that, if the deadline for filing responding materials was missed, the plaintiffs would be precluded from filing any materials at a later date. He nevertheless directed that the plaintiffs would be permitted to serve and file their responding factum no later than 3:00 pm on October 16, 2017, which was two days before the motion for summary judgment was scheduled to be heard.

12The plaintiffs did not serve a responding factum on October 16, 2017.

13Instead, as indicated above, at the beginning of the motion on October 18, 2017, the plaintiffs’ counsel renewed the request for an adjournment. He did not provide any evidence in support of the request other than the medical document referred to above. In addition, he did not advise of any change in circumstances since October 13, 2017, when Firestone J. had previously denied the adjournment request. Rather, he made arguments to the effect that an articling student had argued for the initial request for an adjournment request, and Firestone J. may not have fully appreciated the circumstances of the request.

14The defendants opposed the request for an adjournment on two grounds. First, their counsel argued that Firestone J.’s decision denying the adjournment on October 13, 2017, gives rise to issue estoppel; absent a change in circumstances, I am not authorized to grant the adjournment. Second, there is no basis for granting an adjournment to permit the plaintiffs to submit further evidence as they do not meet the test for doing so under Rule 39.02(2) of the Rules of Civil Procedure. I agree with both of these arguments.

15In Early-Kendall v. Sirard, 2007 ONCA 468 at para. 46, the Court of Appeal found that it was an error for a judge to grant an adjournment already denied by a previous judge in the absence of a change in circumstances:

Although a trial judge enjoys an overarching discretion to consider a motion for an adjournment of a trial, that discretion must be exercise judiciously and in accordance with the law. It is not open to a trial judge to grant an adjournment on the basis of the same facts put to another judge of concurrent jurisdiction earlier in the proceedings in the absence of a change in circumstance, where the first judge refused the adjournment request. To do otherwise would fly in the face of the well-settled law of issue estoppel.

16As indicated above, there was no change in circumstances between October 13, 2017 and October 18, 2017. Accordingly, the issue of whether an adjournment was warranted is subject to issue estoppel.

17Even if there had been a change in circumstances or if this had been a first request, an adjournment would not have been appropriate. The plaintiffs’ reason for seeking an adjournment was a desire to file direct affidavit evidence from the plaintiffs in the place of the affidavit filed by the law clerk, which they claim could not be done in advance of the October 18th hearing date due to Ms. Vandenbergh’s medical issues. The revised schedule consented to by the parties and approved by Firestone J. clearly precluded the plaintiffs from filing materials beyond the deadline agreed to. In addition, there would be no basis for granting leave to file a supplementary affidavit. The circumstances permitting the filing of affidavits after cross-examinations are prescribed by Rule 39.02(2) of the Rules of Civil Procedure and would not be met in this case:

39.02(2) A party who has cross-examined on an affidavit delivered by an adverse party shall not subsequently deliver an affidavit for use at the hearing or conduct an examination under rule 39.03 without leave or consent, and the court shall grant leave, on such terms as are just, where it is satisfied that the party ought to be permitted to respond to any matter raised on the cross-examination with evidence in the form of an affidavit or a transcript of an examination conducted under rule 39.03.

18In this case, it appears that the plaintiffs sought to file a new affidavit sworn directly by them in response to the position taken by the defendants’ counsel regarding the admissibility of the law clerk’s affidavit. However, the fact that counsel for the defendants raised the issue of the appropriateness of the law clerk’s affidavit is not a matter that arises from the cross-examination of the defendants’ witness, and does not meet the requirements of 39.02(2). Accordingly, for the reasons set out above, there was no basis for granting the adjournment requested by the plaintiffs.

19I take this opportunity to note that after I advised the parties that I was denying the adjournment, counsel for the plaintiffs requested a break, which I granted, so that he could contact his clients to get instructions in light of my decision denying the adjournment.

20Following the break and the return of plaintiffs’ counsel, counsel for the defendants made his arguments on the merits of the motion. After counsel for the defendants completed his argument, counsel for the plaintiffs indicated that he had not been able to reach his clients during the break and that he did not have instructions to make arguments in response to the motion. I therefore did not hear any arguments from counsel for the plaintiffs in response to the motion, although he was given an opportunity to make arguments.

21I now turn to the basis on which the motion for summary judgment is granted.

Facts giving rise to the claim

22The Vandenberghs are husband and wife. The plaintiff 1317621 Ontario Inc. is a corporation of which Ms. Vandenergh is the sole shareholder.

