Superior Court of Justice

COURT FILE NO.: CV-15-541297

DATE: 2020-12-22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GEORGE ARGYROPOULOS Plaintiff

– and –

JEAN-CLAUDE RIOUX, MARK ANTHONY MACNEILL and BRAUTI THORNING ZIBARRAS LLP Defendants

COUNSEL: G. Joseph Falconeri and Bryan D. Rumble, for the Plaintiff C. Kirk Boggs, for the Defendants

HEARD: November 18, 2020

REASONS for Judgment

J.E. FERGUSON J.

INTRODUCTION

[1] The defendants seek summary dismissal of the plaintiff’s action against them. The plaintiff opposes the summary judgment motion on the basis that there are genuine issues for trial with respect to liability, causation, and damages.

[2] Whereas the defendants have provided a detailed analysis of the evidence and their positions, the plaintiff has tackled this motion in broad strokes without making comprehensive submissions as to why the claim should not be dismissed on a summary basis.

[3] Summary judgment is granted. These are the reasons.

LAW

[4] The court’s jurisdiction to grant summary judgment is set out in r. 20 of the Rules of Civil Procedure.[^1] Pursuant to r. 20.04(2)(a), the court shall grant summary judgment where there is “no genuine issue requiring a trial”. This language is mandatory, meaning summary judgment must be granted in such circumstances.[^2] In making this determination, the court shall consider the evidence submitted by the parties. The court may weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence.[^3]

[5] The Supreme Court’s decision in Hryniak v. Mauldin “eased the requirements for summary judgment” in Ontario.[^4] The controlling principle is proportionality, and summary judgment must be granted unless the added expense and delay of trial is necessary for a fair and just adjudication of the matter.[^5] A full appreciation of the evidence and issues by way of a trial is no longer a prerequisite.[^6] Rather, the motion judge need only be confident that she can find the necessary facts and apply the relevant legal principles on the basis of the record before her in order to fairly resolve the dispute.[^7]

[6] On a motion for summary judgment, the moving party bears an evidentiary burden to show that there is no genuine issue requiring a trial.[^8] Once the moving party has discharged his burden, it shifts to the responding party to prove that his claim has a real chance of success.[^9] Pursuant to r. 20.02(2), a responding party may not rest solely on allegations or denials in their pleadings, but must set out, through admissible evidence, specific facts showing there is a genuine issue requiring a trial.[^10] Nor is the responding party entitled to rely on the possibility that more favourable facts may develop;[^11] he must put his “best foot forward”.[^12]

[7] The plaintiff submits that the following caution was set out by the Ontario Court of Appeal on Hryniak in Mason v. Perras Mongenais:[^13]

Before concluding, I would add one further observation. The motion judge spent considerable effort in his reasons describing what he believed to be the “culture shift” mandated by the decision in Hryniak. In particular, he appears to adopt the view that, not only are trials not the preferred method for the resolution of claims, they should be viewed as the option of last resort. The motion judge proceeds from this view to his conclusion, at para. 33:

The shift required is an understanding that judges will be deciding cases summarily as much as possible to avoid the expense and delays of the trial process that put civil justice beyond the reach of most Canadians.

With respect, the culture shift referenced in Hryniak is not as dramatic or as radical as the motion judge would have it. The shift recommended by Hryniak was away from the very restrictive use of summary judgment, that had developed, to a more expansive application of the summary judgment procedure. However, nothing in Hryniak detracts from the overriding principle that summary judgment is only appropriate where it leads to “a fair process and just adjudication”: Hryniak at para. 33. Certainly there is nothing in Hryniak that suggests that trials are now to be viewed as the resolution option of last resort. Put simply, summary judgment remains the exception, not the rule.

[8] Based on the evidence before the court there is no genuine issue requiring a trial. In concluding this I have weighed the evidence, evaluated credibility and have drawn what I believe to be reasonable inferences from the evidence. Summary judgment leads to a fair process and just adjudication. The added expense and delay of trial are not necessary in this case.

FACTS

[9] The current action stems from a previous action initiated by the plaintiff. In that case, the plaintiff alleged that a Toronto Transit Commission (“TTC”) escalator at Downsview Subway Station stopped without warning on June 27, 2007. The plaintiff was riding the escalator at the time and this sudden stop caused him to injure his back (the “Incident”).[^14] He claimed to have sustained soft tissue injuries as a result of the Incident.[^15] There were no independent witnesses.[^16]

[10] On April 7, 2008, the plaintiff commenced an action against the TTC claiming more than $3 million in general and special damages, plus punitive and exemplary damages for injuries arising out of the Incident.[^17] The plaintiff argued the TTC breached its duty of care by failing to maintain the escalator in a condition that was reasonably safe for its users.

