CITATION: Graff v. Network North Reporting and Mediation, 2017 ONSC 7451

COURT FILE NO.: CV-15-539016

DATE: 20171213

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

MARIE GRAFF

Plaintiff

– and –

NETWORK NORTH REPORTING AND MEDIATION, NADINE KUEHNHOLD, JOHNSON INSURANCE, UNIFUND INSURANCE, DUTTON BROCK LLP, RYAN ST. AUBIN, KAHLER PERSONAL INJURY LAW FIRM PROFESSIONAL CORPORATION, DEBORAH J. LEWIS, BRENNAN KAHLER, LONGLEY VICKAR, LOUIS BRENT VICKAR, FOX PSYCHOLOGICAL SERVICES, ALLAN WALTON, DR. VALENTIN, DR. PAULA B. WILLIAMS MEDICINE PROFESSIONAL CORPORATION AND DR. PAULA WILLIAMS

Defendant

Marie Graff

in person

Lorraine E. Takacs

for the Defendants Network North Reporting and Mediation and Nadine Kuehnhold

Amanda Smallwood

for the Defendants Dr. Valentin, Johnson Insurance and Unifund Assurance Company

Robin Moodie

for the Defendants Dutton Brock LLP and Ryan St. Aubin

Brian A. Pickard and Earl Murtha

for the Defendants Kahler Personal Injury law Firm Professional Corporation, Deborah J. Lewis and Brennan Kahler

Alan L. Rachlin

for the Defendants Longley Vickar and Louis Brent Vickar

Todd J. Burke

for the defendants Allan Walton and Fox Psychological Services

Andrew Porter

for the Defendants Dr. Paula Williams Medicine Professional Corp. and Dr. Paula Williams

HEARD: July 26 and 28, and September 13,

2017

FAVREAU J.:

Introduction

[1] The plaintiff, Marie Graff, was involved in a motor vehicle accident (the “MVA”) on October 26, 2006. She subsequently commenced an accident benefit claim and a tort claim against the driver. The accident benefit claim has been resolved and the tort claim is still ongoing. Ms. Graff commenced this action in 2015 against the following sets of defendants who have had involvement in litigation arising from the MVA:

a. Longley Vickar and Louis Brent Vickar: the first law firm and lawyer who represented Ms. Graff in the MVA litigation;

b. Kahler Personal Injury Law Firm (“Kahler”), Deborah Lewis and Brennan Kahler: the third law firm and set of lawyers who represented Ms. Graff in the MVA litigation;

c. Allan Walton and Fox Psychological Services: a psychotherapist and his firm retained by Khaler on Ms. Graff’s behalf to conduct an assessment and prepare an expert report;

d. Dr. Paula Williams Medicine Professional Corp. and Dr. Paula Williams: a family physician with expertise in chronic pain retained by Khaler on Ms. Graff’s behalf to conduct an assessment and prepare an expert report;

e. Dr. Valentin: a psychologist retained by Khaler on Ms. Graff’s behalf to conduct an assessment and prepare an expert report;

f. Dutton Brock LLP and Ryan St. Aubin: the law firm and lawyer who acted for the defendant in the tort action arising from the MVA;

g. Johnson Insurance and Unifund Assurance Company: insurers for the defendant in the tort action arising from the MVA; and

h. Network North Reporting and Mediation (“Network North”) and Nadine Kuehnhold: the court reporting office and court reporter who recorded and transcribed Ms. Graff’s examination for discovery in the tort action arising from the MVA.

[2] The defendants in this action have brought motions under Rules 20, 21 and 25 of the Rules of Civil Procedure to dismiss Ms. Graff’s claim. These reasons address all of the motions. There is some overlap in the factual background and legal principles, and the reasons are therefore organized as follows:

a. Background facts;

b. Procedural history;

c. Test on a motion for summary judgment;

d. Test on a motion pursuant to Rules 21 and 25;

e. Motion by Longley Vickar and Louis Brent Vickar;

f. Motion by Kahler Personal Injury Law Firm, Debrorah Lewis and Brennan Kahler;

g. Motion by Allan Walton and Fox Psychological Services;

h. Motion by Dr. Paula Williams Medicine Professional Corp. and Dr. Paula Williams;

i. Motion by Dr. Valentin;

j. Motion by Dutton Brock LLP and Ryan St. Aubin;

k. Motion by Johnson Inc. and Unifund Assurance Company;

l. Motion by Network North and Nadine Kuehnhold; and

m. Conclusion

[3] For the reasons set out below, the defendants’ motions for summary judgment are all granted and Ms. Graff’s action is dismissed.

Background facts

[4] Ms. Graff was involved in a motor vehicle accident on October 26, 2006, on Lakeshore Boulevard in Toronto. Her vehicle was struck from the rear by a vehicle operated by Andrei Damyanovich.

[5] In 2008, she retained the defendant, Louis Vickar, to act for her in relation to the MVA.

[6] On October 7, 2008, Mr. Vickar commenced a tort action (the “MVA Action”) against Mr. Damyanovich on Ms. Graff’s behalf. Following two failed mediations, on August 26, 2009, Mr. Vickar also commenced an action in relation to Ms. Graff’s entitlement to accident benefits against own insurer (the “AB Action”).

[7] Ms. Graff terminated Mr. Vickar’s retainer on December 1, 2009, and retained a second lawyer, Allan Marron. At the time Ms. Graff terminated Mr. Vickar’s retainer, the MVA Action had been set down for trial and the AB Claim had not yet been defended.

[8] In 2012, Ms. Graff terminated Mr. Marron’s retainer and retained Kahler on April 26, 2012, to act for her in the MVA Action and the AB Action. By this time, the MVA had been struck from the trial list and the AB Action had been dismissed by the court for delay.

[9] During the course of its retainer, Kahler successfully brought a motion to reinstate the AB Action and negotiated a settlement of that action on Ms. Graff’s behalf. Kahler also restored the MVA Action to the trial list and took steps to get the action ready for trial, including obtaining expert reports on Ms. Graff’s behalf.

[10] Around the time Kahler was retained, Ms. Graff made a complaint to the Law Society of Upper Canada (the “Law Society”) against Mr. Marron. The complaint resulted in Mr. Marron’s resignation from the practice of law.

[11] On September 29, 2014, Ms. Graff dismissed Kahler and started representing herself in the MVA Action. The MVA Action is still outstanding.

Procedural history

[12] Ms. Graff currently has four outstanding actions related to her MVA:

a. The MVA Action;

b. Two actions initiated respectively in 2013 and 2014 against Mr. Marron related to his handling of the MVA Action and AB Action; and

c. This action which was initiated by notice of action on October 23, 2015, with the statement of claim issued on December 4, 2015. On January 4, 2017, the plaintiff served an Amended as New Statement of Claim (the “Claim”) in this action.

[13] The Claim makes allegations of wrongdoing against all of the defendants in relation to the MVA Claim and, in some cases, the AB Claim. The specific allegations against each of the defendants are described more fully below in the sections dealing with the motions brought by each set of defendants.

[14] Ms. Graff’s four actions are subject to case management. McEwen J. was the initial Case Management Judge and I took over case management of the actions in the summer of 2017. A number of case management directions were made leading up to the hearing of the defendants’ motions:

a. On December 1, 2016, a first case management conference was held, at which the trial date of December 5, 2016, in the MVA Action was adjourned, and Ms. Graff was given permission to amend her claim in this Action.

b. On March 1, 2017, at a case management conference, the motions brought by the defendants in this action were scheduled to be heard for three days on July 26, 27 and 28, 2017, and a schedule was set for materials and cross-examinations leading up to the hearing of the motions. Amongst other deadlines, the schedule provided that the defendants were to serve their motion records by April 15, 2017 and that Ms. Graff was to serve her responding materials by May 15, 2017.

c. On June 23, 2017, there was a further case management conference. At that time Ms. Graff had not yet served her responding materials. Ms. Graff indicated that she believed that there were deficiencies in the documents provided by the defendants. No adjournment was granted and Ms. Graff was urged to serve her responding materials forthwith. Ms. Graff was also advised that she should bring a motion for production if there were deficiencies in the documents produced by the defendants.

d. On July 18, 2017, a further case management conference was held at which time Ms. Graff requested an adjournment again on the grounds that she had not been able to bring a motion to obtain further documents from the defendants. By that point, she had served some but not all of her responding materials. I denied the adjournment on the basis that there had been no change in circumstances since the last request for an adjournment on June 23, 2017. However, I did provide that Ms. Graff could serve her responding materials up to 5:00 on the day before the motions were set to start.

