COURT FILE NO.: 1935/16

DATE: 2022/08/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Steven R. Yormak

Plaintiff

– and –

Ledroit Professional Corporation,

Paul Ledroit and Ondrej Sabo

Defendants

Self

John McNair for the Defendants

HEARD: March 8,9,10, 2022

REASONS FOR DECISION

Table of Contents

I. BACKGROUND.. 3

II. POSITION OF THE PARTIES. 4

A. The plaintiff’s position. 4

B. The defendants’ position. 5

III. THE EVIDENCE.. 6

A. The evidence of Steven Yormak. 6

The Retainer 7

The instructions. 7

Steps taken during the retainer 7

Steps taken following the termination of the retainer 8

Exhibits relied on by the plaintiff. 9

Cross-examination. 9

Assessment as a witness. 11

B. The evidence of Paul Ledroit 13

The retainer 13

Yormak’s involvement in the file. 13

The progress of the file. 14

The termination of the retainer 20

Cross-examination. 22

Assessment as a witness. 23

C. The evidence of Ondrej Sabo. 24

Involvement with the file. 24

The motion for partial summary judgment/production of documents. 25

Cross-examination. 25

Assessment as a witness. 26

IV. THE LAW... 27

A. Breach of contract 27

B. Negligence. 27

The Standard of Care. 28

Causation. 28

Loss of chance. 29

C. Expert evidence. 30

V. ANALYSIS. 30

A. Breach of contract 30

General assessment regarding instructions. 30

Instruction that Ledroit act on all aspects of the case. 31

Instructions regarding motion for security for costs. 32

Instructions regarding subrogation, assignment and/or carriage. 34

B. Negligence. 36

Did the defendants fail to meet the standard of care expected of legal counsel 36

Did the negligence of the defendants cause or contribute to the damage/loss alleged. 40

VI. ISSUE ESTOPPEL.. 46

VII. CONCLUSION.. 47

VIII. COSTS. 47

S.K. stothart j.

[1] The plaintiff, Steven Yormak brings this action against the law firm Ledroit Professional Corporation and two lawyers Paul Ledroit and Ondrej Sabo. This matter proceeded by way of simplified trial.

[2] As the trial progressed the issues narrowed down to the following:

1. Were the defendants negligent in their legal representation of the plaintiff;

2. Did the defendants fail to follow the instructions of the plaintiff thereby breaching the terms of the retainer agreement; and

3. Did the plaintiff suffer any loss, damage or loss of chance as a result of the negligence and/or breach of retainer agreement by the defendants.

[3] For reasons that follow, I have concluded that the plaintiff has not proven, on a balance of probabilities, that the defendants were negligent in their representation of him or that they breached the terms of the retainer agreement.

[4] I also conclude that even if negligence or breach of contract were established, that the plaintiff has not proven, on a balance of probabilities, that he suffered any loss, damage or loss of chance as a result.

I. BACKGROUND

[5] The plaintiff, Steven Yormak (“Yormak”) is a practicing lawyer who retained Paul Ledroit (“Ledroit”), Ondrej Sabo (“Sabo”) and their law firm to defend him in an action brought by his son, Benjamin Yormak (“Benjamin”) in Ontario.

[6] The matter of Yormak v. Yormak involved a dispute between father and son over taxes owing to the Canada Revenue Agency (“CRA”) by the estate of Kenneth Alexander Baird, who was Yormak’s father-in-law and Benjamin’s grandfather.

[7] At the time Baird prepared his will, Yormak and his spouse were insolvent. It was agreed that Baird would name his grandson as the beneficiary of his estate with the expectation that the proceeds of the estate would go from Benjamin to Yormak and his wife. Essentially Benjamin was a beneficiary to the Baird estate “in name only” in an effort to avoid the Yormaks’ creditors.

[8] When Baird died on September 3, 2007, Yormak was certified as the sole Estate Trustee and Executor of the Baird estate. According to Baird’s will, Benjamin was the sole beneficiary of the estate.

[9] In 2010, the CRA notified Yormak and Benjamin that the estate taxes had not been paid and demanded payment. Both Yormak and Benjamin were liable for the unpaid taxes because they were the executor and beneficiary, and assessment notices were issued against both of them.

[10] Yormak took the position that he had sent a cheque to cover the estate taxes and that the CRA had failed to cash it. He asserted that he failed to notice that the cheque had not been cashed and was now prejudiced by the failure of the CRA to raise the issue of unpaid taxes in a timely manner because the estate funds were now gone.

[11] Benjamin took the position that he was the beneficiary in name only and his father had received the proceeds from the estate. He wanted his father to assume liability for what was owed to the CRA. When that did not happen, on August 28, 2013 he brought an action against his father claiming damages for misappropriation of estate funds or a declaration that Yormak was obliged to indemnify him with respect to the CRA claim for income taxes, plus interest and penalties.

[12] On September 24, 2013, Yormak retained Ledroit, Sabo and the law firm Ledroit Law to defend him in the action brought by his son.

[13] The defendants represented Yormak in the civil action until August 20, 2014 when Yormak terminated the retainer following a successful motion by Benjamin for partial summary judgment. Yormak placed the defendants on notice of “negligence and failure to follow instructions” and proceeded to defend himself in the action.

[14] Five months later, on January 20, 2015, Yormak advised counsel for Benjamin that he had settled the outstanding issues with the CRA and that as part of the tax settlement all proceedings against Benjamin would be vacated. (Exhibit 23-Yormak affidavit)

[15] On a date not specified in these proceedings the Yormak v. Yormak action was stayed following Benjamin’s bankruptcy in the United States.

[16] On August 4, 2016, Yormak commenced this action against Ledroit, Sabo and Ledroit Professional Corporation.

II. POSITION OF THE PARTIES

A. The plaintiff’s position

[17] The statement of claim in this matter initially claimed negligence, breach of contract, breach of fiduciary duty, and breach of duty and loyalty. As the trial proceeded, Yormak withdrew the allegations of breach of fiduciary duty and breach of duty and loyalty and proceeded only on the allegations of negligence and breach of contract.

[18] As the trial proceeded, Yormak narrowed the allegations of negligence and breach of contract to the following:

(1) The defendant, Ledroit, breached the terms of the retainer agreement by failing to conduct all aspects of the case, in particular by failing to personally attend court appearances;

(2) The defendants breached the terms of the retainer agreement and were negligent by failing to act on Yormak’s instructions to immediately proceed with a motion for security for costs and by agreeing to unnecessary delays and adjournments of this motion once it was filed; and

(3) The defendants were negligent and breached the terms of the retainer agreement by failing to advance a claim in equity for subrogation, assignment and/or carriage of the CRA tax proceedings as a part of a defence, claim and/or motion.