[11] When the statement of claim was issued, the plaintiff was self-represented.[^18] The plaintiff subsequently retained Donald Brown as solicitor of record.[^19]

[12] Mr. Brown retained a forensic account, Ronald Smith, to prepare an expert report on the plaintiff’s potential past and future income loss as a result of the Incident. On March 9, 2009, based on instructions provided to him, Mr. Smith produced a report that assumed that the plaintiff could no longer work the overtime hours required of a law clerk and would have to retire early.[^20]Mr. Smith estimated the plaintiff’s loss of income in the range of $521,600 to $1,719,000.[^21]

[13] Shortly thereafter, the plaintiff served a Rule 49 offer to settle on the TTC in the sum of approximately $789,000 plus costs.[^22]

[14] The plaintiff’s retainer with Mr. Brown terminated sometime in 2009, when Mr. Brown was suspended from practicing law.[^23] In December of 2009, Mark MacNeill at Brauti Thorning Zibarras LLP was retained by the plaintiff on a contingency fee basis.[^24]

[15] The parties participated in a mediation on January 29, 2010.[^25] At the mediation, the TTC vigorously denied any liability and made it clear that it was not going to make an offer to settle.[^26]

[16] Following the mediation, Mr. MacNeill’s associate, Jean-Claude Rioux, joined the file.[^27]

[17] A pre-trial was held before Justice Stewart on October 7, 2013.[^28] Justice Stewart advised the plaintiff that he had an uphill battle with respect to both liability and damages.[^29] She stated that the matter was not worth much and fell “into the nuisance category”.[^30] She also said that there was risk on both sides.[^31]

[18] Immediately after the pre-trial, the plaintiff met with Mr. Rioux, who told him that he thought the case had no better than a 50/50 chance. Mr. Rioux advised the plaintiff that he was not surprised by Justice Stewart’s assessment[^32] and recommended he cut his losses and not go to trial.[^33]The plaintiff said that he knew what he was doing and wanted to proceed to trial.[^34]

[19] On October 7, 2013, the TTC served an offer to dismiss the action in exchange for the plaintiff paying almost $46,000 in legal costs and disbursements.[^35]

[20] On October 23, 2013, the defendants wrote a detailed letter to the plaintiff advising him not to proceed to trial.[^36]There were also telephone calls and emails between them. The plaintiff rejected their recommendations to seek a dismissal without costs. The defendants also sought instructions to serve a Rule 49 offer to dismiss the action without costs, but the plaintiff did not provide those instructions and directed the defendants to proceed to trial.[^37]

[21] In preparation for trial, the defendants requested an updated report from Mr. Smith, which reflected developments with respect to the plaintiff’s recovery and income since 2009. By this time, the plaintiff had started a job as a hearing officer with the Ontario government. The report was to consider the plaintiff’s new employment and information about his pension. Mr. Smith produced a report premised on the idea that the plaintiff would be able to continue working to a normal retirement age but not as a law clerk due to the more intensive hours required. Mr. Smith estimated a net economic loss of $220,000 according to this theory.[^38]

[22] A jury trial took place from November 25 to December 5, 2013 before Justice Firestone.[^39] On December 5, 2013, the jury dismissed the action, finding no liability on the part of the TTC.[^40] General damages were assessed at $2,583 and treatment expenses were assessed at $10,000. No past loss of income was assessed.[^41]

[23] Justice Firestone subsequently ordered the plaintiff to pay the TTC $68,702.99 for costs and disbursements.[^42] The plaintiff settled the costs award for $50,000 all inclusive.[^43]

[24] On November 25, 2015, the plaintiff commenced this professional negligence action against the defendants in relation to their handling of his action against the TTC.[^44]

THE SUBMISSIONS

The Plaintiff

[25] The plaintiff submits that the defendants breached the standard of care in two related ways and that this raises a genuine issue for trial:

(i) The defendants failed to advise the plaintiff that his loss of income claim was potentially worth significantly less than he had been led to believe as a result of the second report produced by Mr. Smith; and

(ii) The defendants failed to get instructions from the plaintiff prior to revising and then withdrawing his future loss of income claim.

[26] The plaintiff also submits that a trial is necessary to determine whether the breaches of the standard of care caused the plaintiff’s damages and to determine whether the plaintiff suffered damages as a result of the defendants’ negligence.

The Defendants

[27] The defendants submit that none of the plaintiff’s allegations in the statement of claim withstand scrutiny. They categorize the allegations as follows:

(a) The defendants obtained a second economic loss report from Mr. Smith without consulting the plaintiff;

(b) The defendants abandoned the claim for loss of future income during the trial without the plaintiff’s consent;

(c) The defendants failed to lead evidence from witnesses who could have assisted with the damages claim; and

(d) The plaintiff would not have proceeded to trial if he had known the future loss of income claim would be abandoned.

[28] The defendants’ state that the first three allegations relate to how the damage claims were presented at trial and have no factual basis. However, and probably more importantly, even if they were true, the defendants submit that there is no legal basis for a finding of liability against them because the jury dismissed the plaintiff’s liability claim in its entirety. Therefore, whether the plaintiff’s damages assessment was $3,000 or $300,000, his judgment entitlement would still be zero. Accordingly, causation cannot be made out.

[29] The defendants submit that the plaintiff’s admissions at his examination for discovery and related documentation reveal that his assertions about the second report and the loss of income claim are without merit.

[30] With respect to the plaintiff’s allegation that he would not have proceeded to trial if he had known that his future loss of income claim would be abandoned, the defendants submit that the plaintiff’s own evidence is clear. Even when he knew the trial had not gone well and that no future loss of income was being put to the jury, he did not want to settle because he would never pay any amount to the TTC. He knew the risks of proceeding to trial, namely that he could lose on liability and his claims could be assessed in the de minimis range, as they ultimately were. He also knew that his best pre-trial scenario was a dismissal without costs, which the TTC never agreed to. In any event, he never gave such instructions, even when things “tanked” for him during his cross‑examination. He wanted to go to judgment because there was a chance he would win – even a small amount.