[15] At the start of the motions on July 26, 2017, Ms. Graff advised that, while she had delivered some of her responding materials, she had not yet completed the preparation and delivery of all of her materials. Under the circumstances, I varied the schedule for the motions. The motions brought by Mr. Vickar and his firm and by Kahler and its lawyers were argued on July 26th. No motions were heard on July 27th to give Ms. Graff some additional preparation time. The motions brought by Mr. St. Aubin and his firm, Network North and its reporter, and the insurers were argued on July 28, 2017. The motions brought by the three other sets of defendants were rescheduled to September 13, 2017, and Ms. Graff was given additional time to file materials in response to those motions.

[16] Ms. Graff filed extensive affidavits responding to each of the motions brought by the defendants. She also filed facta in response to some but not all sets of motions. I have reviewed her evidence and facta, and considered these materials in deciding the motion. In many cases, the contents of her affidavits are in the nature of argument, speculation and conclusory statements, and are therefore not properly admissible as evidence. While I have not relied on these statements as evidence on the motion, I have nevertheless considered some of the arguments advanced through these affidavits. Therefore, even where no facta were filed, the combination of Ms. Graff’s affidavit and oral submissions allowed me to clearly understand her position in response to the defendants’ motions.

[17] The defendants all bring motions for summary judgment pursuant to Rule 20 of the Rules of Civil Procedure, and some of them also bring motions to strike the Claim pursuant to Rules 25.06 and 25.11. The legal principles applicable to these Rules are set out below.

Law on Summary Judgment

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

[19] 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.”

[20] 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, at para. 66. The motion judge is also permitted to use the expanded powers under Rule 20.04(2.2) to direct a procedure such as a mini-trial, rather than a full trial.

[21] The responding party may not rely on the prospect of additional evidence that may be tendered at trial; the respondent must put her best foot forward on the motion for summary judgment: 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.).

[22] In Sanzone v. Schecter, 2016 ONCA 566, at paras. 21 and 22, the Court of Appeal addressed cases such as this one where a respondent on a motion for summary judgment is self-represented:

Fairness requires a judge to accommodate a self-represented party’s unfamiliarity with the litigation process to enable her to present her case to the best of her ability: Davids v. Davids (1999), 1999 9289 (ON CA), 125 O.A.C. 375 (C.A.), at para. 36…

Of course, any accommodation made by a judge to a self-represented party must respect the rights of the other party: Davids, at para. 36. A defendant is entitled to expect that a claim of liability brought against it will be decided by the same rules of evidence and substantive law whether the plaintiff is represented by counsel or self-represented.

Law on Rules 21 and 25

[23] Rule 21.01 of the Rules of Civil Procedure provides as follows:

(1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.

[24] The test on a motion to strike pursuant to Rule 21.01 is, assuming all of the facts pleaded in the statement of claim can be proven, whether it is “plain and obvious” that the plaintiffs’ statement of claim discloses no reasonable cause of action: Hunt v. T & N plc, 1993 43 (SCC), [1993] 4 S.C.R. 289 at para. 36, and R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 17.

[25] As held in Becker v. Crowe Estate, 2015 ONSC 4207 (Sup. Ct.), at para. 20, the test can be met if the pleading suffers from one of the following three flaws:

(a) a plaintiff pleads allegations that do not give rise to a recognized cause of action;

(b) a plaintiff fails to plead a necessary element of a recognized cause of action; or

(c) the allegations in the pleading are simply conjecture, assumptions or speculation unsupported by material facts, or where mere conclusions of law are asserted.

[26] The courts have also emphasized that on a motion brought pursuant to Rule 21.01, the “pleading must be read as generously as possible, erring on the side of permitting an arguable claim to proceed to trial”: Rausch v. Pickering (City), 2013 ONCA 740 (C.A.), at para. 34.

[27] Rule 25.06(1) of the Rules of Civil Procedure provides as follows:

Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved.

[28] Rule 25.06(8) of the Rules of Civil Procedure provides as follows:

Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.

[29] In addition, Rule 25.11 provides as follows:

The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

Motion by Longley Vickar and Louis Brent Vickar

[30] The defendants Longley Vickar and Louis Brent Vickar move to strike the claim against them pursuant to Rules 21.01 and 25.06(1) of the Rules of Civil Procedure, or alternatively they seek summary judgment.

Facts relevant to the motion brought by these defendants

[31] Ms. Graff retained Mr. Vickar and his firm in February 2008, to represent her in respect of legal claims she may have arising from the MVA. At that time, Ms. Graff’s claim to her own insurer for accident benefits was ongoing and no tort claim had yet been commenced on her behalf.

[32] Mr. Vickar has filed an affidavit in support of his motion for summary judgment.

[33] In his affidavit, Mr. Vickar provides the following information about the steps he took in relation to Ms. Graff’s accident benefit claim:

a. On April 25, 2008, Mr. Vickar submitted an application for mediation to the Financial Services Commission;

b. In late 2008, on instructions from Ms. Graff, Mr. Vickar reached a tentative settlement in relation to Ms. Graff’s accident benefit claim. However, Ms. Graff subsequently instructed Mr. Vickar to rescind the settlement, which he did;

c. After the settlement was rescinded, Mr. Vickar submitted a second application for a mediation to the Financial Services Commission; and

d. On August 26, 2009, Mr. Vickar commenced the AB Action.

[34] Mr. Vickar took the following steps in relation to Ms. Graff’s tort claim:

a. On October 2, 2008, Mr. Vickar issued the MVA Action asserting a tort claim against Mr. Damyanovich on Ms. Graff’s behalf;

b. On February 2, 2009, Mr. Vickar served an unsworn affidavit of documents on the defendant’s counsel;

c. Examinations for discovery proceeded on April 22, 2009. Mr. Vickar notified Ms. Graff about the discoveries on February 2, 2009, and he met with her in advance of the examination to prepare her; and

d. Mr. Vickar served and filed the trial record on July 11, 2009.

[35] On December 1, 2009, Mr. Vickar was notified that Ms. Graff no longer wished to have him act on her behalf, and that she had retained Mr. Marron to assume carriage of the MVA Action and AB Action. Mr. Vickar transferred his file to Mr. Marron. At the time of the transfer, both of Ms. Graff’s actions were still ongoing.

[36] Ms. Graff made a complaint to the Law Society of Upper Canada in relation to Mr. Vickar’s conduct. Mr. Vickar was notified about the complaint in 2010, after which he responded to the complaint. After reviewing the complaint, the Law Society concluded that there was no support for further regulatory or discipline proceedings but that some aspects of the complaint warranted giving Mr. Vickar the Lawyer Best Practices Information, which the Law Society described as “remedial guidance as to how a situation could have been avoided”.

[37] In her claim and affidavits, the allegations Ms. Graff makes against Mr. Vickar are essentially that:

a. Mr. Vickar was unprepared for the accident benefit claim mediations, and he pressured her into accepting the first settlement offer made;

b. Mr. Vickar suggested that Ms. Graff retain a new lawyer after the second mediation failed;

c. Mr. Vickar failed to obtain various documents in relation to the accident or in support of her damages;

d. Mr. Vickar did not prepare her for examinations for discovery, and interrupted her during the course of the examination;

e. Mr. Vickar tried to pressure her into signing an acknowledgement that the transcript from her discoveries was accurate; and

f. Mr. Vickar obtained a waiver to file a defence in the accident benefit action but failed to set a deadline by which the defence would be filed.

Issues and analysis

[38] These defendants argue that the claim as pleaded does not disclose a cause of action and does not meet the rules of pleading, and should therefore be struck in accordance with Rules 21.01 and 25.06(1). Alternatively, they seek summary judgment on the basis that the limitation period has expired, Mr. Vickar’s conduct did not fall below the standard of care and Ms. Graff has not suffered any damages due to these defendants’ alleged negligence.

[39] I am not satisfied that the pleadings against these defendants are so deficient that the claim against them should be dismissed on this basis. Read generously, Ms. Graff asserts a claim in negligence based at the very least on allegations that Mr. Vickar did not prepare her properly for examinations for discovery and that he failed to obtain the necessary documents and reports in support of her claim. Accordingly, I would not dismiss Ms. Graff’s claim against these defendants based on arguments that the pleadings are so deficient that they do not disclose a cause of action.

