Court File and Parties

COURT FILE NO.: CV-160706 DATE: 2019-03-15 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ZAKA ULLAH KHAN Plaintiff / Responding Party

– and –

KRYLOV & COMPANY and DEVRY SMITH FRANK LLP Defendants / Moving Parties

Counsel: Mr. Zaka Ullah Khan, Self-Represented Ms. Bronwyn M. Martin, for the Defendant / Moving Party, Krylov & Company Mr. Louis P. Covens, for the Defendant / Moving Party, Devry Smith Frank LLP

HEARD: January 16, 2019

REASONS FOR DECISION ON MOTION FOR SUMMARY JUDGMENT

STRIBOPOULOS J:

Introduction

[1] The plaintiff, Mr. Khan, initiated this action against the two defendants, who are both law firms.

[2] Krylov & Company represented Mr. Khan in a personal injury tort action that he commenced following a car accident. Devry Smith Frank LLP (“DSF”) acted for the other driver in that action. DSF was retained by the other driver’s insurer, TD General Insurance Company (“TD Insurance”).

[3] The parties agree that the personal injury tort action ultimately settled. The dispute at the centre of this litigation is over the amount paid by TD insurance to settle the tort action.

[4] Mr. Khan alleges that the two defendants conspired together to conceal from him the true amount paid by TD Insurance to settle the claim and then misappropriated the difference between what the insurer actually paid and what he ultimately received. The defendants deny these allegations.

[5] The defendants move for summary judgment under Rule 20.01(3) of the Rules of Civil Procedure. They argue that there is an absence of evidence capable of supporting Mr. Kahn’s claim. It follows, they contend, that there is no genuine issue for trial in this action. Given this, the defendants submit that summary judgment should be granted in their favour.

[6] Mr. Khan opposes the motion for summary judgment. He essentially argues that the motion record contains both direct and circumstantial evidence capable of supporting his claim. He contends that the evidence raises serious credibility issues that can only be resolved at a trial.

[7] These reasons will proceed in three parts. The first part consists of a brief review of the law governing motions for summary judgment. The evidence put forward by the parties on the motion is summarized in the second part. This will include careful consideration of the evidence that Mr. Khan maintains is capable of supporting his claim. Finally, these reasons will address whether or not this is an appropriate case for summary judgment.

I. The Law Governing Motions for Summary Judgment

[8] The parties disagree about whether or not this is an appropriate case to be decided by summary judgment. Therefore, the only path forward on this motion is through Rule 20.04(2)(a). It directs that the court, “shall grant summary judgment if … the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence”. Rule 20.04(2)(a) must be read in conjunction with Rule 20.04(2.1), which provides:

In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[9] In Hryniak v. Mauldin, 2014 SCC 7, [2014] S.C.R. 87, the Supreme Court of Canada clarified the meaning of these rules and provided essential guidance on their operation. The Court interpreted both Rules 20.04(2)(a) and 20.04(2.1), explained their interrelationship, and gave direction regarding the approach to be employed by judges hearing summary judgment motions. In her reasons for the Court, Karakastanis J. set out the following helpful summary, writing at paragraph 66:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

See also Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126, at para. 22 [Bruno Appliance].

[10] On a motion for summary judgment the focus is on both the pleadings and the evidence. This is because, “[a] motion for summary judgment must be judged on the basis of the pleadings and materials actually before the judge, not on suppositions about what might be pleaded or proved in the future.” Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, at para. 19 [Lameman] (emphasis added). See also Deavitt v. Greenly, et al, 2017 ONSC 5674 (Div. Ct.), at para. 38.

[11] It follows that on a motion for summary judgment the parties are expected to marshal the evidence capable of supporting their respective pleadings. The court is, “entitled to assume that the record on a motion for summary judgment contains all the evidence the parties would present at trial.” Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at para. 27, affirmed 2014 ONCA 878. See also Da Silva v. Gomes, 2018 ONCA 610, at para. 18 [Da Silva]. In other words, each side is expected to “put its best foot forward.” 2212886 Ontario Inc. v. Obsidian Group Inc., 2018 ONCA 670, 295 A.C.W.S. (3d) 287, at para. 49. The case law routinely cautions that a party responding to a motion for summary judgment must, “lead trump or risk losing.” See e.g. Da Silva, at para. 18.

[12] With the benefit of this brief overview of the principles governing motions for summary judgment, I will turn next to summarizing the evidence presented by the parties on this motion.

