COURT FILE NO.: CV-14-495804 DATE: 20190724

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Themistocles Kyriakopoulos Plaintiff – and – Gregory Lafontaine Defendant

Counsel: Self-represented, In Person (Also in attendance and assisted by Milena, a.k.a. Melanie, Kyriakopoulos [1]) Sean Dewart and Brett Hughes, for the Defendant

Heard: Appearances on March 11, 12, 13, 14 and 22, 2019

KIMMEL J.

Table of Contents

The Issues to be Decided . 2 Analysis . 2 A. Is the action statute barred? . 2 The Parties’ Positions on the Plaintiff’s Actual or Imputed Knowledge of the Alleged Negligence 3 The November 22, 2009 meeting . 4 The Plaintiff’s November/December 2009 Reflections and Request for the Appeal Factum and File 5 The Plaintiff’s Dealings with Other Legal Advisors and Ongoing Efforts to Re-Open . 6 the Appeal 6 July 2011 Communications . 6 Plaintiff’s “Discovery” of the November 10, 2009 Appeal Book Endorsement 7 The Plaintiff’s Complaint to the Law Society and Plea to the Minister of Justice . 7 Analysis and Conclusions on Limitations Defence . 8 B. Can a finding of solicitor’s negligence be made in the absence of any expert evidence regarding the standard of care? . 9 The Plaintiff’s First Adjournment Request - To Retain an Expert on Standard of Care . 9 The Plaintiff’s Second Adjournment Request – Unavailability of Intended Standard of Care Expert 10 The Plaintiff’s Third Adjournment Request (withdrawn) – Disqualification of Plaintiff’s Expert 10 Is Expert Testimony Required to Establish Professional Negligence? . 12 C. Did the defendant’s conduct of the Appeal fall below the standard expected of a reasonably competent criminal appellate counsel? . 13 What is the Standard of Care? . 14 Did the Defendant’s Conduct Fall Below the Expected Standard of Care? . 17 (i) Did the defendant’s oral argument on the Appeal concerning the findings of the trial judge fall below the standard of care? . 17 (a) Challenging the Trial Judge’s findings about the plaintiff’s expectation of privacy . 18 (b) Challenging the Trial Judge’s findings about forcible entry into the plaintiff’s storage locker 19 (ii) Did the defendant’s decision not to address all points included in the factum during oral argument of the Appeal fall below the standard of care? . 21 (iii) Did the defendant’s decision not to refer in oral argument on the Appeal to the sentence appeal that was raised in the appellant’s factum fall below the standard of care? . 22 (iv) Did the defendant’s decision not to file a reply or supplementary factum after the Supreme Court of Canada released its decision in R. v. Grant and related decisions on July 17, 2009 and his conduct of oral argument about the Grant case fall below the standard of care? . 22 (v) Did the defendant fall below the standard of care by not “winning” the Appeal? . 24 (vi) Did the standard of care require the defendant to include ineffective assistance of trial counsel as a ground for appeal? . 25 (vii) Did the manner in which the defendant reported to and communicated with the plaintiff and his family members fall below the standard of care? . 27 D. Has the plaintiff established on a balance of probabilities that he would have been acquitted but for the defendant’s negligence? . 28 E. Has the plaintiff proven that he suffered any special, general or punitive damages as a result of the alleged negligence? . 28 F. Is this action an abuse of process? . 29 Disposition and Costs . 30

REASONS FOR Decision

[1] Mr. Kyriakopoulos represented himself at this trial of claims he makes against his former lawyer, Gregory Lafontaine, for professional negligence.

[2] Mr. Kyriakopoulos was convicted in January of 2008 of three counts of possession of cocaine for purposes of trafficking (involving 12.74 grams found in his pocket, 501.86 grams found in a duffle bag in his storage locker and 4.53 grams found in his vehicle parked outside the storage locker facility, all on January 19, 2005). He later was sentenced to six years in the penitentiary.

[3] The defendant was retained as appeal counsel for Mr. Kyriakopoulos after his conviction in 2008. With the assistance of the defendant, the plaintiff was granted bail pending the appeal. While out on bail, the plaintiff pleaded guilty, without consulting the defendant, to an unrelated offence of bribing a police officer based on advice from the lawyer who had represented him at his preliminary inquiry and this resulted in the plaintiff’s bail pending appeal being revoked. The appeal was heard and dismissed by Doherty, Cronk and Watt JJ.A. of the Court of Appeal for Ontario on November 10, 2009 (the “Appeal”). Mr. Kyriakopoulos served two years of his six-year sentence and was released on early parole in November of 2011.

[4] In January of 2014 Mr. Kyriakopoulos commenced this action in which he claims $1 million in each of special, general and punitive damages for the alleged professional negligence of the defendant in the handling of the Appeal.

[5] An important issue on the Appeal was whether the seized evidence (drugs found in the possession of Mr. Kyriakopoulos) should have been excluded under s. 24(2) of the Canadian Charter of Rights and Freedoms because of the finding of the trial judge that there had been an unlawful search of the plaintiff’s storage locker in breach of s. 8 of the Charter prior to his arrest. The plaintiff also appealed his six-year sentence, hoping to receive compassion from the Court of Appeal and a reduced sentence due to his degenerative medical condition.

[6] Mr. Kyriakopoulos formed the view that, because the trial judge had found his Charter rights had been breached, his Appeal was a “winner”. However, the Court of Appeal found otherwise. It was apparent from his testimony and submissions during the trial that Mr. Kyriakopoulos has difficulty reconciling the finding at his criminal trial that the police had conducted a search of his storage locker without reasonable and probable grounds in violation of his s. 8 Charter rights, with his conviction for the drugs that were found on him and in his storage locker and in his car incidental to an arrest that followed the s. 8 Charter breaches. Mr. Kyriakopoulos contends that he must have been inadequately represented on the Appeal for his conviction and jail sentence to have been upheld. He also contends that he was inadequately represented at the trial and that this was one of the points that should have been made by the defendant on the Appeal, but it was not.

[7] Despite his views and the many arguments that the plaintiff presented at trial, he has failed to establish, on a civil standard of a balance of probabilities, that the defendant fell below an established standard of care in the handling of the Appeal. Nor has the plaintiff proven, or attempted to prove through admissible evidence, any damages that he suffered as a result of the alleged deficiencies in the defendant’s handling of the Appeal. The plaintiff’s failure to prove his claims is secondary, however, to my finding that this action is statute barred under the Limitations Act, 2002, S.O. 2002, c. 24.

[8] For the reasons that follow, the plaintiff’s action is dismissed.

The Issues to be Decided

[9] The following issues arise in this action:

a. Is the action barred by virtue of the Limitations Act in that it was commenced more than two years after the plaintiff knew or ought reasonably to have known of the alleged acts or omissions said to constitute the defendant’s negligence in his handling of the Appeal?

(if not, or in the alternative):

b. Can a finding of solicitor’s negligence be made in the absence of any expert evidence regarding the standard of care of criminal appellate counsel?

(if so):

c. Has the plaintiff proven that the defendant’s conduct of the Appeal fell below the standard expected of a reasonably competent criminal appellate counsel?

(if so):

d. Has the plaintiff proven that he would have been acquitted (or a new trial ordered) but for the alleged negligence of the defendant?

e. Has the plaintiff proven that he suffered any special, general or punitive damages as a result?

f. Is this action an abuse of process?

Analysis

[10] I address each issue in turn.

A. Is the action statute barred?

[11] Section 4 of the Limitations Act proscribes the commencement of an action after the second anniversary of the discovery of the claim. Section 5(1) of the Limitations Act establishes that 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 (which matters are presumed by virtue of section 5(2) to have been known on the day the act or omission occurred unless the contrary is proved),

ii. that the injury, loss of 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).

[12] The defendant points to appellate authority that makes it clear that the plaintiff had an obligation to take some action to investigate the matters referred to in s. 5(1)(a), and specifically to “act with due diligence in acquiring facts in order to be fully apprised of the material facts upon which a negligence or malpractice claim can be based”: see Longo v. MacLaren Art Centre Inc., 2014 ONCA 526, 323 O.A.C. 246, at paras. 41, 42 and 44, quoting from Soper v. Southcott (1998), 111 O.A.C. 339 (C.A.), at p. 345.

[13] The plaintiff has the evidentiary burden to prove that this claim was issued within the limitation period. On its face, it was not. It was issued on January 3, 2014, which is well in excess of two years after November 10, 2009 when the Appeal was argued and dismissed. The plaintiff must not only satisfy the subjective test (that he did not actually know of the matters referred to in s. 5(1)(a) of the Limitations Act until less than two years before January 3, 2014), but must also establish that he exercised reasonable diligence in the efforts he made to discover the material facts upon which the alleged negligence is based: see Panther Film Services Inc. v. Fred Tayar and Associates Professional Corporation, 2012 ONSC 7226, at paras. 19-22, affirmed, 2013 ONCA 399.

[14] The alleged negligence stems from the manner in which the defendant handled the Appeal. The plaintiff contends that certain steps should have been taken, or points should have been made, but were not, and that certain points or concessions were made that undercut the Appeal.

The Parties’ Positions on the Plaintiff’s Actual or Imputed Knowledge of the Alleged Negligence

[15] The extent of the plaintiff’s knowledge about the defendant’s handling of the Appeal, and what the plaintiff knew or ought to have known as of January 2012 (two years before the commencement of this action) is a question of fact. This is a fact-driven determination that must be decided based on the particular circumstances of each case: Panther Film Services, at para. 19.