[40] However, I am persuaded that summary judgment is appropriate on the basis of the limitation period and that the claim in negligence does not give rise to a triable issue.

[41] With respect to the limitation period, section 4 of the Limitations Act, 2002, S.O. 2002, C. 24, Sched. B, prescribes a two year limitation period:

Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[42] Section 5 of the Limitations Act, 2002, sets out when a claim is “discovered”:

(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

[43] The general principles applied in the case law as to when a claim is discovered are as follows:

a. A limitation period commences at the time the plaintiff discovers the underlying material facts or, alternatively, when he or she ought to have discovered the facts with the exercise of due diligence: Nicholas v. McCarthy Tetrault, 2008 54974 (ON SC), [2008] O.J. No. 4258 (Sup. Ct.) at para. 26, aff’d 2009 ONCA 692, [2009] O.J. No. 4061 (C.A.), leave to appeal denied [2009] S.C.C.A. No. 476;

b. Even if a plaintiff does not appreciate the legal significance of the facts, the limitation period starts to run when he or she knows or ought to know about the material facts: Nicholas v. McCarthy Tetrault, supra, at para. 27; and

c. While damages are an element of a claim in negligence, the plaintiff only needs to be aware that some damage has occurred for the limitation period to start to run: Peixeiro v. Haberman, 1997 325 (SCC), [1997] 3 S.C.R. 549 at para. 18.

[44] In this case, all of the facts giving rise to the claim against these defendants would have been know when Ms. Graff discharged Mr. Vickar in December 2009. Notably, she made a complaint to the Law Society in 2010, raising many of the issues raised in this action. Significantly, in the letter from the Law Society advising Ms. Graff about the outcome of the complaint, she was specifically informed that the Law Society has no jurisdiction to deal with potential negligence claims against a lawyer and warned her about the potential application of limitation periods:

The Law Society does not have regulatory jurisdiction to deal with negligence issues. Specifically, the law Society does not have jurisdiction to:

• Give legal advice on the merits of a negligence claim;

• Decide if a lawyer was negligent;

• Decide the amount of the losses or damages incurred caused by any negligence;

• Order that a lawyer pay damages for negligence; or

• Order a lawyer to correct the problems caused by the alleged negligence.

If you want to pursue the matter, you should consider obtaining legal advice on the legal options available to you.

There are limitation periods setting the time in which you must sue a lawyer if you are alleging negligence. If you do not sue the Lawyer within this time period, you may lose your right to do so. The fact that you have made a complaint to the Law Society or that the Law Society may be conducting an investigation regarding conduct issues is not relevant to any civil suit you may wish to bring against the Lawyer. Your complaint to the Law Society will not stop a limitation period from running or expiring. You are responsible to ensure that the requirements for any time limits are properly met.

[45] Ms. Graff did not commence her action against these defendants until October 23, 2015, almost five years after receiving this letter from the Law Society. At that time, she knew all of the facts giving rise to her complaint and she had even been advised about the potential application of the limitation period. Accordingly, I am satisfied that Ms. Graff’s claim against these defendants is barred by the limitation period.

[46] Even if the claim is not barred by the limitation period, these defendants argue that Ms. Graff has not presented evidence that Mr. Vickar fell below the standard of care and that, in any event, she did not suffer any damages.

[47] Neither Mr. Vickar nor Ms. Graff have filed any expert evidence on the issue of whether Mr. Vickar met the standard of care. Generally, expert evidence is required in relation to the standard of care applicable to a lawyer: Hendry v. Strike, [2005] O.J. No. 6306 (Sup. Ct.) at para. 143. In Sanzone v. Schecter, supra, at para. 33, the Court of Appeal suggested that once a defendant on a motion for summary judgment has filed an affidavit in his or her own name in support of the motion for summary judgment, the plaintiff in a professional negligence claim must meet his or her burden with expert evidence, which Ms. Graff did not do in this case.

[48] In any event, regardless of whether it is sufficient for these defendants to rely on Ms. Graff’s failure to deliver an expert report on the issue of whether Mr. Vickar met the standard of care, there is no evidence that Mr. Vickar’s alleged negligence caused her any damage. At the time Ms. Graff discharged Mr. Vickar, the AB Action and MVA Action were still live claims. She was still able to pursue both claims, and there is no evidence to suggest that any of Mr. Vickar’s acts or omissions had the effect of compromising her ability to pursue those actions.

[49] With respect to the accident benefit claim, Mr. Vickar followed Ms. Graff’s instructions to withdraw from the settlement reached at the first mediation. In addition, while she complains that Mr. Vickar did not negotiate a deadline for the delivery of a defence but, rather, left things open ended, there is no evidence that this caused damage to Ms. Graff.

[50] With respect to the MVA Action, the service of an unsworn rather than a sworn affidavit of documents does not give rise to damages, and is an issue that can be remedied as discussed below in the section dealing with the claim against Kahler.

[51] In respect of Ms. Graff’s claim that Mr. Vickar did not properly prepare her for examinations for discovery, there is no evidence that this caused her any damage, and the Rules of Civil Procedure provide her with opportunity to correct any errors in her evidence: see Rule 31.09(1) of the Rules of Civil Procedure, which provides that:

31.09 (1) Where a party has been examined for discovery or a person has been examined for discovery on behalf or in place of, or in addition to the party, and the party subsequently discovers that the answer to a question on the examination,

(a) was incorrect or incomplete when made; or

(b) is no longer correct and complete,

the party shall forthwith provide the information in writing to every other party.

[52] Finally, her claim that Mr. Vickar was rude may be a matter of professional discipline, but it has not affected Ms. Graff’s ability to pursue her AB Action or MVA Action.

[53] Accordingly, I am satisfied that Ms. Graff’s claim against these defendants does not raise a triable issue.

Motion by Kahler Personal Injury Law Firm, Deborah Lewis and Brennan Kahler

[54] The defendants Kahler Personal Injury Law Firm, Deborah Lewis and Brennan Kahler move to strike the Claim as disclosing no cause of action, or, alternatively, they move for summary judgment.

Facts relevant to the motion brought by these defendants

[55] Kahler was the law firm that represented Ms. Graff in respect of her MVA Action and AB Action from April 26, 2012 to September 29, 2014. Ms. Lewis was the lawyer with primary responsibility for her file. Mr. Kahler also had some involvement on the file.

[56] In her claim and her affidavits in response to the motion, Ms. Graff makes a number of allegations against these defendants that can be grouped as follows:

a. Ms. Lewis made false statements in the materials filed on the motion to have the AB Action reinstated;

b. These defendants failed to turn over their whole file at the end of the retainer;

c. These defendants did not cooperate with the Law Society’s investigation into Mr. Marron’s conduct;

d. These defendants pressured Ms. Graff to enter into an improvident settlement in the AB Action, in particular by preventing her from asserting a civil claim against Mr. Marron;

e. These defendants failed to serve a sworn affidavit of documents in the MVA Action;

f. These defendants acted improperly in retaining experts, including by providing gynecological reports to Dr. Williams and by representing that Mr. Walton was a psychologist;

g. These defendants did not undertake a proper investigation of the facts in the MVA Claim, including by failing to obtain statements from the paramedics who attended after the accident and other potential witnesses;

h. These defendants did not keep Ms. Graff sufficiently informed about the litigation; and

i. They improperly harassed and badgered Ms. Graff.

[57] In support of their motion, Khaler and its lawyers have provided a number of affidavits, including affidavits sworn by Ms. Lewis and a law clerk at the firm. In addition, they have filed an expert report prepared by Alfred Kwinter, in which Mr. Kwinter addresses each of the issues raised by Ms. Graff and provides an opinion that these defendants met the standard of care.

Issues and analysis

[58] These defendants argue that Ms. Graff’s claim should be struck because it does not disclose a cause of action, is an abuse of process and is scandalous and vexatious. They also move for summary judgment on the basis that the claim against them does not raise a triable issue.

[59] I do not agree that the Claim fails to disclose a cause of action against these defendants. Read generously, Ms. Graff asserts a claim in negligence against them. I do agree that the pleading is deficient in the sense that it does not comply with the rules of pleading. It is replete with argument, evidence and irrelevant materials.