[19] With respect to the issue of loss and/or damages, by the end of the trial Yormak amended the relief he was seeking to:

(1) That the court take an equitable global view of all the accounts rendered on the file and reduce the defendants’ bill to zero;

(2) An order returning the legal fees paid to the defendants;

(3) An order that the defendants pay all cost orders rendered against Yormak in Yormak v. Yormak proceedings (if a request for payment was made); and

(4) An order that the defendants pay Yormak’s personal legal fees that he incurred mitigating the damage they caused.

B. The defendants’ position

[20] The defendants submit that they met the standard of care expected of a reasonably competent lawyer and acted in accordance with the instructions of Yormak.

[21] The defendants submit that it was never a term of the retainer that Ledroit would conduct all aspects of the case and attend all court appearances. Yormak was fully aware that an associate lawyer would be involved in the matter and indeed dealt directly with and provided instructions to Sabo on various aspects of the file.

[22] The defendants submit that Yormak was fully aware of and agreed to all steps taken in the matter. He was an active, engaged and legally trained client who provided continuous instructions throughout the conduct of the litigation. Yormak was fully on board and promoted the legal strategy employed by the defendants.

[23] The defendants deny that they were negligent in the manner in which they handled the motion for security for costs.

[24] The defendants deny that they were negligent in not seeking an order for subrogation, assignment and/or carriage in the matter.

[25] The defendants submit that Yormak has failed to establish that anything they did caused any compensable loss or injury. They submit that the expenses and costs orders incurred by Yormak following the end of their retainer were due to his desire to aggressively pursue claims that had little, if any, chance of success.

[26] The defendants submit that the issues of negligence and breach of retainer were already raised and argued as part of the assessment process in relation to their legal fees, as such this action is barred by virtue of issue estoppel.

[27] The defendants submit that any issue related to their fees has been fully determined in prior assessments. Given that Yormak has not sought leave of the court pursuant to the Solicitor’s Act, it would be inappropriate for this court to re-assess the accounts.

III. THE EVIDENCE

A. The evidence of Steven Yormak

[28] Steven Yormak is a lawyer and has been licensed to practice law in Ontario since 1981. He lives primarily in the United States. His son, Benjamin, is also a lawyer who practices in the United States.

[29] In his affidavit dated February 2, 2022, filed as part of the summary trial, Yormak states that in 2013 his son commenced an action against him in Ontario alleging that he had committed fraud and misappropriation of funds in relation to the Baird estate.

[30] The background to the Yormak v. Yormak action was that a dispute had arisen with the CRA over taxes owed from the Baird estate. Yormak had been the executor of the Baird estate, and his son had been the sole beneficiary. As a result of their respective positions, they were both named in the CRA proceedings and were jointly liable for any consequences flowing from the tax issue.

[31] According to Yormak, he had always offered to take carriage of all aspects of the CRA proceedings and had offered to provide full indemnification to his son because they both knew that Benjamin had been named beneficiary in “name only” in an effort to avoid Yormak’s creditors.

[32] It was Yormak’s view that the action brought by his son in Ontario was in response to a multi-million-dollar lawsuit that he had filed against his son in the United States. Yormak felt that his son brought the action in Ontario in an effort to pressure him to drop the lawsuit in the United States.

The Retainer

[33] Yormak says that he retained Ledroit to defend him in the Yormak v. Yormak action specifically because he knew Ledroit was a specialist in the area of civil litigation. Yormak had not practiced extensively in the area of civil litigation.

The instructions

[34] Yormak states that he instructed Ledroit to resolve the matter forthwith. His instructions were to provide indemnification to his son and to obtain subrogation rights to defend the CRA claim on behalf of both himself and his son.

[35] According to Yormak, Ledroit verbally agreed to take on all aspects of the litigation, including attending each court appearance.

[36] It was essential to Yormak that both indemnification and subrogation be tied together as part of any resolution of the matter. In his view, it was critical that he be given standing and authority to argue all issues in the CRA claim on behalf of both his son and himself.

[37] The second issue that was important to Yormak was the need to immediately bring a motion for security for costs. Given that his son was a U.S. resident and therefore subject to Rule 56.01 of the Rules of Civil Procedure, he felt that such an order was easily obtainable with a prompt court application and hearing. It was Yormak’s view that if a court ordered his son to pay security for costs, that his son would likely discontinue the action.

Steps taken during the retainer

[38] Yormak states that while the defendants eventually filed a motion for security for costs, they consented to multiple adjournments of what he felt was a straightforward motion. This was contrary to his instructions which were to proceed on the first scheduled date. Ultimately the motion was delayed for over eight months rending it almost moot.

[39] Yormak states that in the interim, his son brought a motion for partial summary judgement on the basis of Yormak’s ongoing offers of indemnification. Benjamin argued that this meant that there was no remaining triable issue.

[40] Yormak states that he instructed the defendants to raise the issue of corresponding equitable relief in the form of subrogation, assignment and/or carriage as part of their response to Benjamin’s motion. In his view, given that his offers of indemnification had always been tied to the condition that he be given sole carriage of the CRA proceedings, partial summary judgement should be denied or if it were ordered it should include an order that he be given sole carriage of the CRA proceedings.

[41] Yormak states that despite his instructions, the defendants did not raise this critical issue during the motion for partial summary judgment before Justice Gorman, of the Superior Court of Justice.

[42] Yormak was deeply disappointed when Benjamin’s motion for partial summary judgement was successful. In Yormak’s view, the result was disastrous because it allowed the CRA to “in effect” obtain a default judgement against him. His son could simply agree to the full amount claimed by CRA and Yormak would have to pay it.

[43] According to Yormak, the failure of the defendants to raise the critical issues of subrogation/assignment and/or sole carriage of the CRA proceedings either in the defence pleadings or as part of the partial summary judgement hearing left him defenseless in the CRA claim.

[44] Yormak was highly critical of the defendants’ handling of the partial summary judgement motion and the conduct of the defence of the action. He states at paragraph 15 of his affidavit:

At no time did the Defendants include a claim and relief in the Statement of Defence or Amended Statement of Defence on my behalf to ensure my right for assignment/subrogation and carriage of the Ben CRA appeal in exchange of indemnification, nor did they at any time notify the court of this essential and critical relief, particularly in the summary motion process brought by Ben’s counsel. In fact not only did the Defendants entirely “forget” this issue at the motions hearing but incredibly provided the court with a rationale entirely against my interest, indicating to the court they did not have jurisdiction (which it did) meant that any issue of assignment could not be raised. This is because Defendants not only failed to bring their own summary motion on my behalf but it was never raised in any of their pleadings, nor ever referenced within the Ben motion for summary judgement hearing.