[31] The plaintiff now argues that he might have done things differently or achieved a better result on costs if not for the defendants’ actions. However, he presented no evidence that the TTC would have compromised. The defendants submit that the TTC took a scorched earth approach at every point in the litigation, never offering to pay anything to the plaintiff or walk away from costs.

[32] Additionally, the evidence does not support a finding that the decision to abandon the future loss of income claim was made before mid-trial. This was the plaintiff’s original position, which was established during cross-examination in this action and turned out to be factually untrue.

[33] At this point, I must comment that the defendants have left no stone unturned in setting out the evidence with great specificity, providing detailed references to the evidence from discoveries, their retainer with the plaintiff, and the from the trial against the TTC. Had this not been done so methodically, this decision would not have been as easy to make.

THE EVIDENCE

[34] The defendants have given a thorough and detailed presentation of the evidence provided at the examination for discovery and in other materials. I must review the evidence with similar care, as counsel for the defendants submits that this matter can be dealt with through this summary process. I agree. A trial is not required.

[35] The plaintiff’s first allegation is that the defendants failed to advise him that his loss of income claim was potentially worth significantly less as a result of the second report produced by Mr. Smith. The plaintiff asserts that he would not have proceeded to trial if he thought he could get very little for this claim. The defendants submit that the plaintiff is suggesting that the $220,000 was not worth pursuing.

[36] At mediation, the TTC denied liability and damages and clearly established that it would not be making any offer to settle. At his discovery, the plaintiff said that this did not change his opinion of his case:

Q262: Is it fair to say that, at the mediation, the TTC vehemently denied there was any basis for a finding of liability, or that you had suffered any damages, and made it very clear it was not prepared to pay you any amount at all to settle the action?

A: Correct.

Q263: Was it your expectation, going into the mediation, that there would be an offer sometime made to you?

A: Sure.

Q264: Alright. So, did this… did the TTC’s hardline position in relation to your claim come as a surprise to you at the mediation?

A: No.

Q265: Okay did it change in any way your perception of your case, their response to your claim?

A: No.

[37] Justice Stewart also provided the plaintiff with her view of the case at the pre-trial. She told the plaintiff that he had by far the more difficult case and impressed upon him the possibility that the TTC might pursue costs. At his discovery, the plaintiff admitted that Justice Stewart had told him that the case fell into the nuisance category, and that he understood this to mean that it was probably not worth very much:

Q391: And what do you recall about what was said during that meeting in the conference room?

A: Justice Stewart said that there is a risk on both sides, and that the plaintiff will have an uphill climb on both liability and damages.

Q404: This is an email…if you go to the first…the first email that you sent. Now, this is several days later. It is on October 24th you send this email?

A: That is because I got a package from the lawyers on the 23rd.

Q405: We are going to get to that. I’m just still dealing with what Justice Stewart said.

A: Right.

Q406: You say in the middle of that email...

A: M’hmm.

Q407: “…I would appreciate it if the letter to Ms. Broder mentioned what Justice Stewart said at the pre-trial on October 7, 2013, namely there is some settlement value in this matter. The matter falls into the nuisance category. However, Justice Stewart went on to say that the defendants want some costs. She then stated that that is an irresponsible position and waste of the public’s money, given that there is a two‑week jury trial scheduled, which would involve substantial costs. She concluded by stating that there are risks on both sides, but the elements of risk are higher for the plaintiff…”.

Did Justice Stewart say those things during the time you were in the room with the pre-trial?

A: For me to have written it, Mr. Boggs, yes.

Q408: Okay. And what did you understand her to mean when she said the matter falls into the nuisance category?

A: It is not worth much.

Q459: Okay. And then they say at the pre-trial, that Justice Stewart told you that in her view the plaintiff has by far the more difficult case to make out at trial, and that you were not likely to succeed. And they say…I assume on Mr. Rioux’s perception that you were surprised at her view of case, but he was not surprised at her view of the case. Is that accurate? Were you surprised that her view of the case?

A: She did not have all the materials before her. So yes, I was surprised.

Q460: Okay. But Mr. Rioux told you at the time, he wasn’t surprised?

A: Correct.

Q461: Okay. And that Justice Stewart also impressed upon you the possibility the TTC might pursue you for costs, correct?

A: Yes.

Q462: And that is what happened?

A: M’hmm.

Q463: Yes?

A: Yes, sir.

[38] Regarding his perception of the case and the TTC’s position after the pre-trial, the plaintiff gave the following evidence:

Q412: But in spite of her urging, the TTC... but in spite of her urging the TTC to make some offer to you, it wasn't prepared to offer any amount to settle the case, correct?

A: Correct.

Q413: They wouldn't even offer a dismissal without costs, correct?

A: Correct.

Q414: And you weren't prepared to make that offer either, were you?

A: No.

Q415: The only offer the TTC was prepared to make that day was that you pay it some costs, right?

A: Correct, sir.

Q416: And did you know the amount of costs that they were seeking at the pre‑trial?