23The defendant Marek Z. Tufman aka Marek Tufman (“Mr. Tufman”) is a lawyer, and he is the named partner of the defendant law firm, Tufman & Associates.

24Until the events giving rise to the litigation, Mr. Tufman had acted as litigation counsel for the plaintiffs on a number of matters over the course of a few years.

The defendants’ evidence on the motion

25In support of the motion for summary judgment, Mr. Tufman swore an affidavit in which he sets out the history of his dealings with the Vandenberghs and addresses the issues raised in their claim.

26In 2006, the plaintiffs retained Mr. Tufman as counsel to commence an action against a number of defendants (referred to in Mr. Tuffman’s affidavit as the “Black Action”). It appears that the purpose of the litigation was strategic and primarily designed to preempt a potential claim against Ms. Vandenbergh in respect of a personal guarantee she had given in relation to a real estate development project.

27Prior to issuing the statement of claim, Mr. Tufman wrote to the Vandenberghs to confirm the strategy behind the litigation, and to advise of the risks associated with the action including his opinion that the litigation had a low chance of success:

As you know, this action is going to be complicated on several levels. Firstly, the corporate Plaintiff is virtually insolvent, and in receivership. Secondly, Mr. Vandenbergh has virtually no cause of action (rights to sue), and Mrs. Vandenbergh is almost in the same position, as usually shareholders have no right to sue for damage done to their corporate vehicle; however, the connection through guarantee of corporate debts is tenuous, but it might suffice. The main purpose, as discussed, to have you both join the litigation is to protect the lawsuit from security for costs motion, and to have Mr. Vandenbergh produced at discoveries, as you both feared that Mrs. Vandenbergh would be most vulnerable in any examinations. Thirdly, the chances for success in this litigation are remote and the main thrust is to try to protect Mrs. Vandenbergh from any liability for any shortfall under her guarantee.

28After they received the letter, the Vandenberghs instructed Mr. Tufman to issue and serve the claim and provided him with a $10,000 retainer. The defendants in the Black Action counterclaimed. It appears that the action was then mired in a number of procedural issues, including a threatened motion to strike Mr. Vandenbergh’s claim. Ultimately, the motion was resolved, after which the defendants served a defence and counterclaim.

29Subsequently, Mr. Tufman advised the Vandenberghs that he would require a further retainer in order to proceed with documentary and oral discoveries in the Black Action. Despite this request, the Vandenberghs only provided him with an additional $4,250 in February 2009, in circumstances that will be addressed further below.

30After this, pursuant to a Master’s order, schedules were set for discoveries and requiring that the Black Action be set down for trial by no later than August 31, 2010. Mr. Tufman had a number of communications with the plaintiffs about the schedule and need for additional funds to pursue the Black Action. However, no further funds were provided nor did he receive responses to his communications.

31Ultimately, after sending the Vandenberghs a letter on April 12, 2010, reminding them again that there were upcoming deadlines and more financing was needed to pursue the Black Action, Mr. Tufman had a discussion with the Vandenberghs which he then confirmed by correspondence dated May 2, 2010. The correspondence confirmed the following:

1. “Proper” financing was required to advance the Black Action;
2. The Black Action was at a standstill and there was “no fuel” to move it forward;
3. The chances of success on the Black Action were “not overwhelming, at least on the evidence [he had] seen so far”;
4. Mr. Tufman’s firm could not continue to finance the litigation;
5. Under the circumstances, the Vandenberghs preferred to focus on another action they were involved in that might be a “more certain and immediate source of funds”;
6. The plaintiffs had instructed Mr. Tufman to take no further steps in the Black Action, and instead to focus on the other litigation;
7. Once the August 31, 2010 deadline for setting the Black Action down for trial expired, the case would likely be dismissed administratively but the plaintiffs would have a brief opportunity to have it restored; and
8. Ordinarily, Mr. Tufman would make arrangements to have himself removed as counsel on the Black Action, but he was prepared to remain as counsel of record to avoid stirring the defendants in that action into taking further steps in the litigation.

32Mr. Tufman’s firm conducted a search of the court file on the Black Action on October 19, 2010, and discovered that the matter had not yet been administratively dismissed. That day, Mr. Tufman advised the plaintiffs that their claim had not been dismissed and that they could still pursue the action if they wished to do so. He also advised them that they would have to retain new counsel on the Black Action if they wished to proceed. The plaintiffs responded that they did not want to pursue the Black Action.