[60] However, these are defects that can be cured by amendment. In my view, the more fundamental flaw in Ms. Graff’s claim against these defendants is that, based on the evidence before me, there is no triable issue regarding the manner in which they handled Ms. Graff’s MVA Action and AB Action. I am satisfied that they met the standard of care, and in any event, none of the alleged wrongs caused Ms. Graff any compensable damage.

[61] Generally, as referred to above, in a solicitor’s negligence case, expert evidence is required from an experienced solicitor to show how the lawyer against whom a claim is asserted fell below the standard of care: Hendry v. Strike, supra. In this case, these defendants filed a comprehensive opinion prepared by Mr. Kwinter. But Ms. Graff did not file an expert report in support of her claim against Kahler and its lawyers.

[62] Having reviewed all of the evidence, including the expert evidence, I am satisfied that none of the alleged deficiencies upon which Ms. Graff relies raises a triable issue because the standard of care was met and because none of the alleged acts of negligence have caused any damages to Ms. Graff. All of the allegations listed above are addressed individually below:

a. Alleged false statements on motion to reinstate AB file:

• Ms. Graff does not specify what misrepresentations were made by Ms. Lewis or how such misrepresentations harmed her.

• Ms. Lewis’ evidence is that she prepared an affidavit in support of the motion with the assistance of counsel for LawPro, and that the statements in the affidavit were supported by documents.

• Even if there were untruths in Ms. Lewis’ affidavit, of which there is no evidence, these statement would be protected by the absolute privilege accorded to statements made by counsel and evidence in court proceedings: A.A. v. Macri, 2010 ONCA 99, at para. 19. The remedy for any such misconduct is a complaint to the Law Society and not a civil action: MacDonald v. MCAP Service Corp., 2013 ONSC 4473 (Sup. Ct.) at paras. 15 and 17.

• The outcome of the motion was to reinstate the AB Action, so there is no basis for finding that Ms. Graff suffered any damages.

b. Alleged failure to provide complete file to Ms. Graff at end of the retainer:

• The issue of whether Kahler provided its complete file to Ms. Graff at the conclusion of the retainer has already been addressed on a number of occasions by the courts, and is therefore a collateral attack on previous proceedings that have already decided this issue: Mason v. Jeffrey Shatford, 2014 ONSC 3580 (Sup. Ct.), at para. 45. Most recently, on June 30, 2016, in a decision arising in the MVA Action, reported as 2016 ONSC 4409, a single judge of the Divisional Court denied an extension of time requested by Ms. Graff to appeal a Master’s order on the issue of the production of Kahler’s file, finding, amongst other things at paras. 7, 26 and 27, that:

7. For each document requested, the Master ruled that the document had been produced, did not exist, there was no such document to produce or could not be located. The chart reveals that most of the documents in issue had been previously produced.

8. Given the careful approach the Master took in the review of every document requested and the reasons given, there simply is no merit to this appeal.

9. Sadly, it seems that the plaintiff cannot or will not accept that she has been given the respondent's file. She believes that something is missing when clearly her motions have now exhausted the production issue.

• Ms. Graff now alleges that Khaler made misrepresentations to the Court in responding to her motion for production. There is no evidence in support of this allegation, and in any event the principles referred to above in relation to the absolute privilege accorded to statements made in court would apply to preclude a claim based on the inaccuracy of such statements.

c. Alleged failure to cooperate with the Law Society regarding complaint against Mr. Marron:

• Other than Ms. Graff’s bald allegation, there is no evidence that Ms. Lewis failed to cooperate with the investigation. On the contrary, Ms. Lewis in her affidavit provides evidence in relation to the information provided to the Law Society, including having supplied the Law Society with a copy of the file her firm received from Mr. Marron.

• In any event, any duty owed by Ms. Lewis in relation to the complaint is to the Law Society and not to Ms. Graff, and Ms. Graff has not put forward any evidence of damages suffered as a result of this alleged failure.

d. Pressure to enter into improvident AB Action settlement:

• Ms. Graff’s primary complaint about the AB Action settlement is that it precluded her from suing Mr. Marron. However, it is evident from the direction that she signed giving Kahler authority to settle the AB Action on her behalf that Ms. Graff agreed that if she chose to sue Mr. Marron, Kahler would not act for her.

• Clearly, Ms. Graff has not been precluded from suing Mr. Marron because she in fact has two outstanding actions against him.

• Finally, in his opinion, Mr. Kwinter states that there was nothing improper in the manner Khaler handled the settlement of the AB claim, and I accept this evidence.

e. Alleged failure to serve sworn affidavit of documents:

• Ms. Lewis’ evidence is that she prepared a detailed affidavit of documents, but that it was never sworn by Ms. Graff because of the breakdown in their relationship.

• I accept Mr. Kwinter’s expert evidence on this issue to the effect that “it is common practice for counsel in personal injury actions to provide an unsworn Affidavit of Documents on the understanding that a sworn copy would be forthcoming. In my opinion, there is no breach of the standard of care with respect to this allegation.”

• In any event, there is no evidence of prejudice or damage to Ms. Graff due to the fact that she did not swear the affidavit of document prepared by Kahler. In fact, as the MVA is ongoing, it is still open to her to swear the affidavit and serve it on the plaintiffs’ counsel.

f. Alleged improper retainer of expert witnesses:

• The focus of Ms. Graff’s complaints in relation to Kahler’s dealings with the medical experts retained on her behalf are that Kahler improperly provided gynecological medical records to Dr. Williams which ended up forming the basis for her opinion, and they misrepresented that Dr. Walton was a doctor of psychology.

• On the first issue, Ms. Lewis’ evidence is that Dr. Williams was provided with a copy of all of Ms. Graff’s medical records, which included gynecological medical records and which is the normal practice when retaining medical experts. In reviewing Dr. Williams’ opinion, it is evident that she did not base her conclusion about Ms. Graff’s medical issue solely on menopause or hormone levels. On the contrary, Dr. Williams concludes that many of Ms. Graff’s medical issues are in fact attributable to the MVA. In any event, as reviewed further below, independent experts do not owe a duty to the parties in the litigation but rather to the court.

• On the issue of whether Kahler represented that Mr. Walton was a doctor of psychology, Ms. Lewis denies that she did so. There is no need to resolve this discrepancy in the evidence given that Ms. Graff would have suffered no damages even if Mr. Walton qualifications were misrepresented. As reviewed below, Mr. Walton was supervised by a certified psychologist and the report was prepared jointly with that psychologist.

• Mr. Kwinter’s opinion is that these defendants met the standard of care in dealing with the experts.

• Ultimately, while Ms. Graff may be upset by some of the contents of the expert reports, there is no evidence that they have caused her any damage. In fact, the evidence is that, once Ms. Graff expressed concern over their contents, they were not delivered to the defendant’s counsel in the MVA Action.

g. Alleged failure to obtain evidence for MVA Action:

• Ms. Graff asserts that Kahler failed to interview various witnesses and obtain evidence that would support her MVA.

• Ms. Lewis in her affidavit provides a detailed review of the evidence that was obtained and the rationale for not pursuing other evidence. For example, the ambulance attendants were not interviewed because Ms. Graff’s discovery evidence was that she had told them she was fine immediately following the accident. Notably, even in her materials on this motion, Ms. Graff acknowledges that this is what she told the ambulance attendants immediately following the accident.

• Mr. Kwinter has reviewed Ms. Lewis’ evidence, and indicated that in his opinion Kahler did not fall below the standard of care in this respect. I accept his conclusion.

h. Failure to keep Ms. Graff informed

• Kahler has provided extensive evidence of its ongoing contacts with Ms. Graff, including dockets and emails. Mr. Kwinter has reviewed this information and concluded that:

The affidavit of Ms. Lewis at par. 115-128 sets out in considerable detail the fact that Ms. Graff was in fact, kept fully informed of the status of her claim. This is confirmed by numerous dockets. I note that in her affidavit Ms. Wilkes at par. 16, 22-25 states that she met with Ms. Graff and allowed her to review the contents of her file on two occasions for a total of 3.3 hours.

As the statements of both Ms. Lewis and Ms. Wilkes are supported by documentary evidence, it is my opinion that the Khaler Firm met the requisite standard of care with respect to keeping Ms. Graff informed as to the status of her claim.

• I accept Mr. Kwinter’s opinion, and I also note that there is no evidence that Ms. Graff suffered any damages due to the alleged lack of communication.

i. Harassment and badgering:

• As indicated above, Kahler has provided extensive evidence of its communications with Ms. Graff. They have included emails addressed to Ms. Graff explaining the need for a meeting to move her claim forward.