A: No.

Q417: Is it fair to say that the TTC was playing real hardball with you on this?

A: Correct.

Q418: And why do you think that was?

A: No idea.

Q419: It is fair to say that that approach was no different than the approach it had been taking since the early days of this claim?

A: Fair enough.

Q420: And it is fair to say that you understood that, in all likelihood, nothing was going to change going forward. You either needed to capitulate to the TTC and pay it, or run the risk of proceeding to trial with the additional cost exposure that could result if you were not successful?

A: Fair enough.

[39] Following the pre-trial, the plaintiff met with Mr. Rioux. At his discovery, the plaintiff said that Mr. Rioux advised him at this meeting not to go to trial:

Q464: And that after the pre-trial, you, and he says...Mr. Rioux and Mr. MacNeill speaking for Mr. Rioux, I presume:

"...You asked me what I would do if I was in your situation. I told you that if you were my brother, I would advise you not to go through with this trial and cut your losses to the greatest extent possible, as quickly as possible...".

That accurately reflects what he told you?

A: At lunch, yes.

[40] It is clear, therefore, that the plaintiff had been told and was aware that his claim likely fell within the nuisance category. His claim for income loss was clearly rejected by Justice Stewart and he was told that the TTC could pursue him for costs. The plaintiff also understood the risk that, even if he succeeded on liability, any award he received would be minimal.

[41] The TTC later served an offer to settle that would have required the plaintiff to pay $5,000 in fees and disbursements to be assessed with a total of about $46,000.00. Justice Stewart advised the plaintiff that if the defendants were given instructions to attempt to dismiss the action without costs she would put the TTC under pressure to agree. However, the plaintiff never gave those instructions.

[42] The defendants wrote a letter to the plaintiff setting out their views and recommendations:

There will be evidence in the record based on which a reasonable trier of fact could find that the defendant is not liable. Your odds of success at trial are certainly no better than 50% based purely on the very real possibility that the defendant might be found not to be liable.

Another problem for case is the nature of your injuries. People who have not either suffered from chronic pain or watched a loved one or friend suffer from chronic pain are often (perhaps understandably) skeptical about chronic pain. You have a very supportive family doctor and a charming spouse, but there is nonetheless a possibility that the trier simply will not accept your complaints as genuine. There is a risk of a nil award even if the trier of fact finds some liability on the TTC.[^45]

[43] The plaintiff admitted that he understood this letter to say that there was a risk he would not be successful at trial and that, even if he won, he might receive no or minimal damages:

Q454: Okay, all right. And this letter is written to outline their recommendation in writing, which is for you to provide instructions and consent to a dismissal without costs, and serve a Rule 49 offer to that effect, correct?

A: Correct.

Q455: Okay. And it is fair to say that in the letter, they outline under the background section the issues that they had experienced in dealing with your claim from the time that they took it on.

"...When we took over the carriage of this action, your case was not in good shape...".

And then they outline what they had done in terms of liability, and the fact that there were issues with respect to proving liability on your behalf if you proceeded to trial, correct?

A: Yes, sir.

Q456: And then they very clearly state at the second-last paragraph in that sub‑heading background:

"...There will be evidence in the record, based on which a reasonable trier of fact could find that the defendant is not liable, your odds of success at trial are certainly no better than 50 percent based purely on the very real possibility the defendant might be found not to be liable...".

And that was very clearly told to you?

A: Yes, it was.

Q457: And you understood it?

A: Yes, I did.

Q458: And another problem...and then they go on:

"...Another problem for [it should be 'your case'] is the nature of your injuries. People who have not either suffered from chronic pain or watched a loved one or friend suffer from chronic pain are often perhaps understandably skeptical about chronic pain. You have a very supportive family, doctor and a charming spouse, but there is nonetheless a possibility the trier simply will not accept your complaints as genuine. There is a risk of a nil award even if the trier of fact finds some liability on the TTC...".

So, you understood, sir, what they were saying is that even if you proceed to trial and there is a finding of liability, you might receive no or almost no damages for your claims?

A: That is correct.

[44] After the letter from the defendants, the parties exchanged emails relating to settlement. Initially, the plaintiff instructed the defendants to make an offer to dismiss the action without costs. He then rescinded that instruction, despite being cautioned that liability is a gamble and that he should attempt to limit his risk. The plaintiff subsequently said that he would accept money for his family under the Family Law Act[^46] and nothing for himself, before saying that he would accept $60,000 all inclusive. Mr. Rioux told him that he would be better off making no offer.

[45] The plaintiff’s discovery evidence on this issue is as follows:

Q514: What was your understanding of why they were recommending to you that you serve an offer to settle to go without costs? What was the benefit to you?

A: It would be over. That was the benefit.

Q515: Okay. And if they didn't accept... if the TTC didn't accept the offer, did you have any understanding that it might have a benefit to you in the event the case went to trial?

A: Yes.

Q516: And what was that understanding?

A: Well, a judge would look into, or take into account, all offers to settle, right? So, it would go to the issue of costs.

Q517: And the fact that you were reasonable and they weren’t?

A: Right.

Q518: Okay. And then you say...and then after Mr. Rioux provides his further comments, then on October 26th, at 8:51, you write:

"...Thank you, Mark, for your call late morning yesterday. Thank you, JC, for your e-mail below...".