[45] Yormak states that following the motion for partial summary judgement he requested that the defendants remedy their errors at their own cost. When they refused to do so he filled out a Notice of Change of Lawyer and terminated his retainer with the defendants.

Steps taken following the termination of the retainer

[46] According to Yormak, following the termination of his retainer with Ledroit, he went on to attempt to mitigate or repair the damages incurred. This included:

(1) Writing to opposing counsel offering to waive his right of appeal from the partial summary judgement on the basis of a grant of subrogation and assigning carriage of the CRA appeal to him, along with the dismissal of the action and the issue of costs to be argued;

(2) Serving a motion for summary judgement for subrogation, a motion to dismiss the balance of the action and a motion for security for costs returnable August 29, 2014. (These were stayed pending the appeal to the Ontario Court of Appeal);

(3) Filing an appeal of Justice Gorman’s decision with the Ontario Court of Appeal on September 24, 2014. (This was later abandoned after Yormak settled with the CRA in January, 2015);

(4) Serving another motion for security for costs, (which was dismissed); and

(5) Preparing a notice of appeal of the dismissal of the motion for security for costs. (This did not proceed).

[47] According to Yormak the motion for dismissal of the action and costs was ultimately stayed because his son filed for bankruptcy in the United States.

Exhibits relied on by the plaintiff

[48] Multiple e-mails were filed as exhibits to Yormak’s affidavit and were referred to during his evidence. Specifically, Yormak pointed to exhibit 7 (a) to (o) and exhibit 14 of his affidavit as proof of his instructions to the defendants in the proceedings.

[49] Yormak relied on excerpts from an affidavit and factum filed by Benjamin’s counsel, Kyle McLean in response to the appeal of Justice Gorman’s ruling, found at exhibit 10 of his affidavit. Yormak relied on these materials in support of his assertion that the defendants did not raise the issues of subrogation, assignment and/or carriage as part of the summary judgement motion.

[50] Yormak also relied on Justice Gorman’s endorsement dated August 12, 2014 as evidence that the issues of subrogation, assignment and/or carriage were not raised at the partial summary judgement motion. This is found at exhibit 11 of Yormak’s affidavit.

[51] Finally, Yormak relied on a memo dated August 12, 2014, prepared by the defendant, Sabo, as evidence that the issues of subrogation, assignment and/or carriage were not raised at the partial summary judgement motion and that Sabo made submissions contrary to Yormak’s interests. This is found at exhibit 12 of Yormak’s affidavit.

[52] During his testimony Yormak stated that he was not prepared to disclose the resolution reached with the CRA. He testified that it was “favourable” and that he would not be alleging that he suffered any actual damages in the CRA proceedings.

Cross-examination

[53] In cross-examination Yormak agreed that the reason why the Baird estate was left to his son was to place any inheritance funds beyond the reach of any creditors. He agreed that this might not put him in great light in a claim based on equity.

[54] Yormak agreed that he read the retainer with the defendants before he signed it. He acknowledged that he was aware that a junior lawyer might do research and assist on the file.

[55] According to Yormak, Ledroit committed orally to attending all hearings and court appearances. Yormak testified that they discussed this the first day and every time they spoke. When a court date was coming up, Yormak would tell Ledroit that he presumed he would be there.

[56] Yormak testified that he believed these discussions took place at Ledroit’s office. He agreed in cross-examination that these discussions did not take place in the presence of anyone else. He further agreed that any agreement or understanding to this effect does not appear in any written correspondence between the parties.

[57] Yormak testified that did not ask that a specific clause setting out his expectation that Ledroit would act in all aspects of the case be added to the retainer because he felt it was unnecessary.

[58] During cross-examination, Yormak was taken to his amended statement of claim which claimed that Yormak had instructed Ledroit not to waste legal time and expense to attempt to settle the matter. Yormak was then taken to his affidavit filed in support of the trial which stated at paragraph 8 “At all times the defendants were not only privy to the aforementioned but were instructed to resolve the matter forthwith regarding the only two issues in the Canadian action”.

[59] Initially Yormak testified that he told Ledroit that it was a “waste of time” and that Ledroit was the one pushing for a settlement. Yormak then testified that he had not been opposed to settlement discussions provided they protected his interests. He then testified that he did not object to Ledroit continuing to try to settle the matter. Finally, when challenged with the numerous e-mails from Yormak to Ledroit promoting and suggesting terms settlement terms, Yormak advised the court that he wished to withdraw the claim related to settlement instructions.

[60] Yormak testified that he immediately discussed a motion for security for costs with Ledroit at the time of the retainer. He testified that this was done orally and not in the presence of others. He agreed in cross-examination that the subject of a motion for security for costs does not appear in any written correspondence. He conceded that he did not press the issue with the defendants because he was “giving them room” to deal with the matter and felt the motion could be made returnable quickly.

[61] Yormak testified that Ledroit told him that a special date was required for the motion for security for costs and that it was “just the way it is”. Given this he felt he had to accept the scheduling of the first date for the motion in May, 2014. He testified that he was being tolerant and did not want to switch lawyers at that time.

[62] Yormak testified that when they received Benjamin’s affidavit in May, he told Ledroit that the affidavit was too late and they should move to strike it, seek permission to file something late, or just go ahead with the motion. It was Yormak’s view that Benjamin’s affidavit was helpful because if his son was impecunious this was even more reason for an order for security for costs. According to Yormak he told Ledroit to go ahead with the motion no matter what.

[63] During cross-examination, Yormak was asked about why he did not call expert evidence at the trial. Yormak testified that he consulted with two or three experts but could not remember their names. He described them as “colleagues” of his and noted that one lived in London, another in Toronto and a third in St. Catherines.

[64] When asked in cross-examination about why he did not complain about Sabo’s involvement in the file, Yormak testified that he was dealing with the hand he was dealt.

[65] It was put to Yormak in cross-examination that he never instructed counsel to bring a motion for control of the CRA proceedings. Yormak testified that it had always been understood as part of the settlement discussions. He conceded that there was no reference to this instruction in any of the e-mails or other documentation. Further on in cross-examination, Yormak testified that he did not instruct his lawyers to bring a claim for subrogation other than by implication.

[66] Yormak testified that he relied on Ledroit’s expertise as a specialist in civil litigation to raise the issue of subrogation, assignment and/or carriage of the CRA proceedings.