• Mr. Kwinter reviewed Kahler’s evidence, and in his report specifically addresses the issue of whether the communications were harassing, concluding as follows:

Par 152-167 of Ms. Lewis’s Affidavit deal with this issue. As noted above numerous attempts were made by the Khaler firm to have Ms. Graff attend an appointment. She refused to do so. What Ms. Graff refers to as “badgering and hounding” was according to the Khaler firm their attempts to have her cooperate in order that they could advance the case.

I do not view the steps taken by the Khaler firm as unreasonable and in my opinion, there has been no breach of the standard of care in respect of the allegation.

• Again, I accept Mr. Kwinter’s opinion, and, in any event, there is no evidence of damage caused by Kahler’s alleged harassing behaviour.

[63] There are a number of other smaller similar issues raised by Ms. Graff against Kahler. Having reviewed the evidence, including Mr. Kwinter’s report, none of them raise any concerns that these defendants may have been negligent. On the contrary, what the record shows is that Kahler took the MVA Action and the AB Action on at a time when these proceedings were in serious jeopardy, and did a considerable amount of work to remedy the situation and advance the claims on Ms. Graff’s behalf. Ultimately, she may have wished for stronger evidence in support of her MVA Action or she may have been upset by some of the statements contained in the expert reports, but these are normal challenges associated with participation in litigation; they in no way support a claim in negligence against these defendants. Most notably, she can still pursue the MVA Action as she sees fit, and accordingly she has suffered no damages due to the alleged acts or omissions of these defendants.

[64] Accordingly, I am satisfied that Ms. Graff’s claim against these defendants does not raise a triable issue.

Motion by Allan Walton and Fox Psychological Services

[65] The defendants Allan Walton and Fox Psychological Services (“Fox”) seek summary judgment.

Facts relevant to the motion brought by these defendants

[66] Mr. Walton is a psychotherapist, and he is the principal of Fox, which is a corporation.

[67] In her claim, Ms. Graff takes issue with a report prepared by Mr. Walton, alleging that it contains many errors and that it was prepared maliciously, in collusion with other experts, and for the purpose of harming her.

[68] In support of the motion for summary judgment, Mr. Walton has sworn an affidavit in which he describes his involvement with Ms. Graff. He and his firm were involved in preparing the following two reports on Ms. Graff’s behalf at Kahler’s request:

a. In the fall of 2012, Fox was retained to conduct an intake appointment and prepare an OCF-18 Treatment and Assessment Plan on Ms. Graff’s behalf. An OCF-18 is required to obtain approval and funding for a treatment plan from one’s own insurer. Mr. Walton conducted an interview with Ms. Graff via telephone on October 5, 2012, and submitted his report on October 10, 2012. The Treatment and Assessment Plan was ultimately denied by Ms. Graff’s insurer.

b. In the summer of 2014, Kahler again retained Fox, this time to conduct a psycho-vocational assessment and report for the purpose of Ms. Graff’s litigation in the MVA Action. Mr. Walton conducted the assessment with Dr. Zulfiqar H. Gilani, a psychologist employed by Fox. The report was submitted to Kahler on September 2, 2014, and was based on in person interviews and the review of clinical notes provided to Fox. After the report was submitted, Kahler raised some issues based on comments made by Ms. Graff. Small modifications were then made to the report. Notably, the initial and revised versions of the report were supportive of Ms. Graff’s claim in the MVA Action. Fox never received payment for the report.

Issues and analysis

[69] These defendants rely on two arguments in support of their motion for summary judgment. First, they argue that the reports they prepared are protected by expert witness immunity, and, second, that in any event, there is no evidence of negligence or any other improper conduct in the preparation of the reports.

[70] The motion by these defendants is brought pursuant to Rule 20 of the Rules of Civil Procedure. Accordingly, the issue to be decided is whether the claim against these defendants raises a triable issue.

[71] Having reviewed Ms. Graff’s evidence and Mr. St. Aubin’s evidence, and having regard to the legal principles relevant to a claim against expert witnesses, I am satisfied that Ms. Graff’s claim against these defendants does not raise a triable issue.

[72] Expert witness immunity for independent experts providing opinions for the purpose litigation is well established: see for example Halpern v. Morris, 2016 ONSC 7855 (Sup. Ct.) and Fabian v. Margulies (1985), 1985 2063 (ON CA), 53 O.R. (2d) 380 (C.A.).

[73] Expert witness immunity is absolute. It extends to all activities related to the preparation of a report and testimony in court. It also extends to allegations of bad faith. The rationale and extent of expert immunity were recently addressed by this Court in Sheehan v. Snell, 2016 ONSC 6340, at paras. 43 to 46, as follows:

43. The protection of the integrity of the judicial process requires that an expert witness be immune from civil suit by any person with whom his or her only relationship derives from the judicial proceeding: Varghese v. Landau (2004), 2004 5084 (ON SC), 3 R.F.L. (6th) 204 (Ont. S.C.), at para. 48; Carnahan v. Coates (1990), 1990 2299 (BC SC), 71 D.L.R. (4th) 464 (B.C.S.C.), at p. 474; Howatt v. Klassen (2005), 31 C.C.L.T. (3d) 54 (Ont. S.C.), at paras. 11 and 15, citing Fabian v. Margulies (1985), 1985 2063 (ON CA), 53 O.R. (2d) 380 (Ont. C.A.).

44. Immunity from suit extends not only to reports filed in court and oral evidence given in court, but also to activities outside of court related to a report or its preparation: Varghese v. Landau, at para. 49; Smith (next friend of). v. Kneier, 2001 ABQB 291, 288 A.R. 144, at para. 11, citing Evans v. London Hospital Medical College [1981] 1 All E.R. 715 (Q.B.).

45. The protection is absolute. Even allegations of bad faith are insufficient to remove the application of the immunity doctrine: Howatt v. Klassen, at paras. 11-13, citing Samuel Manu-Tech Inc. v. Redipac Recycling Corp. (1999), 1999 3776 (ON CA), 124 O.A.C. 125 (C.A.).

46. One of the justifications for immunity is the protection of the court process, which seeks to discourage relitigation of issues: Smith (next friend of). v. Kneier, at para. 14. This is especially important in the family law context, which is already fraught with conflict. In the family law context, attempts to sue expert witnesses have been dismissed or struck out at early stages because of immunity: e.g. Van de Vrande v. Butkowsky, 2010 ONCA 230, 99 O.R. (3d) 648; Carnahan v. Coates; Howatt v. Klassen; Varghese v. Landau; Smith (next friend of) v. Kneier.

[74] This Court, in Paul v. Sasso, 2016 ONSC 6173, at paras. 17, has also recognized that expert witness immunity extends to assessments and reports prepared by a party’s own expert:

The policy of the common law to ensure that all witnesses are able to give their evidence free or fear of retaliatory law suits is not diminished when considered from the perspective of a party’s own expert witness. To the contrary, the very strong policy of the common law has been that a party’s own expert must be objective and not become a “hired gun”.

[75] In this case, the 2014 report was clearly covered by expert witness immunity. It was prepared at the request of Ms. Graff’s counsel for the purpose of advancing the MVA Action. All activities related to the preparation of the report and the report itself are therefore subject to immunity.

[76] In any event, Ms. Graff has not put forward any evidence that these defendants were negligent in the preparation of their report, other than her dissatisfaction with some of the content of the report. However, this is precisely why expert witness immunity is essential. Experts must be neutral. They cannot prepare their reports with a view to pleasing litigants in a case, otherwise they lose their neutrality. Ultimately, the remedy for a litigant faced with an unfavourable report is to not serve the report and not rely on the expert at trial. In this case, while the report could in fact be viewed by a court as supportive of Ms. Graff’s claim in the MVA Action, the report has in fact not been served in that action and Ms. Graff has not paid for the report. She has therefore not suffered any damages.

[77] With respect to the 2012 report for the OCF-18 Treat and Assessment Plan, the decision of the Court of Appeal for Ontario in Lowe v. Guarantee Company of North America, 2005 80693 (ON CA), [2005] O.J. No. 2991, at para. 48, suggests that Mr. Walton may have owed a duty of care to Ms. Graff in the preparation of the report for accident benefit purposes. However, I do not need to resolve this issue for the purposes of this motion. Ms. Graff’s only complaint about this report is that Mr. Walton did not conduct the interview in person. Mr. Walton acknowledges that the interview was conducted over the telephone. However, there is no evidence that conducting a telephone interview fell below the standard of care or that Ms. Graff suffered any damages as a result of the telephone interview. While Mr. Walton’s report did not lead the insurer to accept Ms. Graff’s Treat and Assessment Plan, there is no evidence linking this refusal to any negligence in the preparation of the report.

