Court File and Parties

COURT FILE NO.: CV-19-621713 DATE: 2022-04-01 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TIMORO HUSSEIN AGANEH, on her own behalf and as Co-Trustee of the Estate of KULMIYE HUSSEIN AGANEH, IKRAM ALI SAID as Co-Trustee of the Estate of KULMIYE HUSSEIN AGANEH, IKRAM ALI SAID on her own behalf by her litigation guardian Ubah Hussein Aganeh, UBAH HUSSEIN AGANEH, ARAFAT HUSSEIN AGANEH, AMIRAN HUSSEIN AGANEH by his litigation guardian Timoro Hussein Aganeh and DJILAL HOUSSEIN AGANEH Plaintiffs

– and –

FALCONER LLP, JULIAN ROY and SUNIL MATHAI Defendants

COUNSEL: Richard K. Watson, for the Plaintiffs Tim Gleason and Mathieu Bélanger, for the Defendants

HEARD: March 24, 2022

KOEHNEN J.

REASONS FOR JUDGMENT

[1] This is a motion for summary judgment by the defendants to dismiss the claim against them. The defendants say the claim is without foundation, is time barred and should also be barred by principles of abuse of process.

[2] The plaintiffs filed no materials on the motion and sought to adjourn it the morning of the hearing. For the reasons set out below, I declined the adjournment, grant the motion, and dismiss the claim. In my view, the claim is without foundation, is time-barred and runs afoul of the principles of abuse of process. The plaintiffs have failed to raise any evidence or argument to demonstrate that the trial is required in order to resolve these issues.

A. The Adjournment Request

[3] At the outset of the hearing, counsel for the plaintiffs asked to adjourn the motion. Plaintiffs’ counsel first requested the adjournment the day before the hearing by delivering a two-page affidavit setting out the reasons for the adjournment.

[4] In that affidavit, plaintiffs’ counsel explained that he was a sole practitioner, that his office capacity was reduced by 30% due to Covid, that he was unable to work outside of normal business hours as of February 1, 2021, because he took a homeless man into his household and provided care and attention to him during the evenings and on weekends. As a result, Mr. Watson says that since April 2020 he had to focus on handling urgent matters and that nonurgent matters have necessarily been delayed. The lifting of Covid restrictions would now, however, assist him in returning his office to normal operations.

[5] As sympathetic as I may be the challenges facing a sole practitioner during the Covid pandemic and as laudable as I may find giving shelter to a homeless person, I do not find that the reasons advanced warrant an adjournment.

[6] The parties attended before Sanfilippo J. on August 17, 2021 to set a case timetable for this motion. Mr. Watson agreed to that timetable. The case timetable was embodied in an endorsement of Sanfilippo J.

[7] All of the reasons that plaintiffs’ counsel now advances to request an adjournment were present and known to him long before August 17, 2021. He nevertheless agreed to the timetable and agreed to have it be embodied in a judicial endorsement.

[8] Pursuant to the case timetable, the plaintiffs’ responding materials were due on October 22, 2021. When plaintiffs’ counsel delivered no materials, defence counsel wrote to him on October 26, 2021, asking when they could expect materials. Plaintiffs’ counsel responded on November 1, 2021, saying that Covid restrictions would oblige him to amend the timetable and that he would respond in more detail within a day or two. On November 30, 2021, plaintiffs’ counsel undertook to deliver responding materials during the week ending December 10. He never did so, provided no explanation for not doing so and provided no further date to do so.

[9] Although I am not unsympathetic to the challenges of sole practitioners, I note that there are now a wide variety of contracting services available that are designed specifically to provide lawyers for short term assignments to assist sole practitioners or small firms with these challenges.

[10] Plaintiffs’ counsel submits that there is no prejudice to an adjournment. I disagree. On August 17, 2021, this matter was scheduled for a three hour motion returnable on March 24, 2022. Since August 17 those three hours have been unavailable to use for other parties waiting for hearings. There are serious delays in the civil litigation system. Those delays are only exacerbated if parties do not adhere to court ordered timetables or do not make timely requests to amend those timetables.