[67] It was suggested in cross-examination that it was incomprehensible that Yormak would ask Ledroit to continue with the file following Justice Gorman’s decision in August, 2014 on a “no fee basis” given the record of abject negligence. Yormak testified that he wanted the retainer to continue with the expectation that he would be the watchdog and would be actively involved in the file.

[68] Yormak agreed in cross-examination that he has not paid any of the costs orders made in the Yormak v. Yormak matter and has not been called upon to pay those costs in the past eight years.

[69] Yormak was challenged in cross-examination about the legal time he claims he spent on the file following the termination of the retainer. When asked how his claim went from $15,000 in the original statement of claim to the $52,350 in the amended statement of claim, Yormak testified that he had gone back and looked at his materials and discovered that he had missed a lot of the time he spent on the file.

[70] Yormak testified that he could not provide any actual dockets demonstrating his work on the file because his practice is to put the dates and hours worked on top of bits and pieces of paper in the file. He testified that he cannot produce those pieces of paper because they are his work privileged notes.

Assessment as a witness

[71] I have reviewed and considered Yormak’s affidavit evidence, his testimony at trial and the evidence called at the trial as a whole. I noted that much of his affidavit contained submissions rather than evidence. I have taken great care to ensure that I rely on properly admissible evidence as opposed to the submissions contained in Yormak’s evidence.

[72] Overall, I found Yormak to be a poor witness. He was inconsistent in his evidence on several key points. I found him to be evasive in cross-examination. He would change his evidence to suit the point being made in the questioning and on occasion would eventually concede the obvious.

[73] One example of this was Yormak’s evidence with respect to whether he instructed Ledroit to engage in settlement discussions. Yormak began with insisting that he did not support settlement discussions and that he told Ledroit that they were a waste of time. This was inconsistent with his trial affidavit where he stated that he immediately instructed Ledroit to resolve the matter. When confronted on this point Yormak testified that he did not “object” to Ledroit’s attempts to settle the matter. Only when Yormak was confronted with the voluminous e-mail communications where he is clearly providing instructions in relation to settlement does he ultimately abandon his claim that Ledroit failed to follow his instructions to not waste legal time and expense attempting to settle the matter.

[74] A further example was with respect to Yormak’s initial claim that upon retaining Ledroit he instructed him to seek a court order for him to have carriage of the CRA proceedings. When cross-examined on this claim, Yormak conceded that he did not specifically instruct Ledroit to seek a court order for subrogation, assignment and/or carriage other than by implication.

[75] I found portions of Yormak’s evidence to be simply not credible. An example of this was when he testified that he did not know the name of the three “experts” that he consulted with yet described them as colleagues and knew where they lived. I find this to be incredible.

[76] Some of the exhibits attached to Yormak’s affidavit caused the court concern. Specifically exhibits 7 (a) and 7 (c) which were submitted as if they were copies of original e-mails. When I looked at these exhibits it was clear that they were likely manufactured or altered. Exhibit 7 (a) contains inconsistent fonts and font sizes throughout. Exhibit 7(c) clearly has a portion blocked out from the middle of the e-mail.

[77] When asked about exhibit 7 (c) Yormak testified that he pasted two e-mails together to create this document. I find this explanation implausible given the relative short length of the e-mail. In my view it appears that a piece of blank paper was placed over the text in the middle of the e-mail and a copy was then created. When this took place, whoever created the document failed to fully cover the text in the middle of the e-mail and you can see the top of the text peeking out from whatever was covering it.

[78] When Ledroit was cross-examined about these two exhibits he did not agree that either was authentic copy of an e-mail he sent or received. With respect to exhibit 7 (a), Ledroit noted that the formatting differed on the page and that it he would not ordinarily write an e-mail in this style. With respect to exhibit 7 (c), Ledroit noted that portions appeared to have been blocked out.

[79] Given my concerns, and Ledroit’s failure to adopt these two exhibits, I find that I cannot rely on either of them as being credible or reliable evidence.

[80] Finally, certain aspects of Yormak’s evidence were inconsistent with the acknowledged communications that took place between Yormak and the defendants. I will expand upon this further on in my analysis.

B. The evidence of Paul Ledroit

[81] Paul Ledroit is a lawyer and has been licensed to practice law in the province of Ontario for over 50 years. He is certified by the Law Society of Ontario as a specialist in civil litigation. He currently practices in London, Ontario as Ledroit Law.

[82] Ledroit provided an affidavit dated February 4, 2022 which was filed as his evidence in chief at the summary trial. In his affidavit he confirms that he and his firm were retained by Yormak to defend an action that had been commenced by his son. As was customary practice, a retainer agreement was prepared.

The retainer

[83] The retainer agreement dated September 24, 2013 was directed to “Paul Ledroit/Ondrej Sabo, Ledroit Law” and related to “Yormak v. Yormak”. At the time of the material events, Sabo was an associate lawyer with the firm.

[84] The retainer agreement, found at exhibit 4 of Ledroit’s affidavit, specifically addresses the issue of delegation of work as follows:

I further understand that all legal work on the file will be supervised by a lawyer with a valid membership in the Law Society of Upper Canada and that any delegations of duties to non-lawyers will be consistent with the Law Society of Upper Canada’s Rules of Professional Conduct and regulations.

[85] The retainer agreement also sets out the fee structure as follows: $550 per hour for Paul Ledroit and $200 per hour for Ondrej Sabo.

[86] Ledroit states that there was no term in the retainer agreement, express or implied, that he would conduct all aspects of the litigation or that he would personally attend court appearances.

Yormak’s involvement in the file

[87] Ledroit states that from the outset of the retainer, Yormak was focused intensely upon the litigation. Yormak took an active role in the strategizing and would suggest measures and counter measures to thwart his son’s claim. According to Ledroit, Yormak offered a continuous stream of instructions and advice concerning the defence of the action. This did not surprise Ledroit given Yormak’s background as a lawyer and the evident bitterness between father and son.

The progress of the file

[88] Ledroit sets out in his affidavit an extensive history of the settlement discussions that took place in relation to Yormak v. Yormak. Attempts to resolve the matter commenced almost immediately following Yormak’s retainer and continued up until the retainer was terminated.

[89] Ledroit states that he felt it was his professional obligation to use all reasonable efforts to determine if a settlement was achievable. He felt that obligation was even more apparent in this case where the parties should have been able to overcome the relatively straightforward issues which divided them and where, as here, they were father and son

[90] Ledroit states that Benjamin retained David Thompson (“Thompson”), a tax litigation specialist, as his counsel in relation to the CRA proceedings and retained Lou-Anne Farrell (“Farrell”) and subsequently Kyle MacLean (“MacLean”) in relation to the action against his father. Ongoing settlement discussions took place with both Thompson and Farrell.