And then we will get to what is below in a second, but what do you recall if anything about your call with Mark of the late morning of October 25th?

A: I don't have a recollection.

Q519: Okay. None at all?

A: No.

Q520: Okay. And then you go on to say:

"...I am not prepared to go out on a dismissal of the action on a without costs basis. Mr. Gee-Pannu (phon.) offered the recommended offer to settle at the mediation that you were recommending the plaintiffs make at this time. The offer to settle that I am instructing you to make shall provide that the TTC pay the FLA claimants each child $10,000 and clear $20,000 without costs, and I will agree to my claim being dismissed on a without costs basis...".

Why did you want your counsel to make an offer to settle the FLA claims for the amounts set out in your e-mail, and that your claim be dismissed on a without costs basis?

A: I can't remember the rationale back then.

Q521: Was the total amount...what was the total amount at that time would have been?

A: Sixty.

Q522: $60,000?

A: Right, four kids.

Q523: And that money would not have gone to you?

A: No.

Q524: So, you would have gotten nothing?

A: M'hmm.

Q525: Is that a yes?

A: Yes, sir.

[46] The plaintiff explained his decision to withdraw his instructions to offer to go out without costs at his discovery. He stated that he still had problems with his back as a result of the Incident, and felt that it was worth the risk to pursue the possibility that he would be successful at trial:

Q499: Okay. And then at 7:09 a.m. the following morning, you write:

"...Dear sirs, I would appreciate it if you do not send out the Rule 49 offer to settle until we have spoken. I am having trouble as AR Morris concluded in his report, amongst other things, that Giffin Koerth incorrectly concluded that the escalator met the required safety standard. Thanks. Regards, George...".

So, what changed overnight?

A: Well, I think I reflected over...because there were injuries, and I still have the injuries with my back. My back has never been the same. And from what I see here, I have read the report, and I thought, "Hey, there was a chance here".

Q500: Right. So, you wanted to take the risk and go forward to trial?

A: Absolutely.

Q503: “…A trier of fact might agree with our expert. A trier of fat might agree with their expert. That is why your odds of success are no better than 50/50. It is like betting a lot of money on the flip of a coin…”.

A: Right.

Q504: He was telling you that this was a very…this was a risky case for you.

A: And I understood that.

[47] The defendants submit that the plaintiff was aware that he might fail at trial, particularly because his lawyers and a judge had communicated to him that his case was a difficult one to win. He also knew that he might nevertheless be awarded limited damages and be subject to a significant costs award. Despite advice to the contrary, he insisted on proceeding to trial, believing he would prevail on liability.

[48] The plaintiff also claims that the defendants commissioned a second report from Mr. Smith without notice to him. The defendants provided evidence that a second report was necessary to reflect how the evidence had evolved since 2009. The defendants’ factum sets out the following:

[35] The plaintiff alleges that the defendants commissioned a second report from Mr. Smith without any notice to him, which substantially and materially altered his evidence at trial.[^47]There is no merit to this argument as the evidence indicates that the plaintiff was well aware that Mr. Smith was preparing an additional report.

[36] In August 2013, it became apparent to the defendants that the assumptions underlying Mr. Smith’s 2009 report were not credible and would not be accepted by a jury.[^48] The initial Smith report presented a loss of income scenario which involved the plaintiff stopping work early because of the Incident, and suffering a loss of more than $1 million.[^49]However, in reality, the plaintiff had moved into an easier government job with a pension.[^50]

[37] Accordingly, Mr. Rioux asked Mr. Smith to prepare an updated report based on the realistic assumption that the plaintiff only lost the ability to do the more demanding law clerk job with the opportunity to earn overtime.[^51]

[38] On August 14, 2013, Mr. MacNeill sent an email advising the plaintiff that the forensic accountant (Mr. Smith) would be preparing a supplementary report, and to that end, he asked the plaintiff to provide financial information from his employer.[^52]The plaintiff replied that he would attend to obtaining as much of this information as possible.[^53]

[39] On discovery, when faced with the above email, the plaintiff admitted that he was aware Mr. Smith was preparing a “supplementary report”.[^54]However, the plaintiff asserts that this meant that the report would be “further to the first report”, but not that a “new report was being obtained”.[^55]The plaintiffs’ interpretation is illogical – a “supplementary” report is equivalent to a “new report”.

[40] The plaintiff understood that Mr. Smith’s second report would update the numbers contained in the original report to take into account the realities with respect to the plaintiff’s recovery and income.[^56]The plaintiff did not ask the defendants any questions about why the report was needed, nor did he ask to review the report at any time.[^57]

[41] Finally, the plaintiff admitted that the allegation that the “second report from Mr. Smith substantially and materially altered his evidence at trial” was a bald pleading and not accurate.[^58]

[42] The plaintiff stated at his discovery that he was advised that a supplementary report was being prepared but that he did not understand that this meant a new report would be produced. He also admits to providing information to Mr. Smith:

Q149: "...Unbeknownst to the plaintiff, the defendants commissioned a second report from Mr. Smith. They did this without notice to the plaintiff, and then proffered this evidence at trial, again without advice to or instruction from the plaintiff herein which substantially and materially altered the plaintiff's evidence at trial...".