II. The Evidence on the Motion

(a) Mr. Khan retains Krylov & Company and commences a personal injury tort action

[13] In March 2011, Mr. Khan retained Krylov & Company to represent him in a personal injury tort action. Mr. Khan apparently suffered soft-tissue injuries in a car accident that took place on October 3, 2010. Initially, Michelle Simard, an associate at Krylov & Company, represented Mr. Khan.

[14] Pleadings were eventually exchanged. A statement of claim issued on August 22, 2012. TD Insurance, the insurer for the other driver involved in the car accident, retained DSF to defend the action. On March 12, 2013, a statement of defence was filed.

(b) Mr. Khan and Mr. Krylov meet

[15] In the late summer or early fall of 2013, Ms. Simard left Krylov & Company. In the aftermath of her departure, Richard Lebkowski, an associate at Krylov & Company, assumed carriage of Mr. Khan’s file. However, Mr. Lebkowski was not available on the date scheduled for examinations for discovery. As a result, Michael Krylov briefly assumed responsibility for Mr. Khan’s file.

[16] At some point in the fall of 2013, before Mr. Khan’s examination for discovery, Mr. Krylov and Mr. Khan met. According to Mr. Khan, during their initial meeting Mr. Krylov told him that his file was worth $320,000 to $350,000. In his affidavit, sworn before Mr. Khan’s affidavit, Mr. Krylov does not address this specific allegation. Instead, he deposes that at no time did he tell Mr. Khan that the settlement was in the range of $800,000 (in apparent response to an allegation contained in Mr. Khan’s statement of claim).

(c) An initial offer to settle

[17] Mr. Khan’s examination for discovery took place on November 27, 2013. Mr. Krylov accompanied Mr. Khan during his examination for discovery. According to him, on that date counsel for the defendant made an offer to settle the action for the all-inclusive amount of $65,000.

[18] Mr. Krylov’s evidence is inconsistent regarding the timing of this offer. In his affidavit, he deposes to receiving the offer after the examination for discovery was completed. However, during cross-examination, he maintained that the offer was made before the examination for discovery commenced.

[19] In any event, Mr. Krylov claims to have discussed the offer to settle with Mr. Khan. According to him, Mr. Khan responded that he wanted a settlement that would ensure he ended up with $65,000 in his “pocket.” In response, Mr. Krylov deposed that he recommended that Mr. Khan accept the offer and told him that he would waive his fees. During cross-examination, Mr. Krylov suggested he went even further, offering not only to waive his fees but also his disbursements. Despite this unusually generous gesture, Mr. Krylov reports that Mr. Khan rejected the offer because he wanted more money.

[20] During cross-examination, Mr. Krylov acknowledged failing to memorialize the settlement offer or his discussions about it with Mr. Khan. This may explain why Mr. Krylov’s account of the offer to settle is at odds with that of Jodi Herszkowicz, the lawyer at DSF who was acting for the defendant in the tort action.

[21] According to Ms. Herszkowicz, with instructions from her client, before examining Mr. Khan, she offered to settle the tort claim for $50,000 all inclusive. She reports that Mr. Krylov responded with a counter-offer of $90,000 all inclusive. Ms. Herskowicz rejected this offer.

[22] In his evidence, Mr. Khan does not address whether or not he discussed an offer to settle with Mr. Krylov on the date he attended for discovery. Rather, to the extent that his evidence addresses the events of that day he deposes that following the examination for discovery Mr. Krylov told him that his case would be proceeding to mediation.

(d) A second offer to settle

[23] There was a renewal of settlement discussions at some point after January 9, 2014, when Ms. Herszkowicz received authorization from her client to settle the action.

[24] The negotiations took place over the phone and involved Ms. Herszkowicz and Mr. Lebkowski. On February 26, 2014, these discussions culminated in an offer to settle the action for the all-inclusive sum of $82,500.

[25] Ms. Herszkowicz and Mr. Lebkowski each maintain that the total settlement was for $82,500. They both deny that a larger amount was offered to settle the action.

(e) The meeting on February 28, 2014

[26] A meeting was arranged between Mr. Khan and Mr. Krylov for February 28, 2014 at 2:30 p.m. According to Mr. Khan, he was not told the specific reason for the meeting, he was simply advised that there was “some improvement” in his case.

[27] Mr. Khan, along with his wife, attended at the offices of Krylov & Company on the afternoon of February 28, 2014. They initially met with Mr. Krylov. Their meeting did not go well.