[78] Accordingly, I am satisfied that Ms. Graff’s claim against these defendants does not raise a triable issue.

Dr. Valentin

[79] The defendant, Dr. Irina Valentin, seeks summary judgment in relation to the claims advanced against her in this action.

Facts relevant to the motion brought by this defendant

[80] Dr. Valentin is a psychologist registered with the College of Psychologists of Ontario.

[81] Based on a referral by Fox, Dr. Valentin was retained by Khaler on behalf of Ms. Graff to conduct a neuro-cognitive assessment and to prepare a report for the purpose of the MVA litigation.

[82] In her amended claim, Ms. Graff alleges that Dr. Valentin was negligent in the preparation of her report and that she refused to disclose the test scoring that formed the basis of the report.

[83] In support of this motion, Dr. Valentin has filed an affidavit sworn by an associate in her lawyer’s office and a reply affidavit that she has sworn herself. The evidence demonstrates that Dr. Valentin’s involvement with Ms. Graff was limited to the testing for the neuro-cognitive assessment and to the preparation of a draft report:

a. The assessment took place on September 12, 2014, and included a psychological assessment and a review of the report prepared by Mr. Walton and Dr. Gilani.

b. At the assessment, Dr. Valentin requested that Ms. Graff sign a consent allowing her to share her report with Fox. Ms. Graff signed the consent after inquiries were made with Mr. Walton.

c. Dr. Valentin delivered her report to Fox on September 20, 2014.

d. Dr. Valentin then became aware of additional medical information provided by Kahler. She started revising her report based on the additional information, but was then informed by Mr. Walton that it was not necessary for her to complete the report because Ms. Graff had terminated Kahler’s retainer.

e. In response to a request from Ms. Graff, Dr. Valentin did provide her with a copy of the report on March 13, 2015.

Issues and analysis

[84] Dr. Valentin argues that Ms. Graff’s claim is barred by expert witness immunity, and in any event that there has been no negligence.

[85] I am satisfied that Ms. Graff’s complaints about Dr. Valentin’s testing and report are barred by the law of expert witness immunity as reviewed above in the section of these reasons addressing the claim against Mr. Walton and Fox. Dr. Valentin was retained for the purpose of conducting a psychological assessment and report in the context of her MVA Action. Therefore all of the activities related to the preparation of the report and the report itself are subject to immunity.

[86] In any event, as with the claim against Mr. Walton and Mr. Fox, there is no evidence that Dr. Valentin fell below the standard of care in the assessment or preparation of her report, and, most significantly, no evidence of damages. The report was never finalized or served on the defendant’s lawyers in the MVA Action.

[87] With respect to the allegations that Dr. Valentin has improperly withheld information and documents from Ms. Graff, this is not an issue that gives rise to a claim for damages. Any such issues are to be raised by way of motions for production, which have in fact been pursued by Ms. Graff.

[88] Accordingly, I am satisfied that Ms. Graff’s claim against Dr. Valentin does not raise a triable issue.

Motion by Paula B. Williams Medicine Professional Corporation and Dr. Paula Williams

[89] Paula B. Williams Medicine Professional Corporation (“Williams Medicine”) and Dr. Paula Williams (“Dr. Williams”) seek summary judgment in relation to the claim Ms. Graff asserts against them.

Facts relevant to the motion brought by this defendant

[90] Dr. Williams is a family physician with expertise in chronic pain. Williams Medicine is a corporation through which Dr. Williams conducts medico-legal assessments.

[91] In her claim against these defendants, Ms. Graff takes issue with the contents of a report prepared by Dr. Williams and she also asserts that Dr. Williams improperly disclosed a copy of the report to Ms. Graff’s family physician.

[92] In support of the motion for summary judgment, Dr. Williams has sworn an affidavit and reply affidavit, in which she provides the following information about her involvement with Ms. Graff:

a. She was retained in late 2012 by Kahler to conduct a chronic pain assessment and to prepare a report setting out her opinion.

b. She conducted the assessment on December 6, 2012, and then prepared a report delivered to Kahler on March 21, 2013. In her report, Dr. Williams concluded that Ms. Graff had a number of medical and psychiatric conditions, including chronic pain and depression, and that these had been caused by her motor vehicle accident.

c. She also attests to the fact that she provided a copy of her report to Ms. Graff’s family doctor in accordance with a consent signed by Ms. Graff. Her affidavit includes a copy of the signed consent.

Issues and analysis

[93] These defendants assert that Ms. Graff’s claims against them are barred by expert witness immunity, and that in any event they have not been negligent or otherwise acted improperly.

[94] I am satisfied that Ms. Graff’s complaints about Dr. Williams’ assessment and report are barred by the law of expert witness immunity as reviewed above in the section of these reasons addressing the claim against Mr. Walton and Fox. Dr. Williams and her corporation were retained for the purpose of conducting a medical assessment and report in the context of her MVA Action. While Ms. Graff may disagree with some of the facts stated in the report and may feel upset by some of the comments and diagnoses, all of the activities related to the preparation of the report and the report itself are subject to expert witness immunity.

[95] While Dr. Williams vigorously denies that anything in her report is false, as held in Sheehan v. Snell, supra, at para. 55, the law of expert witness immunity extends to false and even malicious statements:

As put in Samuel Manu Tech, at para. 19, adopting a passage from Halsbury's Laws of England, Fourth Edition Reissue, 1997, Vol. 28, at para. 97: "The evidence of all witnesses or parties speaking with reference to the matter before the court is privileged, whether oral or written, relevant or irrelevant, malicious or not." An expert may have to answer to his or her professional regulator, as occurred here, but he or she is immune from civil suit by an adverse party.

[96] In any event, there is no evidence that Dr. Williams fell below the standard of care in the assessment or preparation of her report, and, most significantly, no evidence of damages. Ms. Graff has not produced an expert report supporting her claim that Dr. Williams’ report fell below the standard of care. Given that Dr. Williams’ report supports Ms. Graff’s claim in the MVA Action and that it was in fact never delivered, there is no evidence that the report has caused her any damages.

[97] I also do not see any merit to Ms. Graff’s claim that Dr. Williams improperly disclosed her report to Ms. Graff’s family doctor. I accept Dr. Williams’ evidence that Ms. Graff provided her consent to the disclosure. While Ms. Graff argued on the motion that the consent was a forged document, she had no expert evidence in support of this contention. In addition, there is absolutely no evidence of any motivation Dr. Williams may have had for sending the report without Ms. Graff’s consent. In any event, there is no evidence of damage caused by this allegation. It appears that Ms. Graff’s doctor had already received a copy of the report from Kahler and Ms. Graff has not asserted any evidence of damage caused by the disclosure.

[98] Accordingly, I am satisfied that Ms. Graff’s claim against Dr. Williams and Williams Medicine does not raise a triable issue.

Motion by Ryan St. Aubin and Dutton Brock

Facts relevant to the motion brought by these defendants

[99] Dutton Brock and Ryan St. Aubin acted for the defendant in the MVA Action until the summer of 2015, after which another law firm took over the defence of the MVA Action.

[100] In her claim, Ms. Graff alleges that these defendants:

a. Were involved in manipulating the transcript from her examinations for discovery;

b. That they suppressed documents relevant to her MVA Action; and

c. That they failed to deliver a sworn affidavit of documents.

[101] Ms. Graff claims that as a result of these alleged wrongful acts, the MVA Action “has little arguable value, since many pertinent documents have not been procured within the limitation period and no valid and reliable reports for loss have been generated”.

[102] In support of the motion for summary judgment, Mr. St. Aubin swore an affidavit in which he sets out the history of the MVA Action. He indicated that he delivered on behalf of the defendant a first affidavit of documents in 2009, and a second affidavit of documents in 2015.

[103] In his affidavit, he addresses the allegation that he and his firm participated in tampering with Ms. Graff’s transcript from examinations for discovery, stating “I did not engage in any tampering with the audio or written transcript from the examinations for discovery in the underlying action”.