Early settlement discussions – September to December, 2013

[91] Settlement discussions began with a suggestion that Yormak acknowledge by way of affidavit that funds from the Baird estate were always intended to go to him, thus relieving his son of any tax liability. Yormak disagreed with this suggestion and wanted to use the CRA case as leverage against his son in the civil action. He would agree to provide indemnity in the CRA case only if his son agreed to drop the civil action.

[92] In October, 2013, Benjamin offered to drop the civil action if his father dropped the lawsuit in the United States. Yormak would not agree to negotiate any settlement that involved dropping the lawsuit in the United States. Yormak would only agree to a settlement where his son would drop the civil action and then the two could prepare mutual affidavits and releases for the CRA dispute.

Motion for security for costs

[93] Ledroit states that on October 27, 2013, Yormak proposed that they bring a motion for security for costs, followed by a motion to dismiss the civil action. In accordance with those instructions, on December 11, 2013 they prepared and delivered a motion record seeking an order for security for costs supported by Yormak’s affidavit dated December 16, 2013.

[94] Ledroit states that counsel agreed that the motion could not be fully argued on a weekly motions list. As such, counsel canvassed available court dates and agreed on the date of May 28, 2014 to argue the motion. The motion was scheduled to take three hours.

Continued negotiations in 2014

[95] Despite setting a date for a motion for security for costs, settlement discussions continued. Ledroit states that settlement discussions were conducted with the knowledge and encouragement of Yormak who played a vigorous role in evaluating proposed settlement terms and providing direction.

[96] In early January, 2014, Yormak asked Ledroit to reach out to see if his son would now agree to settle the matter by way of exchanging reciprocal affidavits, Yormak would accept responsibility for any CRA liability, the parties would exchange mutual releases limited to the Ontario action and any other claim arising in Canada, the civil action would be dismissed, and Benjamin would pay his father $12,500 being his full costs. This proposal was not accepted as Benjamin refused to pay his father’s costs.

[97] Ledroit stated that in March, 2014, he had ongoing discussions with Thompson about the CRA proceedings. In the course of those discussions it was proposed by Thompson that Yormak provide indemnification to his son in the event that the tax appeal failed and the CRA attempted to collect any assessed amount. The parties would otherwise release each other from all claims arising from the Baird estate, exchange reciprocal affidavits and bear their own costs of the Ontario action.

[98] Ledroit stated that Yormak instructed him to go back to Thompson with a proposal that Yormak, his son and Thompson work as a team to prosecute the appeal in Tax Court, with Yormak controlling all the decision making and his son paying Thompson’s fees. In addition, Benjamin would pay $5,000 towards Yormak’s costs in the Ontario action. In accordance with these instructions, Ledroit made the offer to Thompson and reported back to Yormak by way of email April 3, 2014.

[99] On April 7, 2014, Thompson responded, advising that the proposed resolution was not acceptable. According to Thompson, Benjamin had incurred significant costs due to the failure of his father to acknowledge he was not a true beneficiary in the CRA proceedings. He had had no choice but to bring the Ontario action, faced with potential CRA liability. As such he should not pay his father’s costs in the action.

[100] Ledroit stated that he continued to have resolution discussions with Thompson. In those discussions it was made clear that Benjamin was not prepared to turn over his defence in the CRA proceedings to his father while paying the legal costs. Thompson suggested that if Yormak wanted carriage of Benjamin’s tax appeal at his own cost, that this was something they could discuss.

[101] Ledroit stated that he then received a five-page memorandum from Yormak outlining his new position on the file. This memo is marked as exhibit 20 to the Ledroit affidavit.

[102] In this memorandum, Yormak set out his view of the law surrounding equity, fraud, and a limitation defence. Yormak wrote that he was no longer willing to take over the entire CRA debt. He suggested that they advise Thompson, shortly before the next court appearance, that their position was that Ben will be liable for 50% of the tax liability.

[103] Yormak then suggested they tell Farrell that she was in a conflict of interest to proceed any further because she knew that Ben’s affidavit was not true. He suggested a strategy where they would bring a summary judgement motion based on the Limitations Act. This would deplete any security for costs posted. They would then bring further motions to drive up the costs and seek further costs be replenished.

[104] Yormak suggested that the matter could settle only if his son withdrew the Ontario action and paid his full costs. If his son was not prepared to resolve on this basis, then they would proceed to court on May 28th.

[105] In accordance with this new position, Ledroit contacted Thompson and Farrell to propose a settlement meeting. Between May 6th and May 13th, he exchanged e-mail correspondence with counsel. Thompson expressed his frustration that Yormak would not provide an unconditional indemnity despite saying he would indemnify his son. It now appeared, to Thompson, that Yormak was resiling from this position.

[106] During this correspondence, Ledroit indicated to Thompson and Farrell that Yormak had never agreed to an “unconditional indemnity”. Rather it was always his intention that he take over the CRA matter rather than give his son a blank cheque to negotiate with the CRA. It was for that reason they had offered a “working plan” where Yormak would “run” the CRA defence. Yormak was prepared to resolve all issues remaining in Canada.

[107] On May 13, 2014, Ledroit received correspondence from Thomson indicating that Benjamin would hardly allow his father to direct his legal representation while he paid all the costs and had no say in the outcome or settlement. Thompson suggested that if Yormak wanted to take over representation in the CRA matter, at no cost to Benjamin, they might consider resolving the matter by way of Yormak providing a full and complete indemnity which included a consent to any enforcement order being secured against Yormak’s assets.

[108] On May 16, 2014, Thompson wrote and offered to resolve the matter by agreeing to have Yormak take full carriage of the CRA appeal in return Yormak would provide his son with full and absolute indemnity. However, Benjamin would retain the right to re-assume his defence in the Tax Court, in which case Yormak’s indemnity would no longer apply.

[109] On May 21, 2014, Thompson wrote and offered to resolve the matter by way of agreeing to dismiss the Ontario action and entering into an indemnity agreement. The parties would sign mutual releases and reciprocal affidavits. Benjamin would agree to allow his father to have full carriage of the tax appeal provided Benjamin had full and absolute indemnity for any tax liability. Thompson provided a draft indemnity agreement, mutual release, minutes of settlement and reciprocal affidavits to be deposed by the parties.

[110] On May 21, 2014, Yormak rejected these offers. He felt the content of the affidavits implied that he had been fraudulent in his dealings with the estate. Yormak wanted his son to pay his legal expenses incurred in the Ontario action.

[111] At this point no agreement had been reached. Ledroit stated that this was disappointing as he felt extensive efforts had been made on both sides to settle the matter.