[16] The plaintiff was incarcerated and did not attend the Appeal on November 10, 2009. His wife testified that she had planned to attend but understood from a conversation that she had with the defendant, or someone from his office, that proceedings were not open to the public or family members. Although the defendant denies that Mrs. Kyriakopoulos was told this (and testified to the contrary, that his practice was and is to encourage family members to attend in court), for purposes of the limitations analysis it is common ground that no one from the plaintiff’s family attended the Appeal.

[17] The plaintiff testified that he only discovered or realized that he had a claim against the defendant after receiving and listening to the recording of the Appeal proceedings. He believes that he requested and received this recording from the Court of Appeal in or about February or March of 2012, after the plaintiff’s criminal trial counsel (Mr. Olmstead, now deceased) called him and told him that the Court of Appeal’s endorsement from the November 10, 2009 hearing indicated that the oral argument made by the defendant at the Appeal did not entirely correspond with the written submissions contained in the Appeal factum.

[18] The plaintiff’s wife testified to the same effect, that this advice from Mr. Olmstead had been received on the speaker phone in her presence sometime in February of 2012, and that it was only after hearing this and obtaining a copy of the Court of Appeal’s endorsement online and subsequently requesting from the Court of Appeal the recording of the Appeal proceeding, that they appreciated that the oral submissions made on the Appeal had not followed the written factum.

[19] The defendant points to various other evidence that supports a finding that the plaintiff knew or ought reasonably to have known well before February of 2012 about the facts upon which the alleged negligence in this action is based (concerning how the defendant conducted the Appeal on November 10, 2009) - as early as November of 2009 and at least by July of 2011. The chronology of events that the defendant relies upon begins with a meeting that took place on November 22, 2009.

The November 22, 2009 meeting

[20] There was a meeting attended by the defendant, one of his associates, Mrs. Kyriakopoulos and the plaintiff’s parents and brother on November 22, 2009, approximately two weeks after the Appeal. Contemporaneous notes taken at this meeting by the defendant’s associate (the “Notes”) reflect that:

a. There was a detailed discussion that included an explanation of why the Court of Appeal had not written about the s. 8 Charter breach in its endorsement (the explanation being that, for purposes of their decision, they had assumed that there was a s. 8 breach);

b. It was explained that the defendant had not abandoned the factum, but argued a different way, in part because there were three new cases out of the Supreme Court of Canada that directly addressed the s. 24(2) Charter issue;

c. It was explained that appeals are about errors of law; they are not about a new trial;

d. It was explained that arguing the sentence appeal as planned would have backfired because the Court of Appeal would have to be advised that the plaintiff had breached his bail conditions and was incarcerated at the time of the Appeal for bribing a police officer; so the defendant decided that it was better to leave the Court of Appeal with the Appeal factum for the arguments in support of the sentence appeal in order to avoid having to deal directly with the reasons for the plaintiff’s incarceration;

e. The defendant advised against seeking leave to appeal to the Supreme Court of Canada and advised that the plaintiff’s medical condition should be raised with the prison/jail officials (the defendant elaborated in his testimony that this would be in the context of seeking leniency and possible early parole); and

f. The defendant disagreed with the suggestion that the Appeal was supposed to be “easy breezy”.

[21] The defendant testified to his independent recollection of this meeting and the substance of the points noted above having been discussed.

[22] The plaintiff was supposed to dial into this meeting by phone but did not. Mrs. Kyriakopoulos testified that she attempted to record this meeting on her phone so that she could play it back to the plaintiff later, but her recording was of bad quality. She did not advise the defendant that she was recording and kept her phone in her purse. Both the plaintiff and his wife testified that they discussed what had transpired at this meeting after it took place.

[23] Mrs. Kyriakopoulos did not dispute or deny that the points reflected in the Notes were discussed. There were a couple of points that she said she did not remember discussing: (i) that the defendant advised her that the argument he made at the Appeal was different than in the factum; and (ii) that the defendant advised her that he did not make arguments at the Appeal about the sentence. However, Mr. Kyriakopoulos testified that his wife had told him after the meeting that the defendant had argued points differently than how they were presented in the factum.

[24] The trial testimony of all three trial witnesses (the plaintiff, his wife and the defendant) either affirmed or was neutral on the accuracy of the Notes concerning the matters discussed at the November 22, 2009 meeting. None of the other attendees at this meeting (the plaintiff’s parents or brother or the defendant’s associate) were called to provide any different evidence or recollections about what was discussed. I find on a balance of probabilities that the matters reflected in the Notes were discussed at the November 22, 2009 meeting and passed on to the plaintiff by his wife after the meeting. The conduct of the plaintiff and his wife following this meeting, detailed below, is consistent with this finding.

The Plaintiff’s November/December 2009 Reflections and Request for the Appeal Factum and File

[25] The plaintiff testified that in November or December of 2009, after the November 22 meeting, he was questioning in his own mind how the defendant could have lost the Appeal. He explained that he started to develop a theory at that time that the defendant had deliberately sabotaged the Appeal in order to get the brief (and a further retainer) to bring an application for leave to the Supreme Court of Canada. The plaintiff testified that, while this theory was developing in his mind, he contacted some other lawyers.

[26] On November 30, 2009, the defendant’s assistant sent him an email reporting that the plaintiff had asked if his wife could pick up the Appeal factum. Mrs. Kyriakopoulos testified that she picked up the Appeal factum shortly afterwards. She also asked at this time for the defendant’s file to be sent to her, and it was. It is not disputed that she received this material, although Mrs. Kyriakopoulos says she did not look at the file until after the discussion with Mr. Olmstead.

The Plaintiff’s Dealings with Other Legal Advisors and Ongoing Efforts to Re-Open the Appeal

[27] On May 7, 2010, the plaintiff contacted one of the defendant’s associates who, in turn, reported to the defendant in an email that same day that the plaintiff had called to discuss the evidence about the police officer “breaking in” to the storage locker by removing the netting/mesh on the ceiling. This email also records that the plaintiff advised that he and his wife had been speaking to a lawyer specializing in prison law about appealing one or both cases (his drug conviction and bribery guilty plea) and about the plaintiff’s eligibility for accelerated parole release in July of 2010.

[28] Shortly after this, on May 18, 2010, the plaintiff’s wife sent an email to the defendant, following up on the previous call, in which she advised that:

a. Mr. and Mrs. Kyriakopoulos had spoken to Mr. Olmstead (who claimed to have been unaware that pleading guilty to the bribery charge would change the plaintiff’s accelerated parole date) and that Mr. Olmstead had misled the plaintiff;

b. the plaintiff was heavily medicated when he agreed to plead guilty; and

c. they had new evidence that the original owner of the bag of drugs found in the plaintiff’s storage locker was willing to tell the truth that the drugs belonged to him and not to the plaintiff.

[29] At trial, Mrs. Kyriakopoulos did not recall this email, but she did not deny sending it. She was not able to identify the alleged original owner of the bag of drugs, despite her acknowledgement of the apparent importance of this to her husband’s case.

July 2011 Communications

[30] The defendant’s assistant reported to the defendant in an email dated July 22, 2011 that the plaintiff had called and indicated that he was very upset with the outcome of his case and how things turned out. He was asking to re-open his case because he felt it was not properly heard at the Court of Appeal and indicated that his parents were going to the Minister of Justice and the Law Society. The email reports that Mr. Kyriakopoulos emphasized that “he wants to work with you to help him resolve this matter”.

[31] The plaintiff testified that he did not know at that time if he had lost the Appeal because of the poor performance or a mistake by his lawyer, but in his view: “What else could it be?” He explained that he wanted the defendant to fix things through a re-hearing or some other process, and that was all he was looking for in this case, not money.

[32] Based on the matters described in the testimony and documents referenced, I find that by no later than July of 2011 the plaintiff had formed the belief that the defendant had not adequately represented him on the Appeal.

Plaintiff’s “Discovery” of the November 10, 2009 Appeal Book Endorsement

[33] The plaintiff and his wife testified that they first saw the Court of Appeal’s endorsement dismissing his appeal in February of 2012 when Mr. Olmstead called them to say he had noticed it when perusing the dockets at the Court of Appeal. They claim that Mr. Olmstead brought to their attention that the endorsement stated that: “The appellant advances a somewhat different argument than those found in the factum.”

[34] Mr. Olmstead is deceased and was not available to testify to his recollection of the timing of this discussion.

[35] I have serious doubts about the evidence of Mr. and Mrs. Kyriakopoulos concerning the timing of their discussion with Mr. Olmstead about the Court of Appeal’s endorsement. They say it was in February of 2012, just less than two years before the action was commenced. Mr. and Mrs. Kyriakopoulos do not offer any logical explanation for why Mr. Olmstead would have been perusing the 2009 endorsements of the Court of Appeal in 2012. It is more likely that this discussion took place, if at all, in the spring of 2010 before the May 10, 2010 email from Mrs. Kyriakopoulos that reported that she and the plaintiff had been speaking to Mr. Olmstead at that time about the guilty plea on the bribery charge and its implications for the Appeal, rather than during some call that is said to have taken place apropos of nothing almost two years later.

[36] Irrespective of when Mr. and Mrs. Kyriakopoulos spoke to Mr. Olmstead about the Court of Appeal’s endorsement, the defendant testified that a copy of that endorsement was in the file that was sent to the plaintiff and his wife shortly after the Appeal. Since that time the plaintiff had, or had access to, the Court of Appeal’s endorsement, which clearly states that the defendant made different arguments during the Appeal than those found in the factum. Further, the Notes of the November 22 meeting indicate that it was discussed that the Appeal had been argued differently than what was in the factum.