I just want to be clear what your evidence is. Is it your evidence in these proceedings that you didn't know at all about the second report from Ron Smith that it was obtained without any notice to you?

A: I was told by Mr. MacNeill, in August, the middle of August…precise August 14th, in an e-mail that there would be a supplementary report. What that means to me is that he would be updating the numbers...that is, Mr. Smith would be updating the numbers contained in his original report of March 9, 2009. I was never told by Mr. MacNeill, Mr. Rioux or anyone from Brauti Thorning & Zibarras that they were obtaining a new report amending or altering the assumptions and methodology contained in the original report. And that is my evidence on that point.

Q150: Okay.

A: And that was never done.

Q151: Okay. So, you understood there would be a second report; you just didn't understand that the assumptions underlying it would change?

A: No, what I understood was there would be a supplementary report. That doesn't mean a new report. It means further to the first report, we would be updating the numbers. That is what that means.

Q152: You would be updating the numbers to take into account the realities of what had occurred since 2009 with respect to your recovery and income?

A: Right. They asked me for...

Q153: Is that...

A: That is fair enough.

Q159: How did the second report from Mr. Smith substantially and materially alter your evidence at trial?

A: I don't think that is accurate, because...you know what? It is not accurate, because…

MR. RUMBLE: It is a bald pleading.

Q160: MR. BOGGS:

MR. RUMBLE: You can bring them all up, Counsel...

THE DEPONENT: That is not accurate.

MR. RUMBLE: Stop.

Q272: To refer you to an e-mail from Mr. MacNeill, dated August 14th, 2013 at 3:46 p.m.

A: Right.

Q273: And he writes:

"...George, JC continues the trial preparations, he met with your forensic accountant he needs the following..."

And then:

"...I will also need George to get us copies of the following...".

A: M'hmm.

Q274: And he lists several things, and then he says:

"...We need this stuff for the forensic accountant as foundational evidence for a supplementary report...".

A: M'hmm.

Q275: And in response to that e-mail, you reply the same day that you would attend to getting as much of that information as possible, correct?

A: And I supplied it all.

Q276: So, it is fair to say that as of this time, you knew your lawyers were getting a…

A: They were getting a supplementary report, as the e-mail says.

Q277: Okay. And you understood that they felt they needed that report to properly present all your potential claims at trial?

A: I don't know.

Q278: And you knew there would be a cost associated with getting that report?

A: Yes.

Q279: Okay. And you didn't ask any questions about why the report was needed, or what the cost of the report would be, or what its potential costs would be, did you?

A: No.

[43] The second forensic accounting report is partially based on information provided by the plaintiff. Mr. Rioux contacted the plaintiff in 2013 to request updated employment information. The plaintiff knew that he was providing information to Mr. Smith and that a supplementary report would be prepared for trial. Moreover, the plaintiff is incorrect in stating that the defendants ordered a second report after the pre-trial and before the trial; it was ordered prior to the pre-trial.

[44] The plaintiff claims that the second report had a significant impact on this evidence at trial. However, at his discovery, the plaintiff admitted that he has not seen the second report:

Q679: Are you saying, sir, that you would have accepted...first of all, are you saying that you would have accepted the TTC's offer and paid them $46,000 before trial if you knew that there was no future loss of income claim?

A: That is not what I said at all.

Q680: Okay.

A: I would never have accepted to pay when I am hurt, sir.

Q681: All right. Thank you.

A: I am the one injured, and I am dishing out money.

Q168: All right. Going into the trial, I know that you say that you didn’t give instructions for your counsel to get a loss of income report from Mr. Smith that presented a new theory of your loss of income. That is what you have said?

A: That is the truth.

Q169: All right. It is your evidence, that is fine.

A: Fine.

Q170: But you would agree with me that the report that was prepared by Mr. Smith…

A: M’hmm.

Q171: …did present a theory for a future loss of income claim on your behalf?

A: I haven’t reviewed the second report, sir.

ANALYSIS

[45] The plaintiff’s evidence shows that he was steadfast in his position that he, as the injured party, would not pay any amount to the TTC. In spite of that, he now wishes the court to believe that he would have abandoned his case if he had known what was contained in the updated economic report. But in fact, he did not even ask to see the report.

[46] The plaintiff understood that a supplementary future loss of income report was needed to update his loss of income claims for a proper presentation to the jury. He knew that he could easily lose on liability and was in any event unlikely to get significant damages. Additionally, the plaintiff was well aware that the TTC was playing hardball and was unlikely to consent to a dismissal without costs. Unfortunately, the plaintiff was unwilling to take his lawyers’ advice to offer to consent to such a dismissal and hope the TTC would accept it. He subsequently made a strange offer that only his wife and children would get damages.

[47] I agree with the defendants. The plaintiff’s assertion that he would not have gone to trial if he had seen the supplementary report is without merit. The only inference from all the evidence is that the report would not have changed the plaintiff’s position. He wanted his day in court regardless of the risks and would only have consented to dismiss the action if the TTC paid him something. The TTC was unwilling to do so, making the trial inevitable.

[48] The defendants submit, and I agree, that there are two other problems with the plaintiff’s evidence. First, he provided no expert opinion. There is no opinion evidence that the defendants breached the standard of care in not specifically discussing the exact numbers in the supplementary report with the plaintiff. Failure to present such an opinion in this case is fatal to the claim.