[11] Case timetables are court orders like any other and are meant to be adhered to. Mr. Watson had ample time since August 17, 2021, to either seek short term help, agree to a new timetable or seek a case conference to amend the timetable. Having failed to do any of this, I am not inclined to grant an adjournment based on reasons that were known when the timetable was agreed to and when the adjournment is requested the day before the hearing, thereby depriving others of the use of valuable court time.

B. Summary Judgment – The Facts

[12] The plaintiffs are the parents and siblings of Kulmiye Hussein Aganeh. [1] Kulmiye died in custody at the Penetanguishene Mental Health Centre in December 2007. The plaintiffs (except the deceased’s father Djilal) retained the defendant law firm Falconer LLP (“Falconers”) to pursue a claim on their behalf and on behalf of the deceased’s estate against the Health Centre and several of its physicians and nurses.

[13] Falconers commenced a civil action and a proceeding before the Human Rights Tribunal of Ontario. From the outset, Falconers advised the family that the probable value of the claim based on the governing jurisprudence was in the range of $130,000 to $180,000. Numerous settlement offers were exchanged which ultimately culminated in an offer by the defendants in the civil claim and the respondents in the human rights complaint to settle both matters for the payment of $205,000. That offer did not apply to the plaintiff Ubah who had, by that time, parted ways with Falconers. Ubah remained free to litigate her own Family Law Act claim. Family members other than Ubah accepted the settlement on September 20, 2016.

[14] Further divisions arose within the family shortly after the settlement was accepted. When the settlement was not completed, the defendants in the original action brough a motion to enforce the settlement. Further complications arose on the motion to enforce as a result of which it was addressed in two stages. In an endorsement dated January 15, 2018, Justice Glustein addressed that portion of the settlement in favour of the family ($100,000). In an endorsement dated September 26, 2019, Justice Sanfilippo addressed the portion of the settlement in favour of the estate ($105,000). Both Justices Glustein and Sanfilippo approved the settlements.

[15] The summary judgment motion before me relates to an action that the family brought against Falconers and two of its lawyers alleging negligence in the handling and settling of the original lawsuit. The action against Falconers was commenced by notice of action on June 11, 2019. Falconers submits that the plaintiffs were aware of the claims they make against Falconers more than two years before June 11, 2019. Falconers also submits that the allegations the plaintiffs raise in the action were considered and dismissed in the endorsements of Justices Glustein and Sanfilippo.

C. Summary Judgment – Legal Principles

[16] Rule 20.04(2) of the Rules of Civil Procedure requires the Court to grant summary judgment if there is no genuine issue requiring a trial. [2] On a motion for summary judgment the court is entitled to assume that no further or better evidence will be available at trial. A respondent to a summary judgment motion must demonstrate that a trial is required to determine the issues at stake. [3]

[17] The plaintiff has not adduced any evidence or legal submission on this motion to suggest that there is a genuine issue that requires a trial to resolve.

(i) The Law on Limitations

[18] Section 4 of the Limitations Act, 2002 [4] provides that no proceeding shall be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

[19] Section 5 of the Limitations Act provides that a claim is discovered on the day on which the person knows (or ought to have known) that injury, loss, or damage has occurred; that the damage was caused by the defendant’s act or omission; and that a proceeding would be an appropriate means to seek to remedy the damages. [5]

[20] When a limitation period defence is raised, the onus is on the plaintiff to show that its claim is not statute-barred, and that the plaintiff behaved reasonably in discovering the facts and bringing the claim. [6]

[21] Limitations defences can be dealt with on motions for summary judgment, especially where there is no issue of discoverability. [7] There are no issues of discoverability here because the plaintiffs were clearly aware of many of the issues about which they complain more than 2 years before the Notice of Action in this proceeding was issued.