[37] I do not accept the plaintiff’s testimony that he only discovered in February of 2012 that the Appeal had been argued differently from the factum. I find that he knew or reasonably ought to have known this by May of 2010.

The Plaintiff’s Complaint to the Law Society and Plea to the Minister of Justice

[38] The plaintiff eventually filed a complaint with the Law Society about the defendant, signed and dated March 26, 2012. A different lawyer (Gregory Hill) assisted him with that. He claims he waited to do so until after getting the recording of the Appeal proceedings from the Court of Appeal which he requested in 2012.

[39] The plaintiff says the limitation period did not start to run until he had the recording of the Appeal proceedings. I disagree. Even if the plaintiff waited until 2012 to request the recording of the Appeal proceedings in conjunction with preparing the Law Society complaint, the facts underlying that complaint and the eventual appeal made on the plaintiff’s behalf to the Minister of Justice were known to the plaintiff by at least July of 2011. The recording of the Appeal proceedings does not add to the categories of alleged negligence, and it was not needed to start the limitation period running given what has been established to have been known to the plaintiff and his wife in 2010 and 2011. By July of 2011, the plaintiff had advised the defendant’s associate that he planned to file a complaint with the Law Society and appeal to the Minister of Justice.

[40] The plaintiff had a sufficient appreciation of the matters now complained of to start the limitation period running long before he requested and received the recording of the proceedings. Furthermore, that recording was available to him and reasonably discoverable prior to 2012. The recording of the Appeal proceedings could have been requested by the plaintiff and his wife at any time after the Appeal and they admit they were speaking to other lawyers in the months and years after the Appeal.

Analysis and Conclusions on Limitations Defence

[41] I find that this action is barred by virtue of the Limitations Act. It was commenced more than two years after the plaintiff knew or ought reasonably to have known of the alleged acts or omissions said to constitute the negligence of the defendant in his handling of the Appeal.

[42] The plaintiff knew of all of the alleged incidents of negligence after the November 22, 2009 meeting. His actions after the meeting in May of 2010 and July of 2011 are consistent with my findings that he knew at least by then that:

a. the arguments made on the appeal varied from the factum that had been filed;

b. there had been three new cases from the Supreme Court of Canada in July of 2009 that made the appeal more challenging and caused a change in focus in the oral argument;

c. the sentence appeal was not argued at the hearing (the court was referred to the factum) and that this was due to the plaintiff’s guilty plea for bribing a police officer and loss of bail.

[43] The plaintiff also knew even before the Appeal was heard that no argument had been presented about the ineffective assistance that he claimed to have received from his trial counsel. He admitted that he approved the Appeal factum before it was filed, which made no reference to this argument. In the affidavit filed on a subsequent motion to re-open the Appeal Mr. Kyriakopoulos swore that the Appeal factum was “extremely detailed and carefully considered”. He now says, in hindsight, that he was only 95 percent satisfied with it because it did not contain this contention of ineffective assistance of trial counsel. For limitations purposes, what is important is that the plaintiff was aware that this argument had not been included in the Appeal factum that he approved before the Appeal was argued.

[44] Mr. Kyriakopoulos testified that the mere loss of the Appeal was enough for him to know that his lawyer performed poorly or made a mistake on the Appeal. The plaintiff did not need to see the Court of Appeal’s endorsement to know this, although he had access to the endorsement that was in the file the defendant sent to the plaintiff’s wife in November or December of 2009. Further, he admitted that he had experience with litigation as a means of leverage and recourse to remedy perceived wrongs from his experience in dealing with business matters.

[45] I find substance of the alleged negligence of the defendant, and the potential for recourse through litigation, were known, or ought reasonably to have been known, to the plaintiff and started the limitation period running on the claims asserted in this action in November/December of 2009, or by July of 2011 at the latest, after he had consulted with various other lawyers about his Appeal and contacted the defendant looking to “resolve” matters by asking the defendant to “fix” things.

[46] The plaintiff’s position on the limitation period depends primarily upon the testimony of Mr. and Mrs. Kyriakopoulos about the timing of the conversation that they say they had with Mr. Olmstead about the Court of Appeal’s endorsement. I have already indicated my reasons for not accepting their account of the timing of this conversation to be credible or reliable. Whether they are simply mistaken about the timing or are lying in order to save this action from the limitations defence does not matter, in light of my findings that:

a. if the conversation with Mr. Olmstead occurred at all it took place prior to 2012;

b. irrespective of whether this conversation ever took place or precisely when the plaintiff first read the Court of Appeal’s endorsement, the plaintiff knew or reasonably ought to have known prior to 2012 about the material facts concerning the acts or omissions of the defendant’s conduct of the Appeal upon which the alleged negligence is based.

[47] The plaintiff has not met his evidentiary burden under s. 5 of the Limitations Act to prove that his claim issued on January 3, 2014 was commenced within the two-year limitation period. The evidence is to the contrary.

B. Can a finding of solicitor’s negligence be made in the absence of any expert evidence regarding the standard of care?

[48] The plaintiff did not present a qualified expert at trial to give evidence about the standard of care of a criminal appellate lawyer in 2009. The plaintiff’s lack of expert support on this issue was the subject of multiple adjournment requests, detailed below.

The Plaintiff’s First Adjournment Request - To Retain an Expert on Standard of Care

[49] The plaintiff sought, and was granted, an adjournment when this action was first called for trial on May 22, 2018 in order to allow him time to retain an expert on the standard of care. The adjournment was expressly ordered to be peremptory to him.

[50] The plaintiff retained Mr. Cooper and delivered a report from him dated September 26, 2018. The defendant’s expert Mr. Lacy responded with a report dated October 25, 2018 and Mr. Cooper replied with a report dated November 23, 2018. None of these reports are in evidence but I was advised that the dates of their delivery correspond with the timetable that was set at the first adjournment of the trial.

[51] Mr. Cooper’s qualifications were not conceded by the defendant. When asked if the defendant had any objection to Mr. Cooper, the plaintiff was advised that the defendant was not in a position to confirm that Mr. Cooper was qualified and that the plaintiff should satisfy himself of Mr. Cooper’s qualifications.

[52] There was a second pre-trial in this matter on February 12, 2019. The plaintiff appeared at the pre-trial with counsel who was on a limited retainer that did not include attending as trial counsel. Defence counsel re-confirmed at the pre-trial that Mr. Cooper’s qualifications were not conceded.

[53] At the pre-trial there was also some indication that Mr. Cooper might be away for spring break during the time that the trial was scheduled, so the plaintiff was directed by the pre-trial judge to serve and file a motion by February 20, 2019 (to be heard February 27, 2019) if any further adjournment of the trial was being sought due to Mr. Cooper’s unavailability. No motion was brought.

The Plaintiff’s Second Adjournment Request – Unavailability of Intended Standard of Care Expert

[54] At the commencement of the trial the plaintiff asked for an adjournment, reading from a script that sounded like it was written by Mr. Cooper. This request indicated that Mr. Cooper was away on vacation and not available to testify and also indicated that Mr. Cooper had identified additional documents that he was asking to be produced from the defendant’s files. It was suggested that there might be a need for supplementary expert reports. In his submissions concerning this adjournment request the plaintiff acknowledged that he was aware that there was objection to Mr. Cooper’s evidence (report) being received by the court.

[55] This second adjournment request was denied by me. The previous adjournment had been peremptory to the plaintiff and the plaintiff did not request an adjournment in advance of the commencement of the trial as he had been directed to do by the pre-trial judge. The plaintiff was advised that arrangements could be made for Mr. Cooper to testify by video on Skype and was directed by me to contact Mr. Cooper in order to ensure his availability.

The Plaintiff’s Third Adjournment Request (withdrawn) – Disqualification of Plaintiff’s Expert

[56] In accordance with my direction, arrangements were made and Mr. Cooper did appear, initially by video. When he began to experience problems with his internet connection, leave was granted under Rule 1.08 for him to continue his testimony by phone.

[57] Mr. Cooper’s qualifications were challenged by the defendant and, after hearing his testimony and the submissions of both parties, I found that Mr. Cooper could not be qualified as an expert on the standard of care of criminal appellate counsel in 2009 because:

a. He had no first-hand experience acting as counsel on a criminal appeal in Ontario (or elsewhere);

b. He had never written or delivered any scholarly papers or advice in this area;

c. His only potentially relevant experience, with a matter involving ineffective representation, was as co-counsel on an appeal from an order of the Ontario Securities Commission; however, he candidly admitted that he had no expertise or even knowledge about standards of conduct that exist in the area of ineffective assistance of appeal counsel;

d. He had been called to the bar for less than a year in 2009;

e. He admitted that his expertise was as a “generalist” and that he researches topics and summarizes the results of his research, which was all he had done in order to prepare his report; and

f. He candidly admitted that he had no expertise to provide an opinion on the test or standard of care of solicitors in tort and that he had not considered or turned his mind to the overlap, if any, between a tort claim in negligence and the ineffective assistance of trial counsel cases that he had researched and referenced in his reports.

[58] After concluding that Mr. Cooper did not have the qualifications to be an expert in the standard of care of criminal appellate counsel in 2009, I nonetheless went on to consider whether there was any opinion evidence that Mr. Cooper could provide under the modified tests in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 and R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40. For the oral reasons that I gave on March 12, 2019 and will not repeat, I determined that even giving a wide latitude to Mr. Cooper’s potential scope of expertise and opinions (particularly because the plaintiff was self-represented), Mr. Cooper’s candid admission that all he was proffering was the service of synthesizing the issues and the law for the court rendered his testimony unnecessary. Rather, it was in the nature of a closing argument that the plaintiff was encouraged to utilize at the end of the trial (and the plaintiff did do so).