[49] Second, the plaintiff has presented no evidence to support a finding that the TTC would have accepted a smaller amount to walk away or have consented to a dismissal without costs. On a motion for summary judgment, both sides must lead trump or risk losing. The court is entitled to assume that all of the evidence that will be available at trial is before it for the purposes of evaluating the merits of the claim.

[50] To succeed, the plaintiff must prove that the standard of care has been breached, that the breach has been causative of a loss, and that the plaintiff has actually suffered a loss. None of those this has been proven here. It is no answer to say that the evidence will be forthcoming at trial.

[51] Accordingly, summary judgment is granted.

[52] If the parties cannot agree on costs, I am prepared to receive brief submissions from the defendants by January 25, 2021 and responding submissions from the plaintiff by February 16, 2021. The defendants’ response, if any, are to be provided by February 23, 2021. The submissions may be sent by email to my assistant at Lorie.Waltenbury@ontario.ca.

J.E. Ferguson J.

Released: December 22, 2020

COURT FILE NO.: CV-15-541297

DATE: 20201222

ONTARIO

SUPERIOR COURT OF JUSTICE

GEORGE ARGYROPOULOS Plaintiff

– and –

JEAN-CLAUDE RIOUX, MARK ANTHONY MACNEILL and BRAUTI THORNING ZIBARRAS LLP Defendants

REASONS FOR JUDGMENT

J.E. Ferguson J.