[28] Mr. Krylov deposes that he told Mr. Khan about the offer to settle, for $82,500, and explained that after the firm’s fees and disbursements, this would result in Mr. Khan receiving $58,000. During cross-examination, Mr. Krylov also testified that he explained the final release to Mr. Khan.

[29] In his affidavit, Mr. Krylov deposes that Mr. Khan “did not want to accept the settlement.” During cross-examination, Mr. Krylov explained that they “were not communicating well” and that he felt he was not explaining the release to Mr. Khan in a way that “was satisfactory” to Mr. Khan and his wife. At this point, Mr. Krylov decided to have Mr. Lebkowski speak with Mr. Khan and his wife.

[30] Mr. Khan’s account of his meeting with Mr. Krylov is somewhat different. According to Mr. Khan, he was concerned that the amount of the proposed settlement did not appear to include funds for income replacement, something he believed Mr. Krylov had promised him during their initial meeting. Mr. Khan claims that Mr. Krylov asked him to sign a Settlement Authorization, telling him that the actual settlement would be higher and that he needed to sign the document to “move the case forward.”

[31] According to Mr. Khan, he knew there would also be a final release document. He maintains that he wanted to see that document, as he knew that unlike the Settlement Authorization, prepared by Krylov & Company, the final release document would have been prepared by opposing counsel. As a result, Mr. Khan claims he insisted that Mr. Krylov show him the final release document. He maintains that this infuriated Mr. Krylov, who angrily yelled at him, snatched some documents from his hand, opened his office door and told him and his wife to get out of his office.

[32] Mr. Khan and his wife then met with Mr. Lebkowski. According to Mr. Lebkowski, their meeting lasted about two hours (his recollection appears to be based on the time he docketed for the meeting). During this meeting, Mr. Lebkowski maintains that he discussed the offer to settle with Mr. Khan and his wife. This included discussing various aspects of Mr. Khan’s claim, as well as the risks of declining the offer and proceeding with the litigation. According to Mr. Lebkowski, he recommended to Mr. Khan that he accept the offer but told him the decision was his to make.

[33] It is Mr. Lebkowski’s evidence that during this meeting Mr. Khan eventually signed two documents. The first, a Settlement Authorization, and the second, two copies of a Final Release and Direction. According to Mr. Lebkowski, each document made clear that $82,500 would be received for damages and interest, costs and disbursements, and that these funds would be paid in full and final settlement of Mr. Khan’s personal injury tort action. The Settlement Authorization also explained that Mr. Khan would receive net proceeds from the settlement of approximately $58,139.77.

[34] During cross-examination, Mr. Lebkowski testified that the Final Release and Direction was prepared by counsel from DSF. It was provided to Krylov & Company in anticipation of their meeting with Mr. Khan. Mr. Lebkowski’s evidence is that he had Mr. Khan sign two copies of this document in his presence, one for Krylov & Company’s file and the second to be sent to opposing counsel, initially by fax, with the original to follow by courier.

[35] Mr. Khan denies ever signing the Final Release and Direction. He maintains that even though he never signed it, he knew that such a document must have existed and asked that Mr. Lebkowski show it to him, just like he asked Mr. Krylov. It is Mr. Khan’s evidence that Mr. Lebkowski told him that he would provide him with a copy of the Final Release and Direction after he signed the Settlement Authorization.

[36] According to Mr. Khan, he signed the Settlement Authorization because he trusted Mr. Lebkowski and believed his assurance that after doing so, he would be permitted to see the Final Release and Direction. Mr. Khan claims that he was not given any legal advice before signing the Settlement Authorization, nor was he offered the opportunity to seek independent legal advice.

[37] Beyond signing the Settlement Authorization, Mr. Khan maintains that Mr. Lebkowski also had him initial and sign a few blank pieces of paper. He says that when he questioned this request, Mr. Lebkowski told him that he “needed those papers.”

[38] Mr. Khan claims that after he signed the Settlement Authorization and initialled and signed the blank sheets of paper, Mr. Lebkowski stepped out of the office. When Mr. Lebkowski returned, he did not have a copy of the Final Release and Direction. Mr. Khan insists that he questioned Mr. Lebkowski about this but was told the document would not be available for another hour. However, Mr. Lebkowski assured him that he would be given a copy of the Final Release and Direction when he returned to pick up his cheque. With this, Mr. Khan and his wife left the office of Krylov & Company.