[59] After I made this ruling, the plaintiff’s initial reaction was to again ask for an adjournment. One of the concerns that the plaintiff raised was that the defendant had not objected to Mr. Cooper’s qualifications in advance of trial, and that this had led the plaintiff to believe that there was no objection to Mr. Cooper, especially after Mr. Lacy responded to Mr. Cooper’s report. In response to this suggestion, counsel for the defendant directed the court to the two instances prior to the trial when the plaintiff was advised that Mr. Cooper’s qualifications were not conceded.

[60] The plaintiff indicated a high degree of confidence that he could find another expert (which defence counsel noted was inconsistent with the plaintiff’s representation that he could not find a lawyer to assist in the trial who did not have a conflict or concern in acting against the defendant). I agreed to adjourn the trial until the next morning to allow the plaintiff and his wife time to consult with the lawyer who was advising them and to assess whether they might find another expert and, if so, how much time that expert might need to prepare a report. I directed that if the plaintiff was going to ask for another adjournment he needed to come back the next day with a particular time frame for me to consider.

[61] Court resumed the next morning at 10:30 and the plaintiff and his wife again read from a typed statement that had been prepared for them. They indicated that they had consulted with the lawyer who had been advising them. Despite the plaintiff’s indication the day before that he did not anticipate any difficulty in finding another lawyer to step in and provide the expert opinion evidence that Mr. Cooper was unable to provide, they advised that they had not identified any new expert and were unable to provide any timeframe for doing so.

[62] Given that the trial was underway, and the plaintiff had not come back with a specific adjournment request or any concrete timeline to find a new expert, I expressed concern that there was nothing to tether a further adjournment to. At this point, the plaintiff advised that he was withdrawing his request for an adjournment and was prepared to proceed but asked that the defendant’s expert, Mr. Lacy, not be permitted to testify if Mr. Cooper would not be testifying.

[63] It had been explained to the plaintiff when the trial was adjourned the first time (in May of 2018 to allow him to retain an expert on the standard of care) why having a standard of care expert was important. He was reminded of this again. I pointed out that the defendant would be relying on the jurisprudence that indicates it is generally “inappropriate for a trial court to determine the standard of care in a professional negligence case in the absence of expert evidence”: see Krawchuk v. Scherbak, 2011 ONCA 352, 106 O.R. (3d) 598, at para. 130, leave to appeal to S.C.C. refused (2011), 297 O.A.C. 395.

[64] I also pointed out to the plaintiff that, if he pursued his request for Mr. Lacy to be precluded from testifying, there would be no expert evidence on the standard of care and I encouraged him to take time to consider whether he wished to rely on Mr. Lacy’s expert opinion evidence on the standard of care while reserving his right to challenge in cross-examination Mr. Lacy’s opinion about whether the defendant fell below it or not. In order to avoid the plaintiff having to decide on the spot whether he might want to allow Mr. Lacy to testify about the standard of care, an undertaking was secured from defence counsel to make Mr. Lacy available to testify if requested.

[65] Ultimately, prior to Mr. Lacy’s scheduled time to testify, the plaintiff renewed his request that Mr. Lacy not be permitted to do so. After reminding the plaintiff of the potential consequences of there being no expert to testify about the standard of care of a criminal appellate lawyer in 2009, the plaintiff affirmed that he maintained this request that Mr. Lacy not be permitted to testify, and the defendant agreed to this. Mr. Lacy was thereafter released and did not appear.

Is Expert Testimony Required to Establish Professional Negligence?

[66] The defendant argued that the plaintiff’s claim in negligence fails in the absence of any expert evidence about the standard of care of a criminal appellate lawyer in 2009 in respect of the impugned conduct, relying on Krawchuk.

[67] The Court of Appeal in Krawchuk does not go so far as to foreclose the possibility of a finding of solicitor’s negligence in the absence of expert evidence about the standards of the profession in the particular area, but it makes it clear that it will be difficult for a plaintiff to do so. Two exceptions that have been recognized arise in cases involving:

a. “[N]ontechnical matters or those of which an ordinary person may be expected to have knowledge” (at paras. 133-134);

b. “[I]mpugned actions of the defendant that are so egregious that it is obvious that his or her conduct has fallen below the standard of care, even without knowing precisely the parameters of that standard” (at para. 135).

[68] The Alberta Court of Appeal observed in the case of Mraz v. Herman, 2016 ABCA 313, 42 Alta. L.R. (6th) 1, at para. 47 that: “The bulk of modern authority suggests that in most circumstances judges are not ideally situated to determine whether a lawyer’s standard of care in a particular circumstance was sufficient to discharge his or her fiduciary obligations.” I agree with that reasoning, which puts a judge in the same position as an ordinary person (and typically in need of expert assistance) when assessing the standard of care to which criminal appellate counsel should be held. That still leaves the plaintiff with the option of demonstrating the applicability of the second exception for egregious or obvious conduct.

[69] The plaintiff primarily relied upon ineffective assistance of counsel cases in the criminal appeal context for examples of conduct that he contends, by analogy, would fall below the standard of care to which the defendant should be held. Those cases do not typically depend upon expert evidence as to the standard of care. However, in those cases, the court is not making a finding of negligence against the solicitor (who is alleged to have been ineffective) and the remedy being sought is a new trial if the court is ultimately satisfied that there has been a miscarriage of justice.

[70] The analogy that the plaintiff seeks to directly draw between these ineffective assistance cases and his claim in tort for negligence is not a direct one. That said, I have reviewed and considered the points that arise from these cases with an open mind that there might be something in them to support a finding that the conduct of the defendant fell below a standard of care that is not dependent on expert opinion to define it.

[71] Despite the urgings of counsel for the defendant, I have not approached my decision in this case on the basis that the absence of expert evidence on the standard of care is a prima facie reason for me to dismiss the plaintiff’s allegations of negligence. However, the absence of any expert opinion evidence has necessarily constrained the analysis, as will be evident from the discussion below about the standard of care against which the defendant’s conduct is to be measured.

C. Did the defendant’s conduct of the Appeal fall below the standard expected of a reasonably competent criminal appellate counsel?

[72] In order to answer this question, the standard of care of reasonably competent criminal appellate counsel must first be established.

What is the Standard of Care?

[73] In the absence of an expert report on this topic, I have looked for general benchmarks of the standard of care in solicitor’s negligence cases and I have considered whether cases dealing with the competence of criminal defence counsel in the context of appeals that raise the issue of “ineffective assistance of counsel” can provide any further guidance.

[74] One of the leading cases in the area of solicitor’s negligence in the Supreme Court of Canada is Central Trust Co. v. Rafuse, 1986 SCC 29, [1986] 2 S.C.R. 147, at p. 208 (a case in which there was expert testimony on the standard of care and whether the solicitor fell below it). It is a good starting point for the general benchmarks of competent counsel, which are that:

a. a solicitor is required to bring reasonable care, skill and knowledge to the performance of the professional service which he has undertaken;

b. the relevant standard of care has been variously referred to as that of a reasonably competent solicitor, the ordinary competent solicitor and the ordinary prudent solicitor;

c. the standard of care of a specialist may be higher than for a generalist;

d. a solicitor is not bound to know all of the law, but ought to know where to find out the law that affects matters within his field.

[75] Beyond these very general benchmarks, the other cases that were cited by the parties appear to be more helpful in ruling out what does not amount to solicitor’s negligence or incompetence.

[76] It is well recognized that when a lawyer is found to have breached the rules of professional conduct in dealing with a client, that is not necessarily negligence. The rules of professional conduct are not binding on the courts and do not necessarily describe the applicable duty or standard of care in negligence: see Perez v. Galambos, 2009 SCC 48, [2009] 3 S.C.R. 247, at para. 29. The rules of professional conduct may inform a court’s decision on the question of duty and standard of care but they do not, in and of themselves, create legal duties that found a basis for civil liability: see Hall v. Bennett Estate (2003), 64 O.R. (3d) 191 (C.A.), at para. 62.

[77] The Court of Appeal for Ontario in the case of Folland v. Reardon (2005), 74 O.R. (3d) 688 (C.A.), in considering the standard of reasonably competent defence counsel, affirmed the often-repeated caution against equating errors in judgment by counsel during a lawsuit with incompetence (at para. 44):

The reasonable lawyer standard does not call for an assessment of the sagacity of the decision made by the lawyer. The standard demands that the lawyer bring to the exercise of his or her judgment the effort, knowledge and insight of the reasonably competent lawyer. If the lawyer has met that standard, his or her duty to the client is discharged, even if the decision proves to be disastrous.

[78] The decision in Folland relied heavily on expert opinion testimony that the lawyer’s judgments about what evidence to call and what to cross-examine witnesses about did not reflect the effort, knowledge and insight of a reasonably competent lawyer.

[79] Appeals involving ineffective assistance (or incompetence) of counsel also adhere to the caution against equating errors in judgment with incompetence, and provide further guidance about what does not amount to incompetence:

a. Defence counsel are not mouthpieces for their clients. Decisions about whether or not to call (or cross-examine) a particular witness are generally matters of judgment for the lawyer in exercising their professional skill and judgment in what they consider to be in the best interests of their client: R. v. White (1997), 32 O.R. (3d) 722 (C.A.), at p. 751.

b. Negative observations from the bench about the conduct of defence counsel during a proceeding are not proof that the conduct in question fell below the standard of reasonable professional skill and judgment: see White, at pp. 757-759.

c. Defence counsel is not required to bring forward all evidence and argument suggested by their client or to obtain approval from their client before taking any action in the course of a proceeding. “Defence counsel is not merely to do the bidding of the accused. Instead, defence counsel is expected and required to exercise independent judgment.” The fact that the accused would have conducted his defence differently if he had been unrepresented does not on its own cast any doubt on the competence of defence counsel: see R. v. DiPalma (2002), [2005] 2 C.T.C. 132 (Ont. C.A.), at para. 38.