Released: December 22, 2020

[^1]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, at r. 20 (“Rules”). [^2]: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 (“Hryniak”), at para. 68. [^3]: Rules, r. 20.04(2.1); New Solutions Extrusion Corporation v. Gauthier, 2010 ONSC 1037 (“New Solutions”), at para. 10, aff’d, 2010 ONCA 348. [^4]: Sweda Farms v. Egg Farmers of Ontario, 2014 ONSC 1200 (“Sweda Farms”), at para. 23. [^5]: Sweda Farms at paras. 32-33. [^6]: Sweda Farms at paras. 4 and 56. [^7]: Sweda Farms at paras. 49-50. [^8]: New Solutions at para. 12. [^9]: New Solutions at para. 12. [^10]: New Solutions at para. 12; Sweda Farms at para. 26. [^11]: Hryniak at para. 58; New Solutions at para. 12. [^12]: New Solutions at para. 12; Sweda Farms at paras. 26 and 32. [^13]: Mason v. Perras Mongenais, 2018 ONCA 978 at paras. 43-44. [^14]: Transcript of the Plaintiff’s Examination for Discovery at pp. 5-6, qq. 19-22 (“Plaintiff’s Discovery Transcript”); Motion Record (“MR”), Tab 5 at pp. 30-31. [^15]: Plaintiff’s Discovery Transcript at p. 6, q. 26; MR, Tab 5 at p. 31. [^16]: Plaintiff’s Discovery Transcript at p. 6, q. 23; MR, Tab 5 at p. 31. [^17]: Plaintiff’s Discovery Transcript at p. 12, qq. 59-60; MR, Tab 5 at p. 37; MR, Tab 6 at pp. 203-216; Amended Statement of Claim dated February 22, 2012 in Plaintiff’s Affidavit of Documents (“Plaintiff’s AOD”), Tab 27. [^18]: Plaintiff’s Discovery Transcript at p. 12, q. 65; MR, Tab 5 at p. 37. [^19]: Plaintiff’s Discovery Transcript at p. 13, q. 70; MR, Tab 5 at p. 38. [^20]: Plaintiff’s Discovery Transcript at pp. 13-14, q. 73; MR, Tab 5 at pp. 38-39; Income Loss Report of Ronald Smith & Associates Inc. dated March 9, 2009 (“2009 Report”) in Plaintiff’s AOD, Tab 2; MR, Tab 7 at pp. 218-232. [^21]: 2009 Report in Plaintiff’s AOD, Tab 2; MR, Tab 7 at p. 223. [^22]: Plaintiff’s Discovery Transcript at p. 18, q. 90; MR, Tab 5 at p. 43; Correspondence from Donald J. Brown to Guri Pannu regarding Rule 49 Offer to Settle dated March 19, 2009 in Plaintiff’s AOD, Tab 3; MR, Tab 8 at p. 233. [^23]: Plaintiff’s Discovery Transcript at pp. 19-20, qq. 98-101; MR, Tab 5 at pp. 44-45. [^24]: Plaintiff’s Discovery Transcript at p. 53, q. 243; Plaintiff’s Discovery Transcript at p. 22, q. 111; MR, Tab 5 at pp. 47 and 78. [^25]: Plaintiff’s Discovery Transcript at p. 54, q. 251; MR, Tab 5 at p. 79. [^26]: Plaintiff’s Discovery Transcript at p. 56, q. 262; MR, Tab 5 at p. 81. [^27]: Plaintiff’s Discovery Transcript at pp. 56-57, q. 266; MR, Tab 5 at pp. 81-82. [^28]: Plaintiff’s Discovery Transcript at pp. 80-81, qq. 371-372 and 378; MR, Tab 5 at pp. 105-106. [^29]: Plaintiff’s Discovery Transcript at p. 83, q. 391; MR, Tab 5 at p. 108. [^30]: Plaintiff’s Discovery Transcript at pp. 85-86, qq. 407-408; MR, Tab 5 at pp. 110-111; Email from Mr. Argyropoulos to Mr. MacNeill and Mr. Rioux giving instructions on Rule 49 Offer to Settle dated October 24, 2013 in Plaintiff’s AOD, Tab 162; MR, Tab 9 at p. 238. [^31]: Affidavit of George Argyropoulos at para. 11 in Responding Motion Record, Tab 2. [^32]: Plaintiff’s Discovery Transcript at p. 96, q. 460; MR, Tab 5 at p. 121. [^33]: Letter from Mr. MacNeill and Mr. Rioux to Mr. Argyropoulos re: pre-trial (“Letter”) in Defendants’ Affidavit of Documents (“Defendants’ AOD”), Tab 145; MR, Tab 11 at pp. 241-243. [^34]: Plaintiff’s Discovery Transcript at p. 89, q. 428; MR, Tab 5 at p. 114. [^35]: Plaintiff’s Discovery Transcript at pp. 90-91, qq. 436-439; MR, Tab 5 at pp. 115-116; Offer to Settle of the Defendant faxed October 8, 2013 in Defendants’ Supplementary Affidavit of Documents, Tab 3; MR, Tab 10 at pp. 239-240. [^36]: Letter in Defendants’ AOD, Tab 145. See also Plaintiff’s Discovery Transcript at pp. 93-95, qq. 451-459; MR, Tab 5 at pp. 118-121. [^37]: Plaintiff’s Discovery Transcript at p. 119, q. 556; MR, Tab 5 at p. 144. [^38]: Second Income Loss Report of Ronald Smith & Associates Inc. dated November 13, 2013 in Defendants’ AOD, Tab 547; MR, Tab 12 at pp. 244-262. [^39]: Plaintiff’s Discovery Transcript at p. 129, q. 607; MR, Tab 5 at p. 154. [^40]: Plaintiff’s Discovery Transcript at p. 23, qq. 117-120; MR, Tab 5 at p. 48; Questions for the Jury in Plaintiff’s AOD, Tab 189; MR, Tab 13 at pp. 263-266. [^41]: Plaintiff’s Discovery Transcript at p. 24, qq. 121-124; MR, Tab 5 at p. 49; Questions for the Jury in Plaintiff’s AOD, Tab 189; MR, Tab 13 at p. 265. [^42]: Plaintiff’s Discovery Transcript at p. 26, q. 135; MR, Tab 5 at p. 51; Corrigendum to Costs Endorsement of Justice Stephen E. Firestone in Plaintiff’s AOD, Tab 219; MR, Tab 14 at p. 267 (Argyropoulos v. Toronto Transit Commission, 2014 ONSC 3261). [^43]: Plaintiff’s Discovery Transcript at p. 173, q. 828; MR, Tab 5 at p. 198. [^44]: Plaintiff’s Discovery Transcript at p. 27, q. 139; MR, Tab at p. 52; Statement of Claim in MR, Tab 2 at pp. 7-14. [^45]: Letter in Defendants’ AOD, Tab 145. [^46]: R.S.O. 1990, c. F.3. [^47]: Statement of Claim at para. 11; MR, Tab 2 at pp. 10-11. [^48]: Mr. Rioux’s Discovery Transcript at pp. 21, 23, 50, qq. 120-122, 134, and 259-260; MR, Tab 19(A) at pp. 301, 303, and 330; Mr. MacNeill’s Discovery Transcript at p. 13, q. 58; MR, Tab 20(A) at p. 406. [^49]: Mr. Rioux’s Discovery Transcript at p. 31, q. 175; MR, Tab 19(A) at p. 311. [^50]: Mr. Rioux’s Discovery Transcript at pp. 25-26, qq. 145-146; MR, Tab 19(A) at pp. 305-306. [^51]: Mr. Rioux’s Discovery Transcript at p. 51, qq. 264-265; MR, Tab 19(A) at p. 331. [^52]: Plaintiff’s Discovery Transcript at p. 30, q. 149; MR, Tab 5 at p. 55; E-mail from Mr. MacNeill to Mr. Argyropoulos regarding information needed for forensic accountant: August 14, 2013 in Plaintiff’s AOD, Tab 153; MR, Tab 15 at pp. 268-269. [^53]: Email from Mr. Argyropoulos to Mr. MacNeill in response: August 14, 2013 in Plaintiff’s AOD, Tab 153; MR, Tab 15 at p. 268. [^54]: Plaintiff’s Discovery Transcript at p. 31, q. 151; MR, Tab 5 at p. 56. [^55]: Plaintiff’s Discovery Transcript at p. 31, q. 151; MR, Tab 5 at p. 56. [^56]: Plaintiff’s Discovery Transcript at pp. 30-31, qq. 149 and 152; MR, Tab 5 at pp. 55-56. [^57]: Plaintiff’s Discovery Transcript at p. 59, q. 279; MR, Tab 5 at p. 84. [^58]: Plaintiff’s Discovery Transcript at pp. 32-33, qq. 159 -160; MR, Tab 5 at pp. 57-58.