[39] The length of the meeting on February 28, 2014 is also in dispute. Although Mr. Lebkwoski testified that his own meeting with the Khans lasted two hours, Mr. Khan maintains that he did not remain at the office for more than an hour. In support of this claim, Mr. Khan has filed a parking receipt from that day, for one-hour of pre-paid parking, commencing at 2:42 p.m. and expiring at 3:42 p.m.

(f) The Settlement Authorization

[40] It is agreed by the parties that on February 28, 2014, Mr. Khan signed a Settlement Authorization. The original of this document was filed on the hearing of the motion by counsel for Krylov & Company (see Exhibit 1). The text of this document, written entirely in capital letters, provides as follows:

I HEREBY AUTHORIZE MY SOLICITORS, KRYLOV & COMPANY, TO ACCEPT THE AMOUNT OF $82,500.00 FOR DAMAGES AND INTEREST, COSTS AND DISBURSEMENTS, IN FULL AND FINAL SETTLEMENT OF MY TORT CLAIM AND CORRESPONDING FAMILY LAW ACT CLAIMS ARISING FROM MY MOTOR VEHICLE ACCIDENT OF OCTOBER 3, 2010. I UNDERSTAND THAT MY NET PROCEEDS FROM THIS SETTLEMENT WILL BE APPROXIMATELY $58,139.77. I UNDERSTAND THAT MY CASE MAY BE WORTH MORE MONEY, BUT I DIRECT YOU TO ACCEPT THIS SETTLEMENT NONETHELESS. I HAVE HAD THE OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE, WHICH I HAVE DECLINED.

AND FOR SO DOING LET THIS BE YOUR GOOD AND SUFFICIENT AUTHORITY.

[41] During cross-examination, Mr. Khan readily acknowledged signing the Settlement Authorization when he met with Mr. Lebkowski. He maintains that he did so because he was told by Mr. Krylov that it was necessary, “mainly to move the matter forward.” Further, he insists that he only did so because he was assured that he would also be provided with a copy of the Final Release and Direction.

(g) The Final Release and Direction

[42] At 4:36 p.m. on February 28, 2014, Mr. Lebkowski sent a four-page fax to Ms. Herszkowicz. It included a fax cover sheet, a covering letter, and a two-page document entitled Final Release and Direction. This correspondence, with enclosures, forms part of the record on this motion. [1] After it was faxed, the original correspondence, including an original copy of the signed Final Release and Direction, was couriered to Ms. Herszkowicz at DSF.

[43] The first page of the Final Release and Direction is initialed “ZK”, the second page contains what appears to be Mr. Khan’s signature. Mr. Lebkowski maintains that Mr. Khan signed two copies of this document in his presence. In contrast, Mr. Khan denies ever signing such a document.

[44] On the hearing of the motion, given that the bona fides of the Final Release and Direction is at issue, counsel for the defendants produced what they assert are the original documents. Both the Settlement Authorization and the Final Release and Direction from Krylov & Company’s file were collectively marked as Exhibit 1 on the motion. The Final Release and Direction provided by DSF to TD Insurance was marked as Exhibit 2.

[45] I have carefully examined all three documents. It is readily apparent that the two versions of the Final Release and Direction are not merely copies of the same document. Although the printed text is identical, the positioning of the initials on the bottom right of the first page of both versions is slightly different, as is the size of the initials. Further, the positioning of the handwriting on the second page, including where the date has been written in, Mr. Lebkowski’s signatures, and the signatures on the two documents attributed to Mr. Khan, are all positioned slightly differently as between the two documents. It is also apparent to me, as a layperson, that the signature that Mr. Khan acknowledges being his on the Settlement Authorization is similar in appearance to the signatures attributed to him on both of the documents entitled Final Release and Direction.

[46] There is no evidence before the court from a handwriting or document expert to suggest that any of these documents are forgeries. However, Mr. Khan’s theory of the case is not prefaced on his signature being forged on either of the two Final Release and Direction documents. Rather, the clear implication of his evidence is that these documents were somehow forged using the blank pieces of paper that he initialled and signed at Mr. Lebkwoski’s request. (An allegation that is completely at odds with Mr. Lebkowski’s evidence that he personally witnessed Mr. Khan sign two copies of the Final Release and Direction).

(h) TD Insurance forwards the settlement funds

[47] In her affidavit, Ms. Herszkowicz deposes that, after receiving authorization from TD Insurance, she negotiated a settlement of Mr. Khan’s tort action with Mr. Lebkowski. She maintains that the amount agreed on to settle the action was $82,500 all inclusive.