[80] The reasonableness of defence counsel’s conduct is assessed in these ineffective assistance cases under what is described as the “performance component” of the test. The performance component of the ineffective assistance analysis begins with a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance, and the accused has the onus of showing that it did not.

[81] The ineffective assistance of counsel cases are very fact specific. The more recent case referred to by the plaintiff, R. v. Zamrykut, 2017 MBCA 24, 35 C.R. (7th) 447, was a case that was highly dependent on challenging the reliability and credibility of the complainant. Trial counsel was criticized for not cross-examining the complainant on inconsistencies in her testimony and for not calling a witness who might have discredited a particular part of the complainant’s testimony, going so far in closing argument as to suggest that the court might even believe her. The Manitoba Court of Appeal found trial counsel had adopted a strategy that left no basis on which the trial judge could conclude that the complainant was not reliable (the very conclusion that was being urged by trial counsel). In this extreme example, defence counsel’s trial strategy was found to have been doomed to fail from the start and thus unreasonable (at paras. 15-18).

[82] The case of R. v. Joanisse (1995), 85 O.A.C. 186 (C.A.) also relied upon by the plaintiff is equally fact-specific. Defence counsel at trial was found to have provided ineffective assistance for failing to take steps to protect the accused from the calamitous consequences of his last-minute decision not to testify, an eleventh-hour instruction that was known to counsel not to be in the client’s interests and contrary to counsel’s advice (at para. 111).

[83] In the Joanisse case, when considering the measurement of counsel’s performance against the competence standard the Court of Appeal looked to the standard developed in the United States in Strickland v. Washington, 104 S. Ct. 2052 (1984) that has been adopted in this jurisdiction and summarized the following essential elements (at para. 73):

a. The proper measure of attorney performance remains reasonableness under prevailing professional norms.

b. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. The difficulty inherent in making this evaluation is the rationale for the presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.

c. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment and then the court must judge whether those acts or omissions were outside of the wide range of professionally competent assistance.

[84] From these principles, the Court of Appeal made the very clear declaration that the wisdom of hindsight has no place in this assessment and emphasized that the reasonableness standard reflects the fact-specific inquiry demanded by incompetence claims: Joanisse, at paras. 72-73.

[85] While the professional negligence cases appear to strictly require expert opinion evidence on the standard of care (unless the exceptions apply), the ineffective assistance cases do not do so when considering the performance component of the test. As a practical matter, the ineffective assistance cases, which begin with a presumption of competence that the plaintiff must overcome may be closer to the types of situations that fall under the second category of exception in tort cases, where the impugned actions of the defendant are said to be so egregious that it is obvious his or her conduct has fallen below the standard of care.

[86] In general terms, the standard of care to be applied in this case is that articulated by the Court of Appeal in Folland (at para. 43): Mr. Kyriakopoulos was entitled to expect that the defendant would exercise his judgment (in his handling of the Appeal) with the effort, knowledge and insight of a reasonably competent lawyer. In the absence of an expert opinion that the defendant has not met this standard, the plaintiff has the burden to demonstrate, on a balance of probabilities, that any given act or omission, or some combination of them as alleged, was so egregious that it is obvious that the defendant’s conduct fell below the standard of care. In meeting this burden, the plaintiff must also overcome the guidance described above about what does not constitute negligence or incompetence.

Did the Defendant’s Conduct Fall Below the Expected Standard of Care?

[87] At the core of the plaintiff’s complaints is the contention that the evidence seized from the plaintiff’s storage locker, on his person and from his car should have been excluded under s. 24(2) of the Charter. This follows on the finding of the trial judge that the initial search of the storage locker by Detective MacCallum (when he climbed the ladder and looked into the locker and saw a bag with what looked like cocaine in it), was conducted in breach of the plaintiff’s s. 8 Charter rights. Detective MacCallum admitted that he did not have reasonable and probable grounds to search the plaintiff’s storage locker when he did this.

[88] Each of the specific allegations of the defendant’s incompetence are addressed in turn. Each has been assessed even though the defendant argued that most had not been pleaded in the Fresh as Amended Statement of Claim (with his primary position being that those should not be considered at all by the court). Since the plaintiff is self-represented, I allowed some latitude on this pleading point (even though counsel for the defendant has properly noted that the plaintiff was represented by counsel when his pleadings were delivered).

[89] After reviewing all the allegations and considering them in light of the legal framework discussed above, the plaintiff has not proven on a balance of probabilities that any of the defendant’s alleged acts or omissions, or any combination of them, were so egregious that it is obvious that the defendant’s conduct of the Appeal fell below the standard of care of a criminal appellate lawyer in 2009.

(i) Did the defendant’s oral argument on the Appeal concerning the findings of the trial judge fall below the standard of care?

[90] The trial judge made two significant findings of fact that bore upon any s. 24(2) Charter analysis to consider exclusion, that: (a) the plaintiff’s expectation of privacy with respect to the storage locker was at the low end of the privacy spectrum; and (b) the search of the plaintiff’s storage locker was a perimeter search and thus less serious than if the detective or police officers had gone inside the locker.

[91] The plaintiff asserts that the defendant did not competently make the arguments during the Appeal to challenge these findings of the trial judge and to demonstrate to the Court of Appeal that: (a) the plaintiff’s expectation of privacy in the storage locker, with all of its security features, was greater than the expectation of the accused in the case of R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, in which evidence seized from a rented locker at a bus station was excluded; (b) the police had forcibly entered into the plaintiff’s storage locker by cutting the wire mesh ceiling (and it was only after doing that they were able to climb a ladder and view the locker contents by looking into it from above), so this was not just a perimeter search.

[92] Having reviewed the transcript of the Appeal proceedings [2] and heard the defendant’s testimony about what transpired at the Appeal, I am satisfied that the defendant did address these arguments during the Appeal. He did so despite his judgment that they were weak appeal points because they were directed to the trial judge’s findings of fact and exercise of discretion, which is subject to a high standard of review on appeal. All of the plaintiff’s criticisms are classic examples of what does not constitute negligence or incompetence of counsel; rather, they are attempts to second guess and apply hindsight to judgments made by the defendant about the appeal strategy and submissions made during the course of the argument of the Appeal, which the overwhelming preponderance of authorities say cannot be the basis for a finding of incompetence (or a finding that the defendant fell below the standard of care).

(a) Challenging the Trial Judge’s findings about the plaintiff’s expectation of privacy

[93] The plaintiff contends that the defendant did not argue by analogy to the Buhay case and that the defendant conceded during the argument of the Appeal that there was an unobstructed view into the storage locker (and thus a low expectation of privacy) because of the mesh ceiling. The defendant denies this and points to various arguments that were made to the contrary.

[94] It is clear from the Appeal transcript and from the defendant’s testimony about the hearing that the defendant did make the argument that the plaintiff’s expectation of privacy in this case was higher than in Buhay, for example by pointing out that this was a secure storage facility that people could actually go inside with the expectation that they would have privacy while in there (it was not just a locker to store things in) (see Exhibit 6, pp. 21-22 and 25-26).

[95] However, the Court of Appeal, with the benefit of the trial record including all the evidence about the security features of this particular storage facility that had been elicited during the testimony at trial, saw the situation differently. The Court of Appeal appears to have been influenced by the fact that the storage locker ceiling was not opaque. This was considered to be less private than a fully enclosed storage locker such as in the case of Buhay. It was also the basis for the neighbour in the apple tree analogy that the Court of Appeal applied.

[96] Despite the defendant’s efforts to distinguish the plaintiff’s circumstances from the opportunistic neighbour in the apple tree, the Court of Appeal did not accept the argument that the plaintiff’s expectation of privacy in this case was higher than (or even on par with) the expectation of privacy in the Buhay case. The Court of Appeal had the entire evidentiary record from trial, including the testimony of Mr. Scott (the owner of the storage facility) who described the ceiling of the plaintiff’s storage locker to be a grid of four-by-four metal (larger than chicken wire) laid on top of the locker (Trial Exhibit 2, tab 16, at pp. 148-149) and who testified that he went up a ladder in the unit next door and pushed the ceiling up in order to look down into the plaintiff’s storage locker (at p. 157). [3] This evidence is consistent with how the Court of Appeal viewed the situation.

[97] The fact that arguments were made that were not accepted by the Court of Appeal (and may have even been the subject of negative observations from the bench) is not a reflection of the defendant’s incompetence. Hindsight has no place in this assessment: see White, at pp. 757-759 and Joanisse, at paras. 72-73.

[98] In the face of the evidentiary record from trial, the defendant’s allowance during oral argument for an alternative position, that even an unobstructed view would not diminish the plaintiff’s expectation of privacy, is not akin to the egregious circumstances of the Zamrykut case that the plaintiff relies on, in which the concessions made it impossible for the court to find in the plaintiff’s favour.