[22] When a defendant bases a summary judgment motion on a limitations defence, the evidentiary burden shifts to the plaintiff to prove that the claim was issued within the limitation period or that there is a genuine issue about the limitation period that requires a trial to resolve. [8]

[23] A plaintiff need not have discovered all facts upon which a claim is based for the limitation period to begin running. The limitations period will begin to run “once the plaintiff knows that some damage has occurred and has identified the tortfeasor”. [9]

[24] Similarly, it does not matter if the plaintiff does not appreciate the legal significance of the facts because the principle of discovery applies to knowledge of the facts, not to knowledge of the legal consequences of those facts. Time runs as soon as the claimant is (or ought reasonably to be) aware of the material facts constituting the elements of the cause of action. [10]

[25] Although the defendants raised the limitations issue in the statement of defence which was delivered in late October or early November 2019, the plaintiffs filed no reply, nor have they filed any evidence or made any arguments to suggest that the complaints they are raising were complaints that they discovered less than two years before they issued their notice of action.

(ii) The Law on Abuse of Process

[26] The concept of abuse of process arises here because many of the issues that the plaintiffs raise in the action against Falconers were addressed by Justices Glustein and Sanfilippo when the plaintiffs tried to resist enforcement of the settlement in proceedings before them.

[27] An abuse of process occurs when the court’s process is used in a way that would be manifestly unfair to a party or would otherwise bring the administration of justice into disrepute. [11] One such circumstance arises when litigants relitigate causes of action or issues that have already been decided. Courts have applied the abuse of process doctrine to prevent a party from re-litigating an issue where allowing the claim to proceed would violate principles of judicial economy, consistency, finality, and the integrity of the administration of justice. [12]

[28] In Toronto (City) v CUPE, Local 79, Justice Arbour, explained the principle as follows:

Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that re-litigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the re-litigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality. [13]

[29] Re-litigation should be avoided unless it is necessary “to enhance the credibility and the effectiveness of the adjudicative process as a whole." [14] That need might arise if the first proceeding is tainted by fraud or dishonesty, when previously unavailable evidence conclusively impeaches the original results, or when fairness dictates that the original result should not be binding in the new context. [15] No such evidence or argument was presented to me. On the contrary, the claim relitigates many of the issues that have already been decided by Glustein J. and Sanfilippo J.

D. Summary Judgment - Analysis

[30] The current action seeks damages arising out of the following basic allegations:

i. Falconers continued to act while it was in conflict of interest because differences had arisen between certain family members. ii. The settlement was improvident for the family members and the estate. iii. Falconers did not join Ontario as a defendant in the lawsuit against the Health Centre. iv. Falconers did not bring a Family Law Act claim on behalf of the deceased’s father, Djilal. v. Falconers committed errors in the way it obtained a certificate of appointment of estate trustee for Kulmiye’s estate. vi. Falconers acted on behalf of the deceased’s mother, Ikram Ali Said even though she was under an incapacity. vii. Falconers did not tell the plaintiffs that the settlement was a gross settlement from which legal costs would be deducted before the net amount was distributed to the family.

[31] As noted, the defendants filed no materials on the motion as a result of which the record is uncontested. Given that the evidence the defendants rely on for summary judgment is, for the most part, either evidence from the plaintiffs, is relatively objective evidence about when the plaintiffs were aware of the facts giving rise to their claim or derives from the findings of Justices Glustein or Sanfilippo, I am satisfied that my refusal to grant the plaintiffs an adjournment causes their case no prejudice.

i. Falconers Acted in Conflict

[32] Two potential conflict issues arise. In my view both are time barred.

[33] The first issue arises out of differences between Ubah and the family about the course of the litigation. Ubah took the position before Sanfilippo J. that as soon as she retained new counsel in April 2016 Falconers was in a conflict. [16] If that is the case, any claim against Falconers arising out of that conflict would have become time barred 2 years later in April 2018; well before the claim against Falconers was issued on June 11, 2019.