[104] He also denies suppressing any documents, stating that all relevant documents were produced on behalf of his client in the original and supplementary affidavits of document.

Issues and analysis

[105] The motion by these defendants is brought pursuant to Rule 20 of the Rules of Civil Procedure. Accordingly, the issue to be decided is whether the claim against these defendants raises a triable issue.

[106] Having reviewed Ms. Graff’s evidence and Mr. St. Aubin’s evidence, and having regard to the legal principles relevant to a claim against opposing counsel, I am satisfied that Ms. Graff’s claim against these defendants does not raise a triable issue.

[107] The case law is clear that lawyers do not owe a duty of care to opposing parties in the context of litigation. For example, in Shuman v. Ontario New Home Warranty Program, [2001] O.J. No. 4102 (Sup. Ct.) at para. 25:

Moreover, as to claims against them in negligence, or breach of fiduciary duty, there is no legal authority to support the proposition that a solicitor for a party owes a duty of care to an opposing party. Therefore, there is no basis for a claim in negligence or fiduciary duty against these defendants (Geo. Cluthe Manufacturing Co. Ltd. v. ZTW Properties Inc. (1995), 1995 10684 (ON SC), 23 O.R. (3d) 370 (Div. Ct.) at 380). Moreover, it has been held that complaints relating to an opposing solicitor's allegedly unethical conduct during proceedings do not provide a basis for a cause of action (Brignolio v. Desmarais, Keenan, [1995] O.J. No. 3499 (Gen. Div.), appeal dismissed [1996] O.J. No. 4812 (C.A.)).

[108] During the argument of the motion, Ms. Graff indicated that she accepted that Dutton Brock and Mr. St. Aubin did not owe her a duty of care, however, in her view, these parties were involved in a conspiracy with other parties to falsify her discovery evidence and defeat her claim. There are a number of reasons why these allegations do not raise a triable issue.

[109] First, to the extent Ms. Graff alleges that the conduct of these defendant was improper or unethical, the case law is clear that ethical duties are owed to the court and not to an opposing party, as referred to above in Shuman, supra, and also in Brignolio v. Desmarais, Keenan, [1995] O.J. No. 3499 (Sup. Ct.) at paras. 15 to 17:

15. In my view, this passage makes it clear that the solicitor's ethical duty is owed not to the opposite party in the litigation but to the court and in Ontario, I would add, to the Law Society of Upper Canada as the governing body of the legal profession.

16. There is no duty upon the defendant to, or in favour of, the plaintiff to act ethically. That is a duty which is owed to the court. As the duty is not owed to the plaintiff, he cannot bring an action based upon it. He may have other remedies but they do not lie in this present action.

17. If the policy of the court were otherwise, the same difficulties would arise as would arise in the case of negligence. There would be a temptation, which many would find irresistible, to relitigate in actions against their opponent's counsel the issues which they have lost in the main litigation, or to attempt to handicap the other side by eliminating experienced and knowledgeable counsel from the case. The public policy in such instances is referred to by Lord Donaldson of Lymington M.R. in Al-Kanderi v. J.R. Brown & Co. [1988] 1 All E.R. 833 at p. 835 (C.A.) cited in the Cluthe case (supra) as follows:

I would go rather further and say that, in the context of "hostile" litigation, public policies were usually required that a solicitor be protected from a claim in negligence by his client's opponent, since such claims could be used as a basis for endless relitigation of disputes.

[110] Second, while Ms. Graff asserted on a number of occasions during her submissions that these defendants were involved in a conspiracy with other parties, the claim only baldly pleads such a conspiracy at paragraph 54 without providing any particulars:

The Defendant Ryan St. Aubin, of The Defendant Dutton Brock LLP, is the lawyer for the Defendant, Damyanovich, insured by Unifund in partnership with Johnson Insurance, in the matter of the MVA tort, and is implicated in the editing of the audio and subsequent fraudulent transcript from the examination for discoveries.

[111] This is not a mere technicality. These are serious allegations and, in accordance with Rule 25.06(8), must be supported by more than mere speculation.

[112] Finally, there is in fact no evidence that Mr. St. Aubin or Dutton Brock were involved in conspiring to tamper with the evidence from Ms. Graff’s examination for discovery. Ms. Graff believes that such tampering occurred because she does not agree that the evidence from her discovery reflects what she in fact stated during the examination. She also believes Mr. St. Aubin participated in the alleged tampering because he had discussions with her counsel and others during the examination. This is a far cry from the type of evidence required to demonstrate that Mr. St. Aubin was involved in any tampering.

[113] Accordingly, I am satisfied that Ms. Graff’s claim against these defendants does not raise a triable issue.

Motion by Johnson Insurance and Unifund Insurance

Facts relevant to the motion by these defendants

[114] The motion by Johnson Insurance and Unifund Insurance is brought pursuant to Rule 20 of the Rule of Civil Procedure.

[115] While the statement of claim names the defendant as Unifund Insurance, the proper legal name for this defendant is Unifund Assurance Company (“Unifund”).

[116] Unifund is the insurer of the defendant in the MVA Action. Johnson Insurance (“Johnson”) is Unifund’s parent company.

[117] The allegations against Unifund and Johnson are very similar to those made against Mr. St. Aubin and Dutton Brock. Ms. Graff claims that these insurers were involved in the alleged conspiracy to doctor the transcript from her examination for discovery.

[118] In support of the motion for summary judgment, Unifund and Johnson have put forward an affidavit sworn by an associate at the law firm representing these defendants, in which she recounts the procedural history of these proceedings and in which she states:

The plaintiff has not put forward any evidence, nor does any evidence exist that these defendants, or any individual they are responsible for in law, directly or indirectly compiled, edited or transcribed the above transcripts, or had any role in producing fraudulent transcripts.

Issues and analysis

[119] The motion by these defendants is brought pursuant to Rule 20 of the Rules of Civil Procedure. Accordingly, the issue to be decided is whether the claim against these defendants raises a triable issue.

[120] As with the claim against Mr. St. Aubin and Dutton Brock, the case law is clear that a party adverse in interest and his or her insurer do not owe a duty of care to an opposing party in the context of litigation. See for example, Garrett v. Oldfield, [2014] O.J. No. 411 (Sup. Ct.) at para. 26:

With respect to the claim related to an alleged duty of SEGSS, Dowker, Guarantee and Temple to protect the plaintiff's interests in the settlement of the Original Action based on a breach of duty of care and breach of fiduciary duty, it is noted that the defendants were adverse in interest to the plaintiff in the Original Action, in which she was represented by independent counsel. It is clear that there is no authority to support the proposition that a litigant, or his or her lawyer, owes a duty of care to an opposing party (see Geo. Cluthe Manufacturing Co. v. ZTW Property Inc. 1995 10684 (ON SC), [1995] O.J. No. 4897 (Div. Ct.) at p. 10). Moreover, is also established law that no duty of care is owed by an insurer to a party who is adverse an interest to that insurer's insured. Any duties owed by an insurer are owed to its own insured (see 1013952 Ontario Inc. v. Sakinofsky [2009] O.J. No. 4096 (S.C.J.) at para. 32).

[121] Again, Ms. Graff concedes that these defendants do not owe her a duty of care. However, she maintains that she has a valid claim against them for conspiring to tamper with her discovery transcript.

[122] The flaws in this claim are the same as with the claim against Mr. St. Aubin and Dutton Brock. She has not pled any particulars in support of these allegations nor has she put forward any evidence, other than mere speculation, in support of these allegations.

[123] Accordingly, I am satisfied that Ms. Graff’s claim against these defendants does not raise a triable issue.

Motion by Network North Reporting and Mediation and Nadine Kunhold

[124] Network North Reporting and Mediation (“Network”) and Nadine Kunhold (“Ms. Kunhold”) seek to strike the claim brought against them on the basis of Rule 25.11 or, alternatively, they seek summary judgment pursuant to Rule 20 of the Rules of Civil Procedure.

Facts relevant to the motion by these defendants

[125] Network is the owner and operator of the court reporter’s office at which discoveries in the MVA Action were conducted on April 22, 2009. Ms. Kuehnbold was the court reporter who presided at the examinations.

[126] Ms. Graff alleges the transcript and recording of her examination for discovery contain omissions and falsifications. She claims that the transcript contains statements she would never have made and that there are statements she made during discoveries that are not included in the transcript. She pleads baldly Network was part of a conspiracy to tamper with the evidence involving Dutton Brock, Mr. St. Aubin and Unifund.