33There was another similar exchange in August of 2011, at which point the Court had not yet dismissed the Black action and when the plaintiffs again confirmed that they did not intend to proceed with the action.

34In October of 2013, the parties encountered an impasse in relation to the other litigation on which Mr. Tufman had been acting. Due to unpaid fees in that matter, Mr. Tufman stopped acting for the plaintiffs and they retained new counsel.

35In June 2015, Mr. Tufman was contacted by the plaintiffs’ new counsel, in which he inquired about the status of the plaintiffs’ “pending civil matters”. Initially, Mr. Tufman did not provide any information about the Black Action as he assumed it had been administratively dismissed by that point. But after some clarification, he provided the Black Action file to the plaintiffs’ new lawyer.

36On April 7, 2017, after this action was commenced, the plaintiffs’ new counsel wrote to the Superior Court to inquire about the status of the Black Action. At that point, it appears that the Court had not yet dismissed the action for delay but the inquiry prompted the Court to do so. Accordingly, an order was issued on April 7, 2017, dismissing the Black Action for delay with costs.

The plaintiffs’ evidence on the motion

37The only affidavit filed by the plaintiffs on the motion is the affidavit of a law clerk in the office of the plaintiffs’ lawyer.

38While the affidavit contains many bald denials that Mr. Tufman provided advice about the risks associated with the Black Action or that the plaintiffs instructed him not to take any steps to move the action forward, there is no first hand evidence, including contemporaneous notes, emails or letters, in support of these statements.

39As discussed below, I have come to the conclusion that the affidavit is generally inadmissible and, in any event, should be given very little weight.

The plaintiffs’ claim

40On June 14, 2016, the plaintiffs commenced this action against the defendants. They seek over $70 million in damages, including punitive and aggravated damages. They allege that Mr. Tuffman was negligent in his handling of the Black Action, including by allegedly failing to move it along and allowing it to be dismissed administratively.

41The defendants served their statement of defence on December 13, 2016. They defended the claim on the basis that there was no negligence, and in particular that Mr. Tufman acted competently and in accordance with the plaintiffs’ instructions. They also plead that, in any event, the plaintiffs have suffered no damages.

Analysis

42The defendants’ motion for summary judgment raises the following issues:

1. What is the test on a motion for summary judgment?
2. Is the law clerk’s affidavit filed on the plaintiffs’ behalf admissible?
3. Does the claim in negligence raise a triable issue?
4. Does the claim that the defendants improperly withheld the plaintiffs’ money raise a triable issue?

Test on motion for summary judgment

43Under 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.

44As 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.”

45On 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 a procedure such as a mini-trial, rather than a full trial.

46The 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.).

47As 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 CanLII 4831 (ON CA), [1998] O.J. No. 3240 (Ont. C.A.); Bluestone v. Enroute Restaurants Inc., (1994), 1994 CanLII 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.).

Admissibility of law clerk’s affidavit

48As already referred to above, in response to this motion, the plaintiff relies on an affidavit sworn by a law clerk in their lawyer’s firm.

49As a preliminary issue, the defendants argue that the law clerk’s affidavit is inadmissible or alternatively that I should not give it any weight.

50In many instances, the affidavit is simply a statement of the plaintiffs’ position. For example:

• “The Plaintiffs sincerely believe that their claim had a very good chance of success had it been properly, and adequately litigated before the Superior Court of Justice by the herein defendants.”
• “The Plaintiffs take the position that they were assured on many occasions by the Defendant, their then lawyer, Mr. Marek Tufman …, that the Black Inc. action had good chances of success.”
• “Despite Tufman’s position that he did not remove himself from record to avoid a “sudden flurry of activity on the part of the Defendants”, the Plaintiffs maintain that the Defendants in the herein action failed to take any further steps due to negligence, mistake, or inadvertence, as detailed in the Plaintiffs’ claim”.
• “The Plaintiffs take the position that there are genuine issues requiring a trial with respect to the Plaintiffs’ Claim, as against the Defendants Marek Z. Tufman, and Tufman & Associates”.