[34] Simply because Ubah decided to find a new lawyer, however, does not mean there is a conflict in Falconers continuing to pursue the litigation for the rest of the family.

[35] The second conflict arises out of a dispute about who should be the estate trustee. The deceased’s sister was initially appointed as estate trustee in 2010. After Ubah appointed a new lawyer for herself, she commenced an application to be appointed co-trustee. Timoro opposed Ubah’s application. Falconers initially acted for Timoro to oppose Ubah’s application. Ubah’s application was scheduled to proceed before Myers J. for January 12, 2017. Myers J. declined to hear the application because he was of the view that Falconers was in a conflict when acting for Timoro against Ubah, a former client of the firm. As a result, both Ubah and Timoro became aware of that conflict no later than January 12, 2017. At the time Timoro was the sole estate trustee and the litigation guardian for the deceased’s brothers Arafat and Amaran who are therefore also deemed to have become aware of the conflict at that time. In those circumstances, the limitation period would have expired on January 12, 2019, still well before the claim against Falconers was issued.

[36] In addition, during a call on March 15, 2017, Timoro advised Falconers that it was acting in a conflict of interest while representing both herself and Ubah. Ikram was also present on that call. If that were the date conflict came to the parties’ attention, it would still be time barred.

[37] Quite apart from any issue of timing, despite the allegations of conflict of interest that the plaintiffs now raise, on May 25, 2017, Ubah and Timoro opposed Falconers’ motion to remove itself from the record because doing so would prejudice the family. Falconers was nevertheless removed from the record in the civil action.

[38] Even if I were to assume that Falconers were precluded from acting the in the litigation against the Health Centre and its staff because of a conflict between Ubah and Timoro about who should be estate trustee(s), which I do not, I would still grant summary judgment on the conflict issue.

[39] Simply because Falconers was in a conflict does not mean that the plaintiffs have suffered damages as a result of the settlement. No trial is required to determine that issue. To raise an issue that requires a trial in this regard, the plaintiffs would have to at least suggest with evidence or argument that the conflict led Falconers to recommend a settlement that was outside of the range of reasonable settlements for cases like this. The plaintiffs have referred me to no authorities which suggest that the claim was improvidently settled.

[40] In the foregoing circumstances, the claim against Falconers for conflict is unfounded on the record before me and is time-barred.

ii. The Settlement Was Improvident for the Family Members and the Estate

[41] Falconers had advised the plaintiffs early on that the probable value of their claim was between $130,000 and $180,000 but that it would attempt to secure a settlement for more than that amount. After the family instructed Falconers to obtain a settlement for $2,500,000, Falconers wrote to them on November 11, 2015, stating that it was clear that the family had lost confidence in the firm and its advice, and that Falconers could no longer obtain instructions that they were able to follow professionally. Falconers stated further that the firm’s relationship with the family become dysfunctional and advised the family to obtain new counsel.

[42] Ubah replied on December 11, 2015, indicating that the family wished to continue with the firm.

[43] On March 6, 2016, Falconers met with the plaintiffs (except for Djilal) and advised that if they could get a settlement for $200,000, they would recommend settling at this amount. Falconers also discussed the fact that their 25% contingency fee would be taken out of the settlement amount.

[44] On April 1, 2016, Falconers advised Ubah that they could no longer represent her because of the breakdown in the solicitor client relationship with her. Approximately three weeks later a new solicitor of record appeared on Ubah’s behalf in the civil litigation.

[45] In August 2016 the defendants in the civil claim and the respondents in the human rights application offered to settle both matters for $205,000. The offer did not apply to Ubah who was then represented by separate counsel.

[46] On September 20, 2016, Falconers met with Ikram and Timoro. Falconers reviewed the settlement and explained that the firm’s legal fees would be taken out of the settlement and that the estate and family members (except Ubah and Djilal) would receive $142,087.50. Ikram and Timoro instructed Falconers to accept the global offer of $205,000.