[127] In support of their motion, these defendants originally relied on an affidavit sworn by a lawyer in the office of the law firm representing them setting out the history of the MVA and this action. The primary argument advanced by these defendants was that the pleadings were deficient as they did not plead the requisite particulars in support of the serious allegations of falsification, and, in any event, there was no evidence to support Ms. Graff’s claim against them.

[128] In her responding affidavit, Ms. Graff attached two reports she obtained, which she claims support her position that the audio from her discovery was doctored:

a. A report by Ken Burke, in which he reviewed the audio file and indicated a few instances in which he expressed the opinion that the file had been edited in fourteen locations.

b. A report prepared by Ronald Eckstein, in which he comments on some discrepancies between the audio file and the transcription.

[129] Network’s records show that Ms. Graff’s examination for discovery occurred on April 22, 2009 from 10:30 am to 12:50 am. While Ms. Kuehnhold was no longer employed by Network at the time a transcript of Ms. Graff’s discovery was requested, Network made arrangements with another company to have the transcription done. After it was transcribed, Network performed a standard quality control before it was sent to Kahler.

[130] Given the allegations in the litigation, Network has conducted a second quality check to ensure that the transcript is an accurate transcription of the audio file, and “no error, omissions or edits were identified in comparing the audio with the transcript”.

[131] Following a request by Ms. Graff, Network voluntary provided her with a copy of the audio recording from her examination for discovery on April 28, 2015. The affiant states that she personally took the audio file directly from the electronic recording device used at Ms. Graff’s discovery and that there “have been no modifications, alterations, deletions or changes of any type to that audio file”. She was not cross-examined on this evidence.

[132] These defendants also provided an affidavit sworn by Michael Fletcher, an audio-engineer, who attaches a report responding to the reports prepared by Mr. Burke and Mr. Eckstein, and an Acknowledgement of Expert’s Duty pursuant to Rule 53.03.

[133] In his report, Mr. Fletcher provides the following conclusion:

While there is a fair amount of noise on the recording, people breathing, talking, moving, shuffling papers and furniture, and the MP3 file is clipped*[1] in a great many places, I found nothing to suggest the file had been edited, with one exception which will be discussed later.

[134] He reviews each of the fourteen points at which Mr. Burke had suggested the audiofile had been edited, disagreeing with Mr. Burke’s view and providing the explanation that the sounds referred to are the sound of breathing, paper shuffling or hesitation in Ms. Graff’s answers.

[135] In his report, Mr. Fletcher addresses the one instance of apparent editing as follows:

Following the break in recording, a conversation picks up that has no beginning question, only an answer.

The lawyer asks if they are off the record and then starts talking. He pauses, likely realizing that the recording device is still running, and asks again if they are off the record. The recording is then shut off and there is a clear break. When the recording starts up again, it sounds like the question asked of Graff was missed, meaning that the recording device was turned on after the question was asked.

I see no evidence of this being anything other than a pause in the recording. There is no reason to think this is two audio files edited together after the fact.

[136] He also comments on Mr. Eckstein’s report, noting Mr. Eckstein’s conclusion that “I can see no sign that the recording and transcripts are in error”, and agreeing with that conclusion.

Issues and Analysis

[137] With respect to the merits of Ms. Graff’s allegations against these defendants, I am satisfied that they have established that the claim of tampering does not raise a triable issue. Ms. Graff’s only evidence in support of this serious allegation is her recollection of what she believes she said on discovery, and the reports of Mr. Eckstein and Mr. Burke attached to her affidavit. As a matter of law, these reports are inadmissible because the evidence of an expert cannot be provided through a report attached to a party’s affidavit: see, for example, Danos v. BMW Group Financial Services Canada, a division of BMW Canada Inc., 2014 ONSC 2060 (Sup. Ct.) at para. 29, aff'd. 2014 ONCA 887; and Toronto-Dominion Bank v. Schrage, 2009 45444 (ON SC), [2009] O.J. No. 3636 (Sup. Ct.) at para. 39.

[138] Even if I were to accept these reports, in my view, they do not support a finding that these defendants intentionally tampered with Ms. Graff’s evidence. Mr. Burke’s report merely identifies fourteen locations in the audio file where, due to what he views as anomalous sounds, it appears to him that the transcript has been edited. For his part, Ms. Eckstein does not in fact find any significant discrepancies between the audio file and the transcript.

[139] To the extent that there is any conflict between Ms. Graff’s evidence and these defendants’ evidence, I find these defendants’ evidence more reliable and credible. Network has provided an unchallenged explanation for the manner in which the discovery was recorded and transcribed, and the steps it has taken to ensure that the transcription is accurate. Network has also produced an admissible expert report that provides a credible explanation for the fourteen sounds and interruptions identified by Ms. Graff’s report as anomalous in the audio file.

[140] I must also note that there is absolutely no evidence of anything to be gained by these defendants intentionally tampering with the transcript or any reasons for them to be motivated to do so.

[141] In any event, there is no evidence that Ms. Graff has suffered any damages as a result of the alleged changes in her discovery evidence. Any evidence that may have been omitted cannot cause her damage because she cannot rely on her own transcript at trial, and she will have an opportunity to lead all relevant evidence in relation to the accident and her damages at the trial of her MVA Action. If there are in fact inaccuracies in her evidence in the transcript, she can correct those errors in accordance with Rule 31.09(1) of the Rules of Civil Procedure referred to above. Finally, she has not identified any specific evidence that was contrary to what she said during her discovery that will or could cause her damage at trial.

[142] Accordingly, I am satisfied that Ms. Graff’s claim against these defendants does not raise a triable issue.

Conclusion

[143] I am satisfied that I can make a just and fair determination of these motions based on the evidence available and the submissions of counsel for the defendants and Ms. Graff, and that the case does not raise a triable issue. In most instances, there was no conflict in the admissible evidence. In the few instances where there was such a conflict, I have weighed the evidence or provided an explanation as to why the difference in evidence was not material to the issue being decided.

[144] Ms. Graff has advanced an action naming numerous defendants making serious allegations of professional negligence, and even intentional wrongful conduct. While many issues are raised, they are almost all based on speculation. In my view, this is precisely the type of case that can be addressed through a motion for summary judgment. A trial would be lengthy and complex, when the issues can in fact be addressed efficiently through affidavit evidence and legal arguments. In this case, summary judgment is “a proportionate, more expeditious and less expensive means to achieve a just result”.

[145] I note in conclusion that Ms. Graff still has a live claim in the MVA Action, which she can still pursue to recover any damages she may have suffered as a result of the MVA.

[146] Accordingly, summary judgment is granted to all defendants and Ms. Graff’s claim is dismissed.

[147] If the parties are seeking costs, counsel for the defendants can forward their submissions on costs to my assistant’s attention by no later than Friday, December 22, 2017. Submissions are to include a costs outline and submissions no longer than two pages. Ms. Graff’s responding submissions are to be delivered no later than Monday, January 8, 2018.

[148] A case management conference will be convened early in the new year with Ms. Graff and counsel for the parties in the three other actions under case management.

FAVREAU J.

RELEASED: December 13, 2017

CITATION: Graff v. Network North Reporting and Mediation, 2017 ONSC 7451

COURT FILE NO.: CV-15-539016

DATE: 20171213

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

MARIE GRAFF

Plaintiff

– and –

NETWORK NORTH REPORTING AND MEDIATION, NADINE KUEHNHOLD, JOHNSON INSURANCE, UNIFUND INSURANCE, DUTTON BROCK LLP, RYAN ST. AUBIN, KAHLER PERSONAL INJURY LAW FIRM PROFESSIONAL CORPORATION, DEBORAH J. LEWIS, BRENNAN KAHLER, LONGLEY VICKAR, LOUIS BRENT VICKAR, FOX PSYCHOLOGICAL SERVICES, ALLAN WALTON, DR. VALENTIN, DR. PAULA B. WILLIAMS MEDICINE PROFESSIONAL CORPORATION AND DR. PAULA WILLIAMS

Defendant

REASONS FOR JUDGMENT

FAVREAU J.

RELEASED: December 13, 2017

[1] Mr. Fletcher provides definitions in which he explains that “clipping ” as follows: “Digital clipping occurs when the amplitude of a signal goes beyond the limits set by a digital recording system. Data is lost, and harsh digital distortion sound can easily be heard.”