[48] On March 25, 2014, after an original of the signed Final Release and Direction had been received, Ms. Herszkowicz sent Mr. Lebkowski a letter, enclosing a cheque, dated March 20, 2014, in the amount of $82,500 and payable to Krylov & Company in trust. The cheque was issued by TD Insurance, from an account with the TD Bank. A copy of the cheque forms a part of the record on this motion.

(i) Mr. Khan picks up his share of the settlement funds

[49] On March 31, 2014, Mr. Khan attended at Krylov & Company’s office to pick up the proceeds of the settlement. He was provided with a reporting letter (dated April 1, 2014), a copy of the firm’s account, and a cheque drawn from the firm’s trust account in the amount of $58,137.95. The reporting letter made clear that “we have settled your tort claim in the amount of $82,500.00” and referenced the enclosed cheque payable to Mr. Khan in the amount of $58,137.95.

[50] Mr. Khan acknowledges picking up the reporting letter and the cheque. It is not disputed that he cashed the cheque. During cross-examination, Mr. Khan conceded that when he picked up the cheque from Krylov & Company he understood it represented the money he would be receiving to settle his tort claim.

[51] Mr. Khan’s evidence is that when he picked up the cheque he again met with Mr. Lebkowski and asked for a copy of the Final Release and Direction. According to Mr. Khan, Mr. Lebkwoski refused to provide him with a copy and also denied ever promising that he would do so. In response, Mr. Khan asked for his file. He reports being told by Mr. Lebkowski that the firm was required by law to hold onto the file for six years. However, Mr. Khan claims that Mr. Lebkowski promised to make him a photocopy of the file and contact him when it was ready for pick-up.

(j) The evidence from TD Insurance

[52] Lori Percy is employed as a Team Manager with TD Insurance. Ms. Percy confirms that TD Insurance’s records reflect that the personal injury tort action brought by Mr. Khan settled for $82,500. She also confirms that in March 2014, after receiving a copy of an executed Final Release and Direction from Ms. Herszkowicz, TD Insurance issued a cheque payable to “Krylov & Company in trust” in the amount of $82,500. According to TD Insurance’s records, these funds were paid in full and final settlement of Mr. Khan’s claim. The cheque was forwarded to DSF after it was issued. Finally, Ms. Percy confirms that no other settlement funds were paid by TD Insurance in relation to Mr. Khan’s claim.

(k) The genesis of Mr. Khan’s Claim

[53] In the period following the settlement of the action, Mr. Khan sought a copy of the final release relating to the settlement from Krylov & Company. Similarly, he continued to ask Krylov & Company for a copy of his file. Mr. Khan claims that despite contacting Krylov & Company on a number of occasions to reiterate these requests, by August 2014 he was still waiting.

[54] Over time, Mr. Khan became increasingly frustrated by the failure of Krylov & Company to provide him with either a copy the final release or his file. On August 26, 2014, Mr. Khan filed a Law Society complaint against Mr. Krylov. In the complaint, Mr. Khan made a number of allegations. First, he asserted that Mr. Krylov originally told him that his claim was worth between $320,000.00 and $350,000.00. He also complained that Krylov & Company did not provide him with either a copy of the final release or a copy of his complete file. Given all of this, Mr. Khan indicated in his complaint that he believed the actual amount of the settlement was larger than what Mr. Krylov told him. He made clear that he wanted whatever the difference was between the true amount of the settlement and what he was paid.

[55] In April 2015, Mr. Khan hired a lawyer to assist him in verifying the true amount of the settlement of his tort action. That lawyer wrote DSF in July 2015, seeking copies of the settlement documents from them. On July 22, 2015, DSF provided a copy of the executed Final Release and Direction to Mr. Khan’s lawyer.

[56] The version of the Final Release and Direction that DSF sent to Mr. Khan’s new lawyer was the faxed copy received by DSF on February 28, 2014. By that point DSF had already sent on the original, that it had received by courier from Krylov & Company, to TD Insurance. As a result, the copy provided to Mr. Khan included the date and time stamp from the fax machine at the top of each page, “Feb. 28. 2014 4:36PM Krylov & Co. Barristers”.