(b) Challenging the Trial Judge’s findings about forcible entry into the plaintiff’s storage locker

[99] The plaintiff raises a number of criticisms about the fact that both the trial judge and the Court of Appeal considered this to be a perimeter search of his storage locker, rather than a forcible entry into the locker. If found to be a forcible entry, the plaintiff contends that that would have elevated the seriousness of the breach of his s. 8 Charter rights and would have been a relevant consideration under the new test for exclusion under s. 24(2) that emerged from the Supreme Court of Canada in the case of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[100] On the forcible entry point, the fact that the storage locker ceiling was not opaque featured significantly in the trial judge’s decision and was adopted by the Court of Appeal. Defence counsel at trial argued that the plaintiff’s storage locker had been broken into and that there had been a staged search, said to be evidenced by a photograph that showed a piece of wire mesh on the floor of the storage locker under the bag. However, the trial judge did not accept this theory.

[101] The plaintiff is critical of the defendant for not re-emphasizing this break-in theory during oral argument on the Appeal. A related criticism is that the defendant did not address in oral argument the trial judge’s denial of the request by Mr. Kyriakopoulos for the opportunity to cross-examine the Crown’s witnesses to attempt to elicit further evidence of forced entry. The defendant’s assessment was that the Court of Appeal was very familiar with the record from trial and of the evidence which supported the findings of the trial judge (including the testimony of Mr. Scott referred to in the previous section). The defendant instead spent the available time during the Appeal on other points.

[102] In addition to cross-examining Mr. Scott and Detective MacCallum on the account they gave during their testimony of the mechanics of how they were able to look into the storage locker, the plaintiff also wanted the defendant to argue on Appeal for the right to cross-examine these witnesses to challenge their credibility: (a) to ask Mr. Scott about other ways in which the fire at the storage facility could have been investigated (that might have ruled out the need to search the plaintiff’s storage locker); and (b) to ask Detective MacCallum about his recent criminal conviction.

[103] The defendant explained in his testimony that calling the Crown’s witnesses would be risky and arguably unhelpful to the plaintiff given that Detective MacCallum had already admitted to having conducted an illegal perimeter search without any reasonable and probable grounds. It was the defendant’s judgment that it would not be in the strategic interests of the plaintiff’s criminal defence to seek to undermine this admission that supported the trial judge’s determination that the search of the plaintiff’s storage locker had been illegal. The plaintiff himself testified that he was happy with their admissions that supported that determination.

[104] It was also the defendant’s judgment that the scope of any permissible cross-examination of these witnesses would necessarily have been very narrow, or perhaps entirely moot. The defendant explained that this was because the trial judge had conducted a Garofoli hearing and excised from the support for the search warrants anything dependent upon what Detective MacCallum (or Mr. Scott) saw when he went up the ladder in the adjacent storage unit. [4] With that evidence having been excised, the defendant’s view was that there would be little if anything permissible to cross-examine on (certainly Detective MacCallum’s personal life and unrelated charges laid against him, which were of particular interest to the plaintiff, would not have been within that narrow scope). The scope for any cross-examination of Mr. Scott would be similarly limited.

[105] It was the defendant’s judgment not to pursue arguments in oral submissions at the Appeal about the prospect of evidence that the plaintiff regretted had not been elicited from the Crown’s witnesses at the preliminary inquiry. The defendant’s judgment was that the new evidence might have provided context if a new trial was ordered, but challenging the trial judge’s decision not to allow cross-examinations was not the winning argument to focus on in order to succeed on the Appeal.

[106] These complaints by the plaintiff are a another good illustration of precisely why decisions made by counsel in the course of litigation that require the exercise of judgment are not readily open to attack and should not be assessed with the benefit of hindsight, nor should the competence of counsel be doubted just because the accused (or even another lawyer) says, with hindsight, that he would have conducted the case differently: see Joanisse, DiPalma, Folland, and White.

(ii) Did the defendant’s decision not to address all points included in the factum during oral argument of the Appeal fall below the standard of care?

[107] The plaintiff complains that there were points included in the Appeal factum that were not referred to in oral argument. This complaint appears to stem from the plaintiff’s “discovery” of the Court of Appeal’s endorsement and its opening sentence: “The appellant advances a somewhat different argument than those found in the factum.”

[108] As a starting point, the defendant says that there is no standard or even a best practice that suggests that every point in a factum should be addressed in oral argument. That is something that I can take judicial notice of.

[109] Furthermore, oral argument on an appeal is time-limited and by necessity judgments must be made about what to focus on, often based on what the Court of Appeal appears, from their questions, to be interested in. The authorities previously referenced make it clear that there is a wide latitude afforded to counsel in making those types of judgments, which are not subject to attack with the benefit of hindsight or simply because someone else later suggests that it could have been handled differently.

[110] Most of the plaintiff’s criticisms in this regard have already been addressed in the previous section. The plaintiff’s criticisms about the failure to address the parts of his factum dealing with his sentence appeal are addressed in the next section.

[111] The plaintiff argued more generally that he retained the defendant in this case to argue all of the points in the Appeal factum, which the plaintiff testified he was satisfied with and had approved (with one exception discussed in the next section below). However, there is no evidence of the “retainer” being limited in this way. The defendant denies that this was the retainer, or that he would have accepted such a retainer, noting that would not be within the normal course of a mandate for counsel to simply be the “mouthpiece” of the client to argue all points identified as possible arguments with no discretion as to what to prioritize and focus on during the Appeal: see DiPalma, at para. 38.

[112] In the absence of clear and direct evidence that the defendant accepted a retainer to make oral submissions about every point raised in the Appeal factum or Notice of Appeal, I am not prepared to find that he did so. That would be a retainer contrary to the authorities that allow significant latitude to counsel in their judgment of what to focus on during a hearing, for good reason: see Joanisse, DiPalma, White and Folland.

[113] In any event, none of the points the plaintiff says were omitted from oral argument rise to the level of egregious or obvious instances of incompetence; to the contrary, they reflect the type of judgment calls that the authorities say do not amount to incompetence.

(iii) Did the defendant’s decision not to refer in oral argument on the Appeal to the sentence appeal that was raised in the appellant’s factum fall below the standard of care?

[114] It is conceded by the defendant that he did not make oral submissions about the sentence appeal during the Appeal hearing.

[115] The defendant testified that the arguments that had been raised in the Appeal factum regarding the request for leniency in the plaintiff’s sentence appeal had been overtaken by the fact that, after the appeal was filed and the plaintiff was granted bail, he committed and pleaded guilty to a further offence of bribing a police officer. The plaintiff lost his bail as a result. This was done on the advice of other counsel (and not in consultation with the defendant). This compromised the accelerated parole date that the plaintiff had hoped for as well.

[116] The defendant had planned to argue the sentence appeal, but these intervening events and circumstances undermined the available and intended arguments. The defendant explained that, in order to ask for leniency on the sentence due to the plaintiff’s medical condition, the plaintiff would have to show that his life was back on track, and it was the defendant’s judgment that this would not be a credible assertion in the face of the plaintiff’s loss of bail and incarceration for another offence.

[117] The plaintiff acknowledged in his testimony that this guilty plea to the charge of bribing a police officer was based on what he now characterizes as bad advice from his original trial counsel, Mr. Olmstead, and that he did not appreciate that it would have this effect on his sentence appeal. The plaintiff did not consult with the defendant about this guilty plea. The defendant was in no position to provide advice against or prevent the calamitous consequences of the plaintiff’s decision to plead guilty, unlike the situation in the case of Joanisse that the plaintiff relied upon.

[118] The judgments that the defendant had to bring to bear in dealing with the implications of the plaintiff’s guilty plea for the sentence appeal are not open to second guessing or criticism in hindsight, having regard to the authorities previous referred to (including Joanisse), nor has the plaintiff identified any fault with the defendant’s rationale for the judgment not to raise the sentence appeal during oral argument.

[119] Even if the plaintiff would have preferred to have discussed the defendant’s concerns ahead of time, and even if the plaintiff seeks to characterize this as a breach of the rules of professional conduct with respect to effective and timely communication by counsel, that is not tantamount to negligence: see Perez at para. 29 and Hall at para. 62.

(iv) Did the defendant’s decision not to file a reply or supplementary factum after the Supreme Court of Canada released its decision in R. v. Grant and related decisions on July 17, 2009 and his conduct of oral argument about the Grant case fall below the standard of care?

[120] The Appeal challenged the trial judge’s decision not to exclude the drugs that were seized from the plaintiff following his arrest.

[121] The trial judge addressed the concerns presented by Detective MacCallum’s illegal search of the storage locker conducted in breach of s. 8 of the Charter (in the absence of reasonable and probable grounds) by excising from the subsequently issued warrants anything based on Detective MacCallum’s testimony about what he saw during that first illegal search. Having found the warrants to still be valid after this excision, the trial judge concluded that the search of the plaintiff’s person, storage locker and car incidental to his arrest were lawful. The evidence derived therefrom thus did not need to be excluded, according to the trial judge.

[122] The trial judge did not primarily resort to s. 24(2) of the Charter. Because the trial judge excised the information obtained during the illegal search from the grounds in support of the warrants, he did not find there to be a nexus between the breach and the evidence obtained during the search. The trial judge only went on to consider s. 24(2) of the Charter under what he considered to be a hypothetical scenario of invalid search warrants and a lack of reasonable and probable grounds for the plaintiff’s arrest.

[123] On the Appeal, the defendant argued based on a well-established line of authority that, even in the absence of a causal connection between the illegal search and the arrest and seizure, a temporally antecedent illegal search was sufficient to find a nexus between the breach and evidence improperly obtained to permit the exclusion of seized evidence under s. 24(2) of the Charter. For this proposition the defendant relied upon R. v. Kokesch, 1990 SCC 55, [1990] 3 S.C.R. 3.