51In other instances, the affidavit purports to provide evidence on the plaintiffs’ behalf on very contentious matters. For example:

• “The Plaintiffs were not at any time informed that the chances of success in the Black Inc. action were “remote”. Although the Plaintiffs were informed that success was not guaranteed, the Defendants impressed upon the Plaintiffs that there was a good chance of success.”
• “The Plaintiffs were led to believe by Tufman that the Black Inc. matter would cost approximately $50,000.00. The Plaintiffs do also verily believe that Tufman had informed them that the remainder of the litigation would be conducted on a contingency fee basis.”
• “The Plaintiffs do verily believe that they did also provide further monies to Tufman in cash, as it was demanded by Tufman. The Plaintiffs are conducting a review of their accounts in order to obtain evidence in support of any further monies paid to the Tufman [sic], and shall provide the information once obtained.”
• “The Plaintiffs believe that Tufman did not deposit any of the funds given by them to Tufman in the Solicitors Trust account, as Tufman had informed them that he did not wish to pay tax on the fees.”

52Notably, while in her opening paragraph, the law clerk makes the typical statement that she has personal knowledge of the matters deposed to in her affidavit “except where stated to be based on information, and belief, and where so stated, I verily believe such information to be true”, there are in fact no paragraphs in which she specifically attributes the source of her information, instead referring throughout to the “Plaintiffs”.

53Rule 20.02(1) of the Rules of Civil Procedure provides that:

An affidavit for use on a motion for summary judgment may be made on information and belief as provided in subrule 39.01 (4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.

54Rule 39.01(4) sets out the requirements for an affidavit made on information and belief:

An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.

55In Ferreira v. Cardenas, 2014 ONSC 7119, at paras. 14 and 17, this Court addressed the propriety of relying on a solicitor’s affidavit in the context of a motion for summary judgment. Myers J. made the following comment:

Generally, lawyers' affidavits are not appropriate for motions for summary judgment. Clients' and/or eyewitness firsthand evidence and expert opinion based on firsthand evidence are the trump suit.

Unlike these procedural motions, motions for summary judgment go to the heart of the merits of the dispute between the clients. The lawyers for the parties generally have no firsthand knowledge of the facts. They have no "specific facts showing that there is a genuine issue requiring a trial". For this reason, information and belief evidence tendered through a lawyer's affidavit will rarely satisfy rule 20.02. Moreover, as the Court of Appeal explained in Armstrong v. McCall, 2006 CanLII 17248 at para. 33, there is a concern that information and belief evidence will be used to shield persons from cross-examination.

56In this case, in my view, most of the law clerk’s affidavit is inadmissible because it contains improper opinion evidence and improper hearsay evidence on contentious matters. Even if it were admissible, I would give it little weight where it conflicts with Mr. Tufman’s first hand evidence. In fact, there are many instances in which the law clerk’s evidence is contradicted by Mr. Tufman’s direct evidence which is supported by correspondence or contemporaneous documents.

The claim in negligence does not raise a triable issue

57In order to establish that Mr. Tufman was negligent in relation to the Black Action, the plaintiffs would, at the very least, have to demonstrate that he fell below the standard of care, that he caused any losses the plaintiffs may have suffered and that in fact they suffered losses. I am satisfied that given the admissible evidence before me on the motion, the defendant has established that none of these elements of the plaintiffs’ claim in negligence raises a triable issue.

58The standard of care to be applied to a lawyer is that of a reasonably competent lawyer. A lawyer is required to bring reasonable care, skill and knowledge to the performance of the professional services he or she has been retained to perform: Singer v. Lipman Zener Waxman LLP, 2014 ONSC 4521 (Sup. Ct.) at para. 107. The reasonableness of a lawyer’s conduct is to be assessed based on the surrounding circumstances, including the client’s instructions: Singer v. Lipman Zener Waxman LLP, supra, at para. 110.

59In my view, in this case it is clear from Mr. Tufman’s evidence reviewed above, including some contemporaneous correspondence, that he did not fall below the standard of care:

1. He advised the plaintiffs that the chances of success on the Black Action were low, but they agreed to proceed for strategic purposes;
2. As the matter was proceeding toward discoveries, he explained to the plaintiffs the cost of proceeding further with the action. Given their limited resources, they made a decision to focus on the other litigation and did not provide Mr. Tufman with additional funds to pursue the Black Action.
3. He warned the plaintiffs of the consequences of not setting the Black Action down for trial by the deadline set by the Master;
4. He confirmed on more than one occasion their instructions not to pursue the Black Action, despite the fact that the action might be dismissed for delay; and
5. He followed up with the Court on at least two occasions following the deadline for setting the case down for trial to inquire about the status of the action, and advised the plaintiffs that they still had an opportunity to pursue the claim as it had not yet been administratively dismissed. He again received confirmation from the plaintiffs that they did not want Mr. Tufman to proceed further with the Black Action.