Adjournment of the security for costs motion scheduled for May 28, 2014

[112] Ledroit stated that Farrell delivered a responding motion record on May 14, 2014 in response to the motion for security for costs scheduled for May 28, 2014. In these materials Benjamin deposed that he had no intention of claiming entitlement to the estate funds if his father voluntarily agreed to indemnify him for the taxes. The issue was simply whether the funds were his father’s. If they were, his father should pay the taxes owing. If the funds did not belong to his father, they should be returned to him.

[113] Benjamin further deposed that he was effectively impecunious and that an order for security for costs would prevent him from pursuing a meritorious claim. His father had started several other lawsuits against him in the United States and had lodged two bar complaints about his conduct as an attorney. This had already put him to significant expense in defending those proceedings.

[114] On May 15, 2014, Ledroit wrote to Farrell expressing concern having just received a lengthy affidavit from her client. He advised that he would need an adjournment of the special appointment date in order to respond and to cross-examine Benjamin on the affidavit. He copied Yormak on this e-mail.

[115] Ledroit stated that he shared Benjamins’ affidavit with Yormak upon its receipt. Ledroit states that Yormak believed that his son was hiding income. Yormak suggested that they ask for all of Benjamin’s financial documents, including his tax returns, company financial statements, company bank accounts and a copy of the agreement of purchase and sale for a home that was recently purchased.

[116] Ledroit stated that he advised Farrell that he required financial documentation from Benjamin regarding his personal and business finances as well as details surrounding the purchase of a home.

[117] Ledroit testified that Yormak suggested that they object to the late filing of the affidavit, unless opposing counsel accepted certain conditions which included having Benjamin fly to Canada to be cross-examined, that Benjamin pay for examination time and transcripts and pay for costs thrown away on the motion.

[118] On May 20, 2014, Yormak prepared a further affidavit which was filed in response to his son’s affidavit. In that affidavit Yormak stated that following the CRA assessment of the estate taxes to himself and his son, he had offered to assume all responsibility for the CRA liability subject to Benjamin providing a release for any claims arising out of the estate or any other existing claims in Canada. He stated that despite his prior offer to indemnify his son, he now felt the estate funds should be apportioned on a 50/50 basis because his son had derived a benefit from the funds in support of his educational and other financial expenses. Yormak went on to depose his view of his son’s financial circumstances and challenged the assertion that he was impecunious.

[119] Ledroit stated that Sabos filed the Yormak affidavit on May 20th, and then prepared and delivered a factum and brief of authorities on May 22, 2014. This was met by surprise by Farrell who had stopped working on the motion on the assumption that it was going to be adjourned.

[120] Ledroit stated that on May 22nd, Yormak wrote him suggesting that they obtain as early a date to adjourn to as possible for the motion for security for costs. This is contained at exhibit 29 to Ledroit’s affidavit. Yormak asked Ledroit to firm up dates for Benjamin to be cross-examined on his affidavit and that he would work on disclosure of Benjamin’s corporate financial information.

[121] The parties agreed to adjourn the May 28th date and began to discuss the details surrounding Benjamin’s cross-examination on his affidavit.

[122] The parties were provided with further available court dates for the motion for security for costs and they selected August 29, 2014. An adjournment of three months.

Settlement discussions continue

[123] In the meantime, between May 21st and May 28th, the parties continued to discuss potential settlement.

[124] Ledroit stated that he received instructions from Yormak to make another offer to settle. This offer is contained in an e-mail to Thompson and Farrell dated May 26, 2014 found at exhibit 31 to Ledroit’s affidavit. In that offer, Yormak proposed that he take over all aspects of the CRA appeal and that Benjamin be required to cooperate in this regard, that he would indemnify Benjamin (except for any cost orders in the CRA proceeding from when Benjamin was defending the claim), that they would sign mutual releases, that the Ontario action would be dismissed and Benjamin would pay costs in the amount of $10,000. This offer was rejected.

[125] On June 2, 2014, on Yormak’s instructions, Ledroit provided a formal offer to settle the matter on the terms that the counter claim would be dismissed without costs and that the Ontario action would be dismissed with costs on a substantial indemnity basis.

Motion to dismiss the action with costs and motion for production of documents

[126] Ledroit stated that in June, 2014, Yormak instructed them to bring two further motions. The first was a motion to dismiss the action with costs on the basis that there was no genuine issue for trial given Yormak’s repeated willingness to provide indemnification to Benjamin against liability in the CRA proceedings. The second motion sought production of financial documentation for the purposes of the motion for security for costs. Both motions were served July 2, 2014.

[127] On July 4th, counsel for Benjamin delivered a responding motion record and a Rule 49 Offer to Settle. The offer to settle proposed that Yormak indemnify his son against any tax liability and in return the motion for security for costs would be withdrawn and the action and counterclaim would be dismissed without costs.

[128] On July 7th, Yormak suggested that they counter with a request for $25,000 in costs.

[129] On July 8th, Yormak suggested that they withdraw the motion for dismissal and proceed with the motion for security for costs. In accordance with these instructions, a notice of withdrawal was delivered on July 14th.

[130] On July 15, 2014, the parties attended court in relation to the motion for production of documents. A one-week adjournment was granted over the objection of Yormak’s counsel. On July 17th, counsel for Benjamin delivered their responding motion record.

Benjamin Yormak’s motion for partial summary judgement

[131] Ledroit stated that on July 18, 2014, they were served with a motion for partial summary judgement on behalf of Benjamin. In this motion, Benjamin requested an order that his father indemnify him with respect to the claim by the CRA for taxes owing in relation to the estate, plus interest and penalties.

[132] It was the position of Benjamin that there was no genuine issue for trial because his father had admitted he was obligated to indemnify his son for any tax liability. In support of this, he relied on Yormak’s affidavit filed in support of the motion for dismissal. In that affidavit, Yormak stated that he did not resile from the position that he was solely responsible for the taxes in the Baird estate.

[133] Ledroit stated that they filed responding materials which consisted of a motion record and supplemental motion record. Included in these materials was the affidavit of Yormak July 31, 2014 which is found in exhibit 53 of Ledroit’s affidavit.

[134] Paragraph 24 of this affidavit stated:

I am, and always have been prepared to indemnify the Plaintiff for taxes claimed to be owing by CRA, but only upon certain conditions, being that: (a) I am not prepared to give up my claims against my son that are ongoing in Florida; (b) I have control of the CRA proceedings against my son and myself, and that my son cooperates in the matters.

[135] Further on in the Yormak affidavit, Yormak set out that given there was bad blood between he and his son, he was concerned that a “raw indemnification” would allow his son to do something that would prejudice his position with the CRA.