[47] Any allegations about the improvidence of the settlement to the family members other than Djilal and Ubah is precluded by the endorsement of Justice Glustein dated January 15, 2018. On that date, the plaintiffs in the underlying civil action [17] appeared before Justice Glustein to approve the settlement. Justice Glustein notes in his reasons:

The hearing today dissolved into a procedural quagmire, with issues of representation of the estate and conflict in open court between the responding party, Ubah Aganeh, as cotrustee of the estate of Kulmiye Hussein Aganeh and her counsel.

[48] After a brief adjournment to discuss how to proceed, counsel for the moving parties advised that the Family Law Act claims would be resolved for $100,000 inclusive of interest and costs except for Ubah’s Family Law Act claim and that the settlement for the estate would be carved out and addressed at a later motion. Counsel for Ubah advised that he did not oppose that way of proceeding because he took no position on how family members other than Ubah chose to settle. Ubah then addressed the court and, contrary to the position her counsel had taken, asked for the entire matter to be adjourned because her mother, Ikram, might not have capacity to agree to the settlement and might be signing under duress.

[49] Justice Glustein rejected Ubah’s request on the grounds that non-settling defendants have no general right to involve themselves in the approval of settlements to which they are not parties. Glustein J. then concluded that the Family Law Act claimants other than Ubah were bound by the settlement.

[50] In those circumstances, any attack on the allegedly improvident nature of the settlement at this point amounts to an abuse of process because Glustein J. found that the Family Law Act claimants consented to the settlement. No appeal was taken from Justice Glustein’s decision.

[51] The matter of the settlement on behalf of the estate for $105,000 was dealt with in a later motion before Sanfilippo J. Before addressing the fairness of the settlement to the estate, Justice Sanfilippo noted that all family members except Ubah had made statements to the effect that they wished to approve the settlement. [18] He also noted that at the initial hearing to approve the settlement in October 2017, Timoro and Ikram “implored the court to” approve the settlement despite Ubah’s objection. [19]

[52] In considering whether to enforce the settlement against the estate, Sanfilippo J. noted:

The first step is to determine whether a settlement has been reached. If this assessment results in a finding that there is a settlement, the second step is to consider whether, on all the evidence, the Court should exercise its discretion to enforce the settlement.

[53] He then analysed those issues and concluded that a settlement had been reached and that the court should exercise its discretion to enforce the settlement. It is noteworthy that many of the same arguments raised in the current action were raised before Justice Sanfilippo as grounds for him to exercise his discretion against enforcing the settlement.

[54] Sanfilippo J. noted that the estate took the position before him that the settlement was unreasonable and unconscionable. [20]

[55] Sanfilippo J. concluded there was no evidence before him on which he could conclude that the settlement was unreasonable or unconscionable. [21] He noted there were no medical charts or records from the Health Centre or its caregivers and that there was no evidence before him of what was considered by the coroner’s inquest into the death of the deceased. The corners inquest concluded on December 19, 2014. There was ample time for the plaintiffs to obtain medical records both to challenge the reasonableness of the settlement before Sanfilippo J. and to resist summary judgment today. As before Justice Sanfilippo, there was no evidence before me about the unreasonableness of the settlement. Not only was there no evidence before me, there was, as already noted, no case law before me to demonstrate that the settlement was outside of the range of reasonableness for estate or Family Law Act claims of this nature.

[56] In oral argument, Mr. Watson submitted that Sanfilippo J. erred in finding that the settlement was reasonable because he did not examine cases about the quantum of damages available for certain claims. While that issue might warrant an appeal from the decision of Sanfilippo J. it does not justify relitigating the issue. Mr. Watson then submitted that he would be appealing the order of Sanfilippo J. Justice Sanfilippo released his reasons on September 26, 2019. Any appeal period has long expired. There is no information before me to explain why no appeal was taken in a timely manner but should now be granted. Moreover, there is no suggestion that Mr. Watson took Justice Sanfilippo to any such authorities which Sanfilippo J. then failed to consider.