[57] On February 12, 2016, Mr. Khan issued the statement of claim in this action. In it, he asserted his belief that the “actual settlement was higher than the alleged $82,500.00 and in the $800,000.00 range as the associate from Krylov assured him of same.” He also asserted his belief that, “both defendants received a larger compensation but misappropriated the funds and provided a smaller settlement to Khan.”

[58] It would appear that Mr. Khan filed a supplementary complaint with the Law Society on February 26, 2016. In it, he apparently alleged, as he does in his statement of claim, that he believed the action was settled for more than $82,500, and for an actual amount in the range of $800,000. He explained this belief as being based on Richard Lebkowski telling him that this was the actual amount of the settlement.

[59] It deserves mention that on this motion Mr. Khan has not provided any evidence that Mr. Lebkowski represented the amount of the settlement as being in the range of $800,000. In their affidavits both Mr. Krylov and Mr. Lebkowski deny the allegation found in the statement of claim that they ever told Mr. Khan that the settlement was for $800,000.

III. Is This An Appropriate Case for Summary Judgment?

[60] Mr. Khan represents himself in this action. Given that self-represented litigants are often unfamiliar with the litigation process, fairness requires a judge to provide assistance to them so that they are able to present their case to the best of their ability. At the same time, any accommodation provided to a self-represented litigant must respect the rights of the other parties to the litigation. See Sanzone v. Schechter, 2016 ONCA 566, 267 A.C.W.S. (3d) 830, at paras. 21-22 [Sanzone].

[61] Although a self-represented litigant may require assistance, their lack of experience before the court does not alter the need to adhere to the law’s requirements. As the Court of Appeal explains: “[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.” Sanzone, at para. 22. It obviously follows that the standard for assessing a motion for summary judgment remains the same even when one of the litigants is self-represented.

[62] In deciding whether or not this is an appropriate case for summary judgment, the court must first determine if there is a genuine issue requiring a trial. This assessment is made on the basis of the pleadings and the evidence on the motion. See Lameman, supra, at para. 19.

[63] In his statement of claim, Mr. Khan pleads that the personal injury tort action settled for a sum greater than $82,500. Further, he pleads that lawyers from Krylov & Company and DSF conspired together to conceal from him the true amount paid by TD Insurance to settle the claim and then misappropriated the difference between what the insurer actually paid and what he ultimately received. Mr. Khan is essentially pleading the torts of fraud (see Bruno Appliances, supra, at para. 21) and conspiracy (see Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at pp. 984–986).

[64] At this point, it is sensible to mention what Mr. Khan has not pleaded in his statement of claim. Importantly, Mr. Khan has not pleaded that the lawyers from Krylov & Company were negligent in advising him to settle the action for $82,500. See Salman v. Ipacs, 2018 ONSC 4803, at paras. 27-30. Although Mr. Khan undoubtedly believes that his personal injury tort claim entitled him to more money than he received, he has not put forward any evidence capable of establishing that the settlement was improvident.

[65] It is also noteworthy that Mr. Khan has not pleaded that the agreement to settle the tort action should be set aside either because it resulted from duress (see Ramdial v. Davis, 2015 ONCA 726, at para. 42; Stott v. Merit Investment Corp. (1988), 63 O.R. (3d) 545 at 561-562 (C.A.), at pp. 561-562, leave to appeal to CCC refused, [1988] S.C.C.A. No. 185), or because he was mistaken regarding its effect (see S.M. Waddams, The Law of Contracts, 6th ed. (Canada Law Book: Toronto, 2010) at pp. 286-288).

[66] To be sure, there are aspects of Mr. Khan’s evidence that, if accepted, might provide him with a footing to set aside the settlement. For example, with respect to mistake, his evidence that he only signed the Settlement Authorization because Mr. Krylov told him the actual settlement would be higher and that he needed to sign the document to “move the case forward.”

[67] Of course, any effort to set aside the settlement would run up against Mr. Khan’s admission that he signed the Settlement Authorization, which made crystal clear that in return for the monies being paid he was agreeing to a “final settlement” of his tort claim. Such an effort would also need to somehow overcome Mr. Khan’s admission that when he picked up the settlement cheque (which he then proceeded to cash), he understood that the amount he would be receiving to settle his tort claim was $58,000.

[68] In any event, the potential claims that Mr. Khan might have advanced are of no moment on this motion for summary judgment. The question is not whether some potential claim could have been pleaded, but whether there is a genuine issue requiring a trial in light of the actual pleadings and the evidence on this motion.