[136] Prior to the partial summary judgement motion, the parties discussed settlement again. Benjamin offered to settle the action and all motions on the basis that his father would provide full indemnity for all tax liabilities arising from the Baird estate, along with suitable security for that indemnity. In addition, Yormak would agree to pay security for costs of the tax appeal, the parties would execute mutual releases of all claims stemming from the Baird estate, Yormak would have full carriage of the tax appeal on condition that his actions comply with both he and his son’s respective professional and ethical rules and obligations, the terms would be incorporated into minutes of settlement and a consent order and the costs of the action and related motions would be agreed upon by the parties or assessed by the court.

[137] Ledroit stated that Yormak rejected this offer. Yormak reiterated that he would settle only on the basis that he take over the CRA proceedings “unconditionally”, that the action be dismissed and his costs be paid on a full indemnity basis.

[138] The motion for partial summary judgement and the motion for production of documents proceeded before Justice Gorman on August 12, 2014.

Justice Gorman’s decision on partial summary judgement

[139] On August 12, 2014, Justice Gorman issued a handwritten endorsement holding that there was no genuine issue for trial and ordered Yormak to indemnify his son with respect to the tax claim. Justice Gorman dismissed the motion for production of documents on the basis that Benjamin would have to prove his impecuniosity on the security for costs motion in any event and as such an order for production at this stage would be imprudent.

[140] Ledroit stated that Justice Gorman’s endorsement was forwarded to Yormak on the afternoon of August 12, 2014. After discussing the matter with Sabo, it was Ledroit’s view that Justice Gorman erred in relation to the motion for partial summary judgement by failing to acknowledge that Yormak’s offer of indemnity was tied to other conditions which included a condition that Yormak be given sole carriage of the CRA appeal. Given that the parties had not reached an agreement about the terms attached to the offered indemnity, Ledroit felt that Justice Gorman should not have granted partial summary judgement.

The termination of the retainer

[141] Ledroit stated that on August 14, 2014, Yormak sent an email outlining a whole range of new motions he wished to bring, including a motion “based on equity” seeking an order that he take over carriage of the tax appeal. Ledroit responded and suggested that they appeal Justice Gorman’s order or agree to a dismissal of the Ontario action given that indemnification had been ordered.

[142] Yormak responded with another e-mail implying that Sabo had prejudiced his position by suggesting to Justice Gorman that she lacked jurisdiction to attach the carriage term to the indemnification relief which she granted. Yormak suggested that they could bring a motion for partial summary judgement to permit him to take carriage of the CRA appeal. Yormak proposed that they move forward and (a) argue the motion for security for costs on August 28th; (b) file an appeal of Justice Gorman’s order after the security for costs motion; (c) move to dismiss the remaining claims in the Ontario action; and (d) seek costs on a substantial indemnity basis in all of those instances.

[143] Ledroit stated that while he believed there was a basis to appeal Justice Gorman’s decision, he did not believe that Yormak could succeed on a “subrogation” motion or that they would recover substantial indemnity costs.

[144] On August 17, 2014, Yormak wrote to Ledroit expressing his displeasure with the manner in which the motion had proceeded and the result. Yormak claimed that he had provided instructions that only Ledroit represent him in court and that Sabo had acted erroneously in the summary judgement motion. He then indicated “I assume you will take every remedial measure to correct this oversight at your expense”.

[145] Ledroit states that Yormak had never insisted that he had to personally argue all motions. While Ledroit agreed that Yormak may have preferred this, Ledroit had never been asked to give this assurance and he never would have agreed to it.

[146] Ledroit wrote back to Yormak expressing his confidence in Sabo’s representation at the motion and refuting Yormak’s suggestion that he acted erroneously. Ledroit pointed out that Sabo had opposed the summary judgement motion on the basis that Yormak and his son could not agree on the terms of the indemnification, namely carriage of the tax appeal. It was their position that because the court had no power to impose the carriage term as part of the indemnification the court should not have made an order of indemnification.

[147] Ledroit stated that he was not prepared to proceed as suggested by Yormak, including filing an appeal for free. As such, he suggested that Yormak represent himself or they would bring a motion to be removed from the record.

[148] On August 19th, they received a letter from MacLean proposing that Yormak waive his right of appeal from Justice Gorman’s decision in return for a discontinuance of the action with the issue of costs to be assessed by the Court. MacLean advised that if they could not come to an agreement, that they would seek costs on the security for costs motion.

[149] On August 20, 2014, Yormak forwarded a Notice of Change of Lawyers indicating that he had retained his own firm and Anthony Cirelli as co-counsel. Yormak then sent an e-mail suggesting that they had discussed “on numerous occasions” that Ledroit was supposed to represent him in court. It was his view that Sabo had misunderstood that “subrogation” was an essential part of the indemnification. He then placed both Ledroit and Sabo on notice of “negligence and failure to follow instructions”.

[150] Ledroit stated that at no time prior to Justice Gorman’s decision did Yormak voice any complaint about their representation of him.

Cross-examination

[151] In cross-examination, Ledroit indicated that he had no specific memory of the events other than those documented in the file. By the time this trial commenced it had been almost 7-1/2 years since the termination of the retainer.

[152] Ledroit stated that he could not deny Yormak’s claim that he had expressed a preference that Ledroit attend court and adopted his earlier testimony before an assessment officer that he told Yormak that he would do what he could.

[153] During cross-examination, Ledroit was shown exhibit 7(a) from Yormak’s affidavit filed as part of the summary trial. The e-mail is dated March 5, 2014. It was suggested that this e-mail demonstrated that Ledroit was aware that Yormak had offered to take over full liability and carriage of the CRA appeal in exchange for mutual releases both prior and following Thompson’s representation of Benjamin.

[154] With respect to exhibit 7(a) Ledroit testified that he could not confirm that this was an authentic e-mail. He noted that the formatting differed on the page, and he would not ordinarily write an e-mail in this style. He could not recognize this as an e-mail that he sent.

[155] During cross-examination, Ledroit was shown exhibit 7(c) from Yormak’s trial affidavit. Ledroit noted that portions of the e-mail were missing.

[156] During cross-examination Ledroit was shown exhibit 7(k) from Yormak’s trial affidavit. Ledroit testified that it concerned him that the format was inconsistent in this e-mail. However he confirmed that the e-mail was in the style that he wrote.

[157] When asked if he included any claim for carriage of the CRA appeal in any of the pleadings, Ledroit testified that the pleadings speak for themselves. He testified that Yormak was intimately involved in any drafting of materials and the pleadings were drafted with Yormak’s input. It has always been his practice to send a statement of claim to a client to review first.