[57] As a result of the foregoing, I find that the claim of an improvident settlement is both unfounded on the record before me and amounts to an abuse of process.

iii. Falconers Did Not Join Ontario as A Defendant

[58] In their action against Falconers, the plaintiffs complain that Falconers did not join the Crown in right of Ontario as a defendant in the claim against the Health Centre.

[59] The issue of failing to join Ontario as a defendant in the underlying action was also raised by the estate before Sanfilippo J. as a basis for refusing to enforce the settlement.

[60] Sanfilippo J. disposed of that issue by noting that Ontario ceased to be the owner of the Penetanguishene Mental Health Centre four months before the deceased’s death. As a result, the failure to join Ontario may have been a historic issue but was not pertinent to the care the deceased was receiving at the time of his death. [22]

[61] On the motion before me, the plaintiffs argued that Sanfilippo J. erred in making this finding because their claim related not only to the circumstances immediately preceding the deceased’s death but also related to his historic treatment. As noted, however, the plaintiffs did not appeal the order of Sanfilippo J.

[62] Sanfilippo J. also noted in this regard that there was no evidence in the record to the effect that the valuation of the plaintiffs’ claim would have been any different had Ontario been named as a defendant. There was still no evidence to that effect before me nor was there any argument made to that effect.

[63] At the end of the day, it strikes me that the issue of joining Ontario as a plaintiff is a bit of a red herring. The settlement exceeded the range of value that Falconers had advised the claim was worth. Adding Ontario would not have increased the value of the claim. The addition of Ontario as a defendant in the underlying claim would only have been relevant if the existing defendants had refused to settle within the claim’s range of value or if the action had gone to trial and resulted in a judgment for more than the defendants could pay. I note that the defendants were the Health Centre, as well as several of its doctors and nurses; all of whom were presumably covered by insurance.

[64] In the circumstances I find that the complaint for failing to join Ontario’s both without foundation and amounts to an abuse of process.

iv. No FLA Claim Was Brought on Behalf of Djilal

[65] Djilal takes the position in this action that he has suffered prejudice because no Family Law Act claim was brought on his behalf. He took a contrary position at the time of the settlement. On October 12, 2017, he swore an affidavit in his capacity as a beneficiary of the estate stating:

I am satisfied, as beneficiary of the Estate of Kulmiye Hussein Aganeh, with the settlement reached on behalf of the Estate for the civil action and the HRTO Application. I understand that my daughter Ubah Aganeh is opposed to the settlement reached in this matter. I do not agree with her position. In my view, the settlement reached is in my best interests as beneficiary of the Estate.

[66] I appreciate that this passage is drafted so as to apply to Djilal’s status as a beneficiary of the estate and not to his status as a potential Family Law Act claimant. The passage was, however, prepared for a motion that was intended to approve the settlement of both the Family Law Act claims and the estate’s claim. Djilal raised no issue about a deficiency in the settlement vis-à-vis his status as a family member and the potential beneficiary of a Family Law Act claim.

[67] In addition, Djilal’s status as the beneficiary of a Family Law Act claim seems doubtful. In November 2016, both Ikram and Timoro affirmed affidavits in which they stated that Djilal had no role in raising the deceased. In March 2010, Ikram had already deposed that Djilal did not play an active role in the deceased's upbringing, and that the deceased had only met his father once, during a trip to Djibouti when he was 14 years old. Those facts would tend to undercut the availability of a Family Law Act claim. I was not directed to any evidence which qualifies or contradicts those affidavits.

[68] Djilal’s claim as a potential Family Law Act beneficiary also appears to be time-barred. During a telephone call on March 15, 2017, in which Timoro, Ikram and Djilal participated, Timoro alleged that Falconers failed to advise them that Djilal could have been a Family Law Act plaintiff. That was more than two years before the notice of action was issued.