[124] The defendant argued during the Appeal that the trial judge should have conducted the s. 24(2) analysis in relation to the original s. 8 Charter breach arising from the unlawful search of the storage locker, and not in relation to the validity of the subsequently issued warrants and the plaintiff’s arrest. If directed to the original search, the defendant argued the evidence ought to have been excluded under s. 24(2).

[125] The defendant explained in his testimony that the Supreme Court of Canada in the Grant case provided additional guidance on how a trial judge should exercise his/her s. 24(2) discretion, and that the practical effect of it was to make it harder to exclude evidence under this discretionary analysis, but not impossible. The defendant decided that any implications of this decision could be addressed in oral argument on the Appeal.

[126] The Court of Appeal received and considered the s. 24(2) arguments made by the defendant during the Appeal about when and how s. 24(2) should have been applied, but they concluded that even if there had been a causal connection between the seized evidence and the s. 8 breach there was no basis upon which the evidence of the seized narcotics could possibly be excluded under s. 24(2) in light of the trial judge’s findings of fact (see Exhibit 1, tab 12).

[127] The plaintiff’s further criticism that there was not an even playing field because the Crown’s Appeal factum addressed the factors in the Grant case directly is not sufficient to support a finding that the defendant fell below the standard of care. There is no procedure that even permits a reply or supplementary factum in the Court of Appeal without leave, nor any point from the Grant case that the plaintiff has identified that the Court of Appeal was not aware of that could have been more effectively presented in a written form.

[128] This complaint about how the defendant dealt with the guidance from the Grant case about the discretionary factors under s. 24(2) of the Charter on the Appeal comes back to a suggestion, in hindsight, that there were different or better ways in which to handle the Appeal. These are matters of judgment for counsel and do not amount to an egregious or obvious omission or incompetence on the part of the defendant, for the reasons I have previously indicated in respect of other grounds.

(v) Did the defendant fall below the standard of care by not “winning” the Appeal?

[129] On one level, the plaintiff seems to be arguing that the Appeal could only be lost by incompetent counsel. To the extent that this is just an omnibus argument about of all of his other criticisms of the defendant’s handling of the Appeal, they are addressed elsewhere in these reasons.

[130] Another argument being made by the plaintiff is that the defendant guaranteed the Appeal would be won by representing to the plaintiff and his wife that this was a cut and dry appeal, or words to that effect. The plaintiff and his wife both testified that the defendant made a guarantee or representation to this effect. The defendant denied having done so, also pointing out that the Rules of Professional Conduct would not permit him to say something like this to a client, and that it was never his practice to do so. The November 22 Notes refer to a suggestion made by Mrs. Kyriakopoulos that the defendant had said the Appeal was “easy breezy” and the Notes also reflect that the defendant denied having said that.

[131] The defendant testified that, while he believed that the Appeal had some merit (and this was reinforced by the initial and early success on the bail hearing), he did not and would not ever tell a client that an appeal was “cut and dry”, or words to that effect. He explained as well that his practice is to be particularly cautious in what he says to an appellant, who will always have an uphill battle on an appeal.

[132] Thus, there is a direct conflict in the evidence on this point between the plaintiff and his wife on the one hand and the defendant on the other. Common sense favours the defendant’s denial of having guaranteed a “win” on the Appeal. There is no good reason, and there are lots of bad reasons, for a lawyer to provide such a representation or guarantee regarding the outcome of an appeal.

[133] The defendant was forthright and consistent in his explanations throughout his testimony. I contrast this with the plaintiff and his wife who said things to suit their immediate goals during the trial, even if not consistent with other testimony or events. Some examples are:

a. Mr. Kyriakopoulos used the excuse that he was heavily medicated and did not appreciate the significance of the agreed facts at his criminal trial or the guilty plea he entered into before trial, yet the sentencing reasons at his criminal trial indicate that he had represented to the court that he was not taking any prescribed medication at the time (see Exhibit 1, tab 7, para. 27);

b. Mr. Kyriakopoulos said at the outset of this trial that he had been unable to find a lawyer to assist in this case who was not conflicted, but later said that lawyers were a dime a dozen and that he did not expect to have any trouble finding one to hire who would adopt Mr. Cooper’s opinion after Mr. Cooper was found not to be qualified;

c. Mr. Kyriakopoulos approved the Appeal factum before it was filed, that did not make any argument about ineffective assistance of trial counsel, and swore an affidavit prior to trial stating that it was “extremely detailed and carefully considered” but testified at trial that he was only 95% satisfied with the Appeal factum because of its omission of this argument that he now complains should have been made;

d. Mrs. Kyriakopoulos initially would not admit that the defendant had advised against seeking leave to appeal to the Supreme Court of Canada (which would have been contrary to the plaintiff’s conspiracy theory), but she eventually relented and admitted that the defendant did in fact recommend against seeking leave when confronted with the Notes and other evidence in that November 2009 timeframe;

e. Mrs. Kyriakopoulos was unwilling to acknowledge, or was vague in her recollections, when it came to matters that she discussed with her husband prior to the two-year period before the action was commenced, although the plaintiff himself admitted some of them; and

f. Mr. and Mrs. Kyriakopoulos both testified about a conversation with Mr. Olmstead conveniently just less than two years before this action was commenced, that cannot be corroborated by him or by any other facts or events, all of which are more consistent with the conversation happening as much as two years earlier.

[134] On balance, I find the defendant to be more credible than the plaintiff and his wife and I prefer his testimony over theirs on points of direct controversy. I find that the defendant did not make a representation or guarantee of success on the Appeal. I will allow for the possibility that the plaintiff and his wife misunderstood the defendant when he was expressing cautious optimism for their chances on appeal, especially after the initial success on the bail hearing. However, even if they misconstrued what was said to them, there was still no representation or guarantee of success given.

[135] The fact that the Appeal was lost does not indicate egregious or obvious incompetence and is not grounds for a finding that the defendant’s conduct fell below the standard of care in this case.

(vi) Did the standard of care require the defendant to include ineffective assistance of trial counsel as a ground for appeal?

[136] The plaintiff contends that he raised with the defendant that he was ineffectively represented by his criminal trial counsel and that he asked for this to be raised on the Appeal. Among the many complaints he has about his trial counsel, the plaintiff specifically contends that he advised the defendant that he did not approve the agreed statement of facts that was agreed to by his trial counsel and maintains that the inclusion in the “agreed facts” that Detective MacCallum and Mr. Scott “peered” into his locker undermined the plaintiff’s ability to argue that there was a forced entry into his storage locker.

[137] The defendant points out that the argument of forced entry was made by counsel for Mr. Kyriakopoulos at the criminal trial and there is no indication in the trial decision to this having been foreclosed by the agreed statement of facts (the arguments made at trial and on the Appeal about the forced entry are reviewed in detail in the first alleged category of negligence discussed above). While the plaintiff described his criminal trial counsel as an “imbecile”, he did not provide any other clear examples of ineffective assistance beyond his complaint about the agreed statement of facts.

[138] The defendant denies that ineffective assistance was a point that was discussed as a ground for the Appeal. The defendant relies on the fact that the plaintiff approved the Appeal factum, which does not raise this argument (nor does the original Notice of Appeal).

[139] There is contradictory evidence from the plaintiff and the defendant about whether this potential ground of appeal (ineffective assistance) was ever discussed. I have previously indicated why, on points of controversy, I prefer the evidence of the defendant over the plaintiff, because I find the defendant to be more credible and his evidence to be more reliable and consistent, in contrast with the plaintiff’s evidence.

[140] If this had been discussed as the plaintiff contends, it is reasonable to expect that the plaintiff would have questioned its absence from the Appeal factum when he reviewed and approved it. While the plaintiff testified in 2019 that he was only 95 percent satisfied with the Appeal factum (due to the absence of this argument of ineffective assistance of trial counsel), the plaintiff did not testify that this omission from the Appeal factum was raised by him with the defendant or the defendant’s associate at the time the factum was being finalized when the plaintiff admits he reviewed and approved it. Further, the plaintiff did not raise this as one of his grounds of complaint to the Law Society about the defendant, nor did he plead this alleged negligence in the statement of claim in this action.

[141] The plaintiff’s repeated failures to raise any concern about the absence of the ground of ineffective assistance of trial counsel in the Appeal proceedings is consistent with the defendant’s testimony that it was not discussed, and is not consistent with the plaintiff’s testimony that it was discussed. Its absence from the various documents approved or written by the plaintiff renders the plaintiff’s testimony less credible. I find that the ineffective assistance of trial counsel was not raised by the plaintiff with the defendant as a point to make in the Appeal proceedings.

[142] The plaintiff has also not proven on a balance of probabilities that he received ineffective assistance from his criminal trial counsel. In the absence of any compelling reason for the inclusion of this as a ground of Appeal, there is nothing egregious or obviously incompetent in it not having been raised by the defendant in the Appeal proceedings.

(vii) Did the manner in which the defendant reported to and communicated with the plaintiff and his family members fall below the standard of care?

[143] The plaintiff complains that there was no immediate report and debrief about how the Appeal went after it was argued. The plaintiff’s wife testified that she was told by the defendant that she and the plaintiff’s parents could not attend the Appeal. The plaintiff testified to his theory that the defendant had decided to “throw” the Appeal so he could get the brief to seek leave to appeal to the Supreme Court of Canada and thus lied to prevent them from attending to witness his bad performance, which has come to light from the recording of the Appeal proceedings.

[144] The defendant denies that he did or would have discouraged immediate family members from attending the Appeal; to the contrary, he testified that it was his practice to encourage family members to attend. The defendant’s alleged motive of throwing the Appeal in order to get the next brief is undermined by the testimony of the plaintiff’s wife. She eventually acknowledged in cross-examination that the defendant advised her that seeking leave to appeal to the Supreme Court of Canada would be a waste of the plaintiff’s money.