[158] When asked why he did not bring anything before a court by way of pleading, motion or otherwise raising the issue of carriage of the CRA appeal, Ledroit testified that everything that was done on the file was done with Yormak’s input and approval.

[159] When asked about his view of whether a Superior Court could order carriage of the CRA appeal, Ledroit testified that he gravely doubted that the Superior Court would have jurisdiction over the conduct of an appeal before the Tax Court.

[160] When asked why he did not ask for corresponding equitable relief for carriage of the CRA appeal, Ledroit testified that it must have been because it did not come up in their discussions, otherwise they would have discussed it. Ledroit could not say that it was ever a topic of discussion between he and Yormak when preparing pleadings, although he acknowledged that it was brought up in Yormak’s affidavit in response to the motion for partial summary judgement.

[161] When pressed again about why Ledroit would not have brought this up, given he was a specialist in civil litigation, Ledroit testified that he did not think it would be a proper subject of a counter claim. He did not believe that it was within the Superior Court of Justice’s jurisdiction to decide how a Tax Court case would proceed. Ledroit testified that the word “subrogation” never came up until Yormak used the term following Justice Gorman’s decision.

[162] Ledroit agreed that a motion for security for costs against a non-resident should be brought promptly. When asked if he thought that the prospects were good for an order for security for costs in this case, Ledroit testified that he was not confident that it would have succeeded. He pointed out that this was a motion seeking security for costs against his son who was being chased by the CRA for an obligation that was clearly Yormak’s.

[163] When asked why he brought a motion that he did not believe would succeed, Ledroit testified that he brought it because there was a chance that it could succeed depending on how the Judge viewed the evidence and it would put some pressure on the other side to resolve the matter. However, he felt the court would not have a lot of sympathy for Yormak given he and his wife had tried to avoid creditors, Yormak had not noticed that the CRA failed to cash his cheque and that now his son was being pursued for taxes when he was innocent of anything related to the payment of taxes.

[164] When asked why Ledroit sought to adjourn the May date for the motion for security for costs, Ledroit testified that he felt a Judge would permit the late filing of Benjamin’s affidavit given that there had been extensive settlement discussions going on. He had received instructions from Yormak that he wanted to challenge Benjamin’s assertion in the affidavit that was he impecunious. He felt an adjournment would allow that to happen.

[165] When asked in cross-examination about the delay in getting a new court date for the motion for security for costs, Ledroit explained that the practice was to consult with the court to see what dates were available and then consult with opposing counsel and coordinate schedules. He testified that the August date would have been the first date that counsel could agree on.

[166] When asked to point to evidence that Yormak’s instructions had changed with respect to proceeding with the motion for security for costs in May, Ledroit referred to a May 22nd e-mail marked as exhibit 29 to Ledroit’s affidavit. In this affidavit Yormak writes “I would suggest your office obtain as early a date to adjourn to as possible, fixed date. In the meantime if you can firm up date for Ben cross-exam”. Ledroit testified that Yormak’s instructions were often fluid.

Assessment as a witness

[167] I found Paul Ledroit to be a credible and reliable witness. He fairly conceded that his memory of events has been impacted by the passage of time and that he must rely on the materials retrieved from the file to speak for themselves. I found him to be cautious and thoughtful during the course of his evidence, ensuring that he did not provide evidence beyond his limited memory.

[168] In cross-examination, Ledroit conceded that he could not deny that Yormak expressed a preference that Ledroit attend court appearances. He also adopted his evidence at a prior assessment hearing that he told Yormak that he would do what he could.

[169] I found Ledroit to be very fair and generous in his description of Yormak as a client. He was diplomatic in his description of the various positions taken by Yormak during the settlement negotiations.

[170] I accept Ledroit’s evidence that Yormak was intimately involved in the drafting of any materials or pleadings and that they were prepared with Yormak’s input. I accept Ledroit’s evidence that everything that was done on the file was done with Yormak’s input and approval. His evidence in this regard is amply supported by the numerous e-mail communications filed in support of his affidavit.

C. The evidence of Ondrej Sabo

[171] At the time of the material events Ondrej Sabo was employed as an associate lawyer with Ledroit Law and practiced under the direction of Paul Ledroit. He was called to the bar in 2012. In 2018, he became a partner with Ledroit Law.

[172] In his role as an associate lawyer he assisted and supported Ledroit with legal research, collecting evidence, drafting pleadings, affidavits and facta, attending discoveries and motions, meeting with clients and discussing litigation strategy.

[173] Sabo provided an affidavit dated February 4, 2022 that was filed as his evidence as part of the simplified trial.

Involvement with the file

[174] Sabo states that his involvement in the Yormak file began in November, 2013 when he was assigned the task of reviewing caselaw and drafting materials related to a motion for security for costs.

[175] His most intensive participation in the file began in June, 2014 when he drafted motion materials for a motion to dismiss Benjamin’s action and a motion for production of financial information. He drafted these materials and supporting affidavits based on information and instructions received from Yormak.

[176] Sabo states that he received numerous e-mails from Yormak providing instructions and commentary about various aspects of the motions.

The motion for partial summary judgment/production of documents

[177] Sabo was assigned to argue two motions on August 12, 2014. The first was a motion by Benjamin for partial summary judgement, and the other was the motion by Yormak for production of Benjamin’s financial records.

[178] Sabo testified that he was well aware that Yormak’s offer to indemnify his son was subject to certain conditions which included a refusal to end the Florida claim and that he wanted to control the negotiations with CRA and the Tax Court proceedings. These conditions were outlined in Yormak’s affidavit filed in response to the motion for partial summary judgment.

[179] Sabo stated his submission on the partial summary judgement motion was that there was no enforceable agreement between the parties for indemnification because Yormak’s willingness to give such indemnity was always subject to conditions that were unacceptable to Benjamin. He referred the court particularly to Yormak’s requirement that he be given effective control of the Tax Court proceedings. It was Sabo’s submission to the court that the parties had never actually been ad idem on the issue of indemnification.

[180] Sabo stated that the question of the Court’s jurisdiction to grant an order for indemnification with the terms required by Yormak came up during the course of submissions. He could not recall if he or Justice Gorman raised the issue.

[181] It was Sabo’s view that there was considerable doubt about whether a justice of the Superior Court had jurisdiction to make what would have amounted to a carriage order involving an appeal in the Tax Court. As such, he urged the court to decline to grant the indemnity relief absent the conditions that Yormak required.

[182] Ultimately Justice Gorman ordered that Yormak indemnify his son in the CRA proceedings.

[183] It was Sabo’s view that Justice Gorman’s endorsement failed to adequately address the evidence before her that