[69] In this case, Mr. Khan has pleaded the torts of fraud and conspiracy. The defendants have understandably responded to these specific pleadings in their respective statements of defence. Their motion for summary judgment rightly takes aim at the serious allegations levelled by Mr. Khan in his statement of claim. The defendants argue that Mr. Khan has failed to put forward any evidence capable of supporting his claim. Therefore, they contend that there is no genuine issue requiring a trial, and that this action should be decided in their favour by way of summary judgment.

[70] In their materials, the defendants have filed a substantial body of evidence capable of supporting a finding that the total value of the settlement was $82,500.00. The evidence of Ms. Percy, the representative from TD Insurance, is clear, the insurer paid $82,500 to settle Mr. Khan’s claim. This evidence is supported by a copy of the actual cheque, in the amount of $82,500, issued by TD Insurance.

[71] The evidence of Ms. Herszkowicz establishes that the cheque issued by TD Insurance was received by DSF, who then forwarded it on to Krylov & Company. According to the evidence of Mr. Lebkowski and Mr. Krylov, it was from these funds that Krylov & Company deducted its fees and disbursements, and then paid the balance to Mr. Khan. All of this was exactly in accordance with the terms of the Settlement Authorization that Mr. Khan acknowledges signing.

[72] In his responding materials, Mr. Khan has failed to put forward any evidence that is logically capable of supporting a conclusion that the action settled for some greater amount or that some portion of the settlement funds were misappropriated by Krylov & Company or DSF. His case is prefaced on his entirely unsubstantiated belief that there was more money paid and that the lawyers cheated him. Unfortunately for Mr. Khan, his beliefs are not evidence.

[73] The only evidence Mr. Khan relies on to support his claim is his testimony that he never signed the Final Release and Direction. However, even if his unsubstantiated evidence were credited, thereby supporting a conclusion that this document was somehow forged by someone at Krylov & Company, it would be a formidable leap in logic to then infer that the actual amount paid by TD Insurance to settle the action was some larger sum.

[74] In all of the circumstances, I am satisfied that there is no genuine issue requiring a trial in this case. In coming to that conclusion, I am satisfied the summary judgment process has furnished the court with the evidence required to fairly and justly adjudicate Mr. Khan’s claim. I am also satisfied that summary judgment provides the most timely, affordable and proportionate procedure for deciding this dispute.

[75] Given the absence of evidence to support Mr. Khan’s claim, it would not be in the interests of any of the parties to further delay the determination of this case. Delay would only occasion additional inconvenience and expense for everyone involved. There is no evidentiary foundation for the torts of fraud and conspiracy pleaded by Mr. Khan. In these circumstances, summary judgment is the far more proportionate means of adjudicating this action. It is apparent from the record on the motion for summary judgment that a trial of this action is not justified.

[76] Finally, given the absence of evidence logically capable of supporting Mr. Khan’s pleadings of fraud and conspiracy, I think it is unnecessary for the court to make use of the fact-finding powers in Rule 20.04(2.1). However, for the sake of completeness, assuming Mr. Khan’s evidence that he never signed the final release provides some logical footing from which to infer that the actual amount of the settlement was greater than $82,500.00, I will briefly assess that claim against the balance of the evidence filed on the motion.

[77] Mr. Khan’s position that both of the Final Release and Direction documents were forged by someone at Krylov & Company is prefaced entirely on his evidence that he never signed these documents, as well as his evidence that he initialled and signed some blank sheets of paper at Mr. Lebkowski’s request. Although he argues that both of these documents are obvious forgeries, I have closely examined them and neither appears to be irregular in any way.

[78] Importantly, Mr. Khan has not supplemented his theory with expert evidence, for example, from someone qualified to forensically examine these two documents. At least in some places on these documents the text clearly generated by a printer and the handwriting found on the documents appears to overlap. An expert could potentially address the important question of sequencing; whether the ink from the printer writes over the ink from the pen, or whether the reverse is true. Without such evidence, the strength of Mr. Khan’s claim that he did not sign these documents depends on his word alone.

[79] Beyond his own evidence, Mr. Khan argues that circumstantial evidence bolsters his claim that he never signed the Final Release and Direction. Mr. Khan places great emphasis on the date and time stamp that appears on a copy of the Final Release and Direction that was apparently faxed. At the top of both pages of this document one finds the following mechanically printed entry: “Feb. 28. 2014 4:36PM Krylov & Co. Barristers”. Common sense supports a conclusion that this information was imprinted by a fax machine.