[145] Even if I allow for the possibility that there was some misunderstanding about what was said to Mrs. Kyriakopoulos, the plaintiff has the onus of proving on a balance of probabilities that his wife was told she could not attend the Appeal, and I am not satisfied that this onus has been met. I find it more likely than not that the defendant did not discourage the plaintiff’s wife and other immediate family members from attending the Appeal and I prefer the defendant’s testimony over that of Mrs. Kyriakopoulos (for the reasons previously indicated).

[146] I next turn to the criticism that the defendant did not report immediately after the Appeal in person and /or discuss in advance what would or would not be covered in oral argument. Even if this could rise to the level of a communication deficiency that in theory might have contravened the Rules of Professional Conduct (as the plaintiff contends), it does not amount to a breach of duty in negligence without something more: see Perez and Hall.

[147] Further, it was not unreasonable for the defendant to have someone from his office call the plaintiff’s wife, as they did, to provide a short overview of the Appeal submissions and then to schedule a meeting shortly afterwards to go through everything in more detail, which they did do. The defendant’s travel commitments commencing on the day of the Appeal necessitated a later in-person meeting, which took place on November 22, 2011 and this is reflected in the Notes. The Rules of Professional Conduct of the Law Society of Ontario (at the time, the Law Society of Upper Canada) include timely and effective communication among the indicia of competency (see Rule 3.1-1(d)) but do not prescribe that all reporting must be done by the principal lawyer from the firm.

[148] The plaintiff has not established that the manner and timing of the defendant’s reporting about the Appeal was egregious or obviously incompetent.

D. Has the plaintiff established on a balance of probabilities that he would have been acquitted but for the defendant’s negligence?

[149] The plaintiff has not made out the necessary causal connection between the alleged acts of negligence and the decision of the Court of Appeal to uphold his conviction and sentence. “But for” causation is a necessary element of any claim in negligence.

[150] The Court of Appeal explains in Folland (at para. 91) that for each alleged negligent act the court must ask whether it is more likely than not that the plaintiff would have been acquitted (or his sentence reduced, or even a new trial ordered) if the lawyer had done what is alleged he should have done. What is to be avoided is giving effect to a client’s complaint that lack of skill or care on the part of his lawyer prevented him from obtaining an acquittal or a new trial that would not have been granted for other reasons (Folland at para. 92).

[151] This is why it is not considered to be unfair to require the plaintiff to show on balance of probabilities that he would have been acquitted (or enjoyed some other outcome) “but for” the alleged acts of negligence. The plaintiff has not done so, or attempted to do so, in this case. Even if I had found that the defendant had not done, or should have done, the things that the plaintiff complains about, there is nothing in the record to support a finding that the outcome of the Appeal would have been any different for the plaintiff.

E. Has the plaintiff proven that he suffered any special, general or punitive damages as a result of the alleged negligence?

[152] In order to be entitled to anything more than nominal damages in a case of wrongful conviction due to the negligence of defence counsel, the plaintiff must show on a balance of probabilities that he would have been acquitted had he received reasonably competent legal advice and representation: see Folland, at paras. 87-93. In this case, neither the negligence nor the “but for” causation have been established.

[153] The plaintiff testified that he was not looking for money or any form of financial gain from the defendant. Rather, he explained that he had sued for leverage in an effort to have the defendant take further steps in the criminal proceedings on the plaintiff’s behalf to “fix” the conviction.

[154] At the conclusion of the trial I asked what, if anything, the plaintiff was seeking in damages. After taking a break to confer with his wife and being afforded the opportunity to consult with counsel, the plaintiff advised that he wanted $800,000.00 to compensate for the adult entertainment business that he claims he and his wife lost, although no evidence was proffered about this business, its profitability or how, when or why it was lost.

[155] No evidence was led at trial about any other financial or reputational losses the plaintiff has suffered as a result of his conviction and time spent in jail and on probation. Proof of loss is a necessary element of any claim in negligence. There is no record at all upon which any damages or losses could be assessed. Nominal damages would be the most that the plaintiff could recover even if negligence had been established.

F. Is this action an abuse of process?

[156] It has been found to be an abuse of process for a plaintiff in a negligence action to attempt to argue he was wrongfully convicted when the conviction has not been set aside on appeal: see Wernikowski v. Kirkland, Murphy & Ain (1999), 50 O.R. (3d) 124 (C.A.), at p. 138, leave to appeal to S.C.C. dismissed (2000), 145 O.A.C. 398; Folland, at para. 100.

[157] Where an accused is convicted and later tries to sue his defence counsel for negligence (with a necessary corollary of establishing that “but for” the negligence of his counsel he would not have been convicted), that may be viewed as a collateral attack on the conviction if it requires the re-litigation of the criminal charges that have not been overturned: see Harris v. Levine, 2014 ONCA 608, at paras. 7-8, leave to appeal to S.C.C. refused, 2015 CarswellOnt 3267. The criminal proceeding is the appropriate forum in which to raise these considerations, not a separate civil proceeding: see Harris, at para. 10, citing Folland, at para. 100. That said, I am not prepared to accept, as a general proposition, that a convicted criminal can never sue his defence counsel for negligence because it would be an abuse of process. Each case must be examined on its own merits.

[158] In this case, the plaintiff might have had to ask the court to re-litigate, or to permit a collateral attack on, his criminal conviction in the “but for” causation and damages analysis, if he had engaged it. He did not, and I will thus not engage in the theoretical exercise now to determine whether it would or could have been an abuse of process for him to have done so.

[159] There is an additional potential for an abuse of process in this case. The plaintiff, through other counsel, [5] brought a motion in the Court of Appeal for a re-hearing claiming that he received ineffective assistance from his appeal counsel (the defendant in this case). It was argued on the motion that the Appeal was not heard on its merits because of this ineffective assistance (see Exhibit 1, Tab 19). Doherty, Cronk and Watt JJ.A. dismissed this motion on June 26, 2015 and found that “the argument that the Appeal was not heard on its merits because counsel on the Appeal did not provide competent representation has no merit.” The Court of Appeal was also concerned about the timing and process of the motion.

[160] While it could be said that the Court of Appeal has already determined that the defendant was not incompetent and this entire action is an abuse of process for seeking to re-litigate that very question, the reasons of the Court of Appeal on this motion were brief and had procedural components, and might not be considered to be a “judicial finding” of equivalent nature to those the court in other cases has been concerned about being asked to impeach: see Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 46, relied upon by the defendant.

[161] It is not necessary for me to determine that the plaintiff’s prior motion renders this action an abuse of process because of my earlier findings that the defendant was not negligent. However, the outcome of that motion does provide additional support for the conclusion that the defendant was not negligent or incompetent in his handling of the Appeal.

Disposition and Costs

[162] For these reasons, the action is dismissed.

[163] If the parties are unable to reach agreement on costs, the defendant may make written costs submissions (to be accompanied by a costs outline) within 30 days. The plaintiff may make written responding submissions within 30 days thereafter [6]. The defendant may make brief written reply submissions, if so advised, within 15 days thereafter. All submissions should be served on the opposing parties and delivered to my attention at Judges’ Reception, Superior Court of Justice at 361 University Avenue (Room 106), Toronto, Ontario M5G 1T3.

Kimmel J.

Released: July 24, 2019

COURT FILE NO.: CV-14-495804 DATE: 20190724

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Themistocles Kyriakopoulos Plaintiff – and – Gregory Lafontaine Defendant REASONS FOR decision Kimmel J.

Released: July 24, 2019

Footnotes:

[1] Mr. Kyriakopoulos is confined to a wheelchair. He has degenerative multiple sclerosis and associated conditions, which made it difficult for him to conduct the trial himself. Special permission was requested and granted at the outset of the trial for his wife to sit with him at the counsel table, to assist him with documents and other materials that he needed access to, and to participate as his agent in reading out prepared submissions and in the questioning of the defendant during his testimony. She was exempted from the order excluding witnesses made at the outset of the trial so that she could participate for this purpose (and was only asked to leave when the plaintiff was being cross-examined about specific events that she was involved in after the Appeal that related to the limitations defence).

[2] Various transcripts of the recording of the Appeal proceedings were tendered into evidence. None of them are perfect verbatim transcriptions. I find the most reliable and complete one to be the one that the defendant edited and that was marked as Exhibit “6” at the trial, and that is the one that I have had regard to.

[3] Mr. Scott and Detective MacCallum were the sub-affiants whose testimony supported the original search warrants. They were cross-examined at the preliminary inquiry and the transcript of their testimony at the preliminary inquiry was entered into the record at trial by agreement of the parties.

[4] During this hearing the trial judge concluded that even without this “tainted” evidence, there was sufficient support for the search warrant, and he found it to have been valid and found that the arrest of the plaintiff and the searches of the plaintiff and his storage locker and car incidental to that arrest were not in breach of s. 8 of the Charter. This is found at pp. 16-17 of the trial decision at Exhibit 1, tab 5. See R. v. Garofoli, 1990 SCC 52, [1990] 2 S.C.R. 1421.

[5] Mr. McLean from Ottawa, who the plaintiff has since sued in Small Claims Court for alleged negligence.

[6] Since the plaintiff was self-represented, I have not required a costs outline from him. However, if the plaintiff has any assessable legal costs of this action arising from the various counsel who represented him or who were advising him on limited retainers, he may submit a costs outline detailing those amounts if he wishes to do so.