[69] Finally on this point, Djilal was never a client of Falconers. In those circumstances, Falconers owed him no duty of care. [23]

[70] In these circumstances, Djilal’s complaint that Falconers did not commence a Family Law Act claim on his behalf is without foundation, is an abuse of process and is time-barred.

v. Falconers Erred in Obtaining a Certificate of Appointment of Estate Trustee

[71] The statement of claim alleges that Ubah was put to considerable time and expense to secure the return of the certificate of appointment and the issuance of a replacement certificate of appointment for the estate due to the “wrongful manner in which the Certificate of Appointment was obtained by Falconers”. The statement of claim does not provide any particulars of the allegedly wrongful manner in which Falconers obtained the certificate of appointment. There was no evidence before me in that regard, nor did Mr. Watson make any submissions in that regard.

[72] The issue of the appointment of estate trustees has some history. Initially, Timoro was appointed as estate trustee in March 2010. In March 2017 Ubah obtained an order adding herself as co-trustee.

[73] By December 2018, differences had arisen between Ubah and Timoro about the estate. Each brought an application seeking to remove the other as co-trustee. Dunphy J. disposed of those applications by removing Ubah and adding the deceased’s mother, Ikram, as co-trustee with Timoro. Dunphy J. noted that there were only two beneficiaries of the estate, Ikram and the deceased’s father, Djilal.

[74] In argument before me, Mr. Watson submitted that the estate had been improperly constituted and suggested that this somehow casts aspersions on the legitimacy of the settlement or the conduct of Falconers. Mr. Watson did not explain how the estate had been improperly constituted. The fact that estate trustees may be added or removed does not automatically mean that the estate was improperly constituted or that the acts of the previous trustees are somehow invalidated.

[75] In these circumstances, the claim that Falconers erred in obtaining a certificate of appointment is without foundation.

vi. Falconers Acted for Ikram Even Though She Was Incapacitated

[76] The plaintiffs allege that Falconers was further negligent because it acted for Ikram even though she was under an incapacity due to mental illness. That issue also has some history.

[77] The allegation that Ikram was incapacitated is based on a certificate of incapacity dated June 23, 2018.

[78] This issue was also before Sanfilippo J. as a basis for not enforcing the settlement. He dismissed the issue by noting that the determination of incapacity was overturned by the Consent and Capacity Board on November 24, 2018.

[79] In addition, Sanfilippo J. noted that Ikram’s alleged incapacity was irrelevant to the enforcement of the settlement because she was not an estate trustee when the settlement was reached and accepted by the family.

[80] In a slight twist on the incapacity argument, Timoro asserts that her own consent to the settlement on behalf of the estate should be disregarded because she approved it as estate trustee while she was under Ikram’s influence and while Ikram was herself incapacitated by mental illness.

[81] Sanfilippo J. addressed and dismissed that argument. He noted that Timoro had sworn an affidavit in support of the settlement in her personal capacity, in her capacity as Litigation Guardian for her brothers Arafat and Amiran and as estate trustee in which she said, among other things, that:

The settlement was entered into in good faith and I intend to abide by the terms of the said settlement. [24]

[82] No one has explained why Timoro, a person whose capacity is not in question, would be acting under the influence of someone she believes is incapacitated. In addition, no one has explained why Timoro does not appear to have raised Ikram’s alleged incapacity when Ikram was appointed as co-trustee of the estate with Timoro. Nor has anyone explained why Ikram should be deemed incapacitated for purposes of the settlement yet maintain her capacity as co-trustee of the estate.

[83] Finally, on this point, the affidavit of Asha James, one of the Falconers lawyers, was that the issue of Ikram’s capacity was never raised as a concern while Ms. James had carriage of the matter, and that Ikram had no difficulty understanding the firm’s advice.