[80] Mr. Khan reads the date and time stamp as evidencing that the Final Release and Direction was faxed to Krylov & Company at 4:36 p.m. on February 28, 2014. He relies on his evidence that he left Krylov & Company’s office well before 4:36 p.m., along with the pre-paid parking receipt that shows his parking expired at 3:42 p.m., to corroborate his claim that he did not sign the Final Release and Direction. After all, if he left the office by 3:42 p.m., he could not possibly have signed the Final Release and Direction that was only received by Krylov & Company at 4:36 p.m.

[81] Mr. Khan’s submission is based on a mistaken understanding of the evidence relating to the date and time stamp on the faxed copy of the Final Release and Direction. The evidence is that Mr. Lebkowski faxed the signed Final Release and Direction to Ms. Herszkowicz at DSF on February 28, 2014 at 4:36 p.m. [2] The date and time stamp reflect when DSF received a faxed copy of the signed Final Release and Direction from Krylov & Company, not when DSF sent the unsigned document to Krylov & Company.

[82] It will be remembered that it was this very same faxed version of the document that DSF provided to Mr. Khan’s lawyer on July 22, 2015. This is because, by that point, the original that DSF received by courier from Krylov & Company had been forwarded on to TD Insurance. Significantly, neither of the two originals of the Final Release and Direction, the one retrieved from the file of Kryolv & Company (Exhibit 1 on the motion) nor the one retrieved from the file of TD Insurance (Exhibit 2 on the motion), contain a fax date and time stamp.

[83] In short, Mr. Khan’s argument that the date and time stamp at the top of the faxed copy of the Final Release and Direction somehow furnishes evidence that he never signed that document is without merit. In the end, Mr. Khan’s claim that the final releases are not genuine depends entirely on his evidence, standing alone, that he never signed these documents. Ultimately, Mr. Khan’s evidence is incapable of displacing the weight of the evidence on the motion, which is far more directly linked to the substance of the allegations of fraud and conspiracy.

[84] The balance of the evidence on the motion overwhelmingly establishes that Mr. Khan’s action settled for $82,500.00. Critically, TD Insurance has no apparent motive to conceal the amount it paid to settle Mr. Khan’s claim. Quite the opposite, if Mr. Khan’s allegations were true, TD Insurance would have every reason to join Mr. Khan in seeking recourse against DSF and Krylov & Company. In such a scenario, TD Insurance would be a victim of the very same fraud and conspiracy alleged by Mr. Khan. The fact that TD Insurance has confirmed that the total amount paid to settle the claim was $82,500.00, which is substantiated by a copy of the cheque in that amount issued by TD Insurance and made payable to Krylov & Company in trust, is simply fatal to Mr. Khan’s claim.

Conclusion

[85] For all of these reasons, summary judgment is granted in favour of the defendants.

[86] In closing, I would be remiss if I failed to mention that I am troubled by the allegation in Mr. Khan’s materials that his repeated requests for a copy of his file and the Full and Final Release document went unanswered by Krylov & Company. (At the time there was clearly no outstanding account, the firm’s fees and disbursements having been fully paid from the settlement proceeds.) The fulfillment of such routine requests should not require the intervention of the Law Society or the involvement of another lawyer.

[87] There is no evidentiary foundation for Mr. Khan’s allegations of fraud and conspiracy. Nevertheless, it is not difficult to imagine how a lawyer’s former client, especially if the relationship ends on a sour note, could begin to draw somewhat paranoid conclusions about the lawyer’s motives or conduct if the lawyer fails to respond to repeated requests for a copy of the client’s file or an important document from the file.

[88] In its materials on the motion, Krylov & Company did not respond to this aspect of Mr. Khan’s allegations. Given this, I have refrained from drawing any conclusions as to whether or not the firm failed to provide Mr. Khan with the materials he was seeking and whether or not this may have contributed to the commencement of this action. It would be sensible for both Krylov & Company and Mr. Khan to address these questions should costs submissions be necessary.

[89] Should costs be in issue, written submissions may be submitted. The defendants may each submit no more than five-pages of submissions (not inclusive of their respective Bills of Costs or any other supporting materials) to be served and filed by no later than March 29, 2019. Mr. Khan may serve and file responding submissions, also no longer than five pages (not inclusive of any supporting materials), by no later than April 12, 2019. Reply submissions should only be filed if requested by the court.

Justice James Stribopoulos

Released: March 15, 2019