60I am satisfied that there is no triable issue as to whether Mr. Tufman met his professional obligations in the manner in which he handled the Black Action in light of his warnings to the plaintiffs and the instructions received from the plaintiffs.

61In any event, it does not appear that Mr. Tufman’s alleged failure to move the action forward was the cause of any damage to the plaintiffs. In fact, it was not until April 2017, almost 4 years after Mr. Tufman ceased working for the plaintiffs, that their new lawyer contacted the court about the action, at which point the action was administratively dismissed. In other words, the plaintiffs took no steps to revive or move the Black Action forward for several years after the end of Mr. Tufman’s retainer.

62Furthermore, the plaintiffs have not put forward any evidence that they suffered any losses as a result of the alleged negligence. The evidence on the motion is that the Black Action was a strategic move to avoid potential liability for Ms. Vanderbergh in relation to her personal guarantee. There is no evidence, beyond the inadmissible speculation of the law clerk that, if the action had continued, it would have resulted in damages payable to the plaintiffs. On the contrary, given the evidence on the strategic purpose of litigation, it appears that the administrative dismissal of the claim and counterclaim achieved the plaintiffs’ strategic goal of avoiding payment under the guarantee.

63Accordingly, I am satisfied that based on the evidence before me on the motion, the claim in negligence against Mr. Tufman does not raise a triable issue.

The claim that the defendants improperly retained the plaintiffs’ funds or property does not raise a triable issue

64The plaintiffs also allege that Mr. Tufman improperly retained funds and property that belonged to them.

65With respect to the funds, they allege that Mr. Tufman received $75,029.23 in Canadian currency and $10,600.00 in US currency, as a result of an order made by the Superior Court in another matter. They claim that Mr. Tufman never accounted for these funds and that he improperly retained them.

66In response to these allegations, Mr. Tufman swore a supplementary affidavit on the motion in which he provides evidence that fully responds to these allegations. He confirms that, following the order of the court, he received the funds in specie from the Peel Regional Police on February 5, 2009, and indicates that he provided the funds directly to Ms. Vandenbergh and Mr. Powers on February 6, 2009, without placing them in his trust account. His affidavit includes a receipt and acknowledgment signed and initialed on each page by Ms. Vandenbergh and Mr. Powers, confirming that they received the funds at issue. Mr. Tufman further attests that, on that day, the plaintiffs gave him $4250 out of these funds as payment for fees for the Black action.

67In respect of the allegations that Mr. Tufman had received valuable antiques in payment for part of the Black Action, again the plaintiffs’ evidence is provided through the law clerk’s inadmissible evidence. In contrast, Mr. Tufman explains in his affidavit that, around 1999, seven years before the Black Action was commenced, he received an antique as a gift in the context of another lawsuit.

68Again, I find that based on the admissible evidence before me, there is no basis for the plaintiffs’ claims that Mr. Tufman improperly retained the plaintiffs’ funds or other property.

Conclusion

69I am satisfied that I can make a just and fair determination of this matter based on the evidence available on the motion, and that the case does not raise any triable issues. Given the inadmissibility of the plaintiffs’ evidence, there are no factual issues in dispute. Even if I had admitted the affidavit, I would give little weight to the law clerk’s statements purportedly taking issue with Mr. Tufman’s evidence given that they are bald self-serving statements unsupported by any contemporaneous evidence, and I would therefore prefer Mr. Tufman’s evidence. This is precisely the type of assessment of evidence permitted by Rule 20.04(2.1) on a motion for summary judgment.

70Accordingly, the defendants’ motion for summary judgment is granted and the action is dismissed.

71The defendants seek costs of the motion and the action in the amount of $44,716.75 on a substantial indemnity basis, or alternatively in the amount of $33,108.99 on a partial indemnity basis. I am not satisfied that the plaintiffs’ conduct in the litigation rises to the level of warranting substantial indemnity costs. However, I find that the defendants are entitled to the full amount of partial indemnity costs sought. Given that the claim was for $70 million, the seriousness of the allegations made against the defendants and the additional steps required due to the plaintiffs’ noncompliance with to Civil Practice Court directions, the amount sought is proportionate and reasonable. The defendants are therefore entitled to $33,108.99 inclusive of disbursements and HST for their costs of the motion and the action.