[84] In the circumstances, the claim against Falconers for acting for Ikram when she was allegedly incapacitated is without foundation and amounts to an abuse of process.

vii. Falconers Did Not Advise the Settlement Was a Gross Settlement

[85] The plaintiffs claim that Falconers did not advise them that the $205,000 settlement was a gross settlement from which legal fees and disbursements would be deducted before any distribution was made to the family or the estate.

[86] The Falcons retainer letter specifically sets out that they would be charging a contingency fee of 25% of any judgment or settlement.

[87] Falconers lawyer, Ms. James, states in an affidavit that she met with Ikram and Timoro on September 20, 2016, and explained to them that Falconers fees and disbursements would be taken from the settlement offer of $205,000, thereby leaving the family and the estate with a total net amount of $142,087.50. There is no contrary evidence before me.

[88] In these circumstances, the claim that Falconers was negligent for failing to advise that the settlement amount was one from which legal fees would be deducted is without foundation.

Disposition and Costs

[89] For the reasons set out above, I grant the motion for summary judgment and dismiss the action.

[90] The defendants seek partial indemnity costs of $17,888.82. Mr. Watson did not object to the amount requested. I have reviewed the defendants’ bill of costs and find it to be reasonable. I therefore order that the action be dismissed and that the plaintiffs be jointly and severally liable for the defendants’ costs which I fix in the amount of $17,888.82.

Koehnen J.

Released: 2022-04-01

[1] To avoid the confusion that may arise by referring to multiple men and women as Mr. or Ms. Aganeh, I will refer to the plaintiffs by their first names. I mean no disrespect in doing so.

[2] Rules of Civil Procedure, RRO 1990, Reg 194, s 20.04(2)(a); Hryniak v Mauldin, 2014 SCC 7 at para. 47

[3] Rules of Civil Procedure, RRO 1990, Reg 194, r 20.02(2); Sweda Farms v Egg Farmers of Ontario, 2014 ONSC 1200 at paras. 26–27, 33; Sutton v Balinsky et al, 2015 ONSC 3081 at para. 141.

[4] Limitations Act, 2002, SO 2002, c 24, sch B, s 4

[5] Limitations Act, 2002, s 5(1)

[6] Nicholas v McCarthy Tetrault, aff’d 2009 ONCA 692, leave to appeal dismissed , at paras. 26-28; Farhat v Monteanu, 2015 ONSC 2119 at para 34.

[7] Kleiman v 1788333 Ontario Inc. o/a BMW Toronto, 2020 ONSC 6470, at para. 24

[8] Shukster v Young et al, 2012 ONSC 407 at para. 19; Verbeek v Liebs-Benke, 2017 ONSC 151, at para. 23.

[9] Peixeiro v Haberman, [1997] 3 SCR 549 at para. 18; Hamilton (City) v Metcalfe & Mansfield Capital Corporation, 2012 ONCA 156, at paras. 59-63.

[10] Coutanche v Napoleon Delicatessen at para. 18; Lawless v Anderson, 2011 ONCA 102 at paras. 21-23; Magill v Expedia Canada Corporation, 2010 ONSC 5247 at para. 66.

[11] Toronto (City) v CUPE, Local 79, 2003 SCC 63, [2003] 3 SCR 77, at para. 37

[12] Toronto (City) v CUPE, Local 79, supra at para. 37

[13] Ibid. at para. 51.

[14] Ibid. at para. 52.

[15] Ibid.

[16] Aganeh v. Mental Health Centre Penetanguishene Corporation, 2019 ONSC 5599 at para 72.

[17] The same plaintiffs as here with the exception of Djilal.

[18] Aganeh v. Mental Health Centre Penetanguishene Corporation, 2019 ONSC 5599 at para. 22

[19] Ibid. at para 25.

[20] Ibid. at para. 63(c).

[21] ibid. at paragraph 88.

[22] Aganeh. at para 82.

[23] 2116656 Ontario Inc. v Grant and LLF Lawyers LLP, 2019 ONSC 114, at paras. 32-37.

[24] Aganeh at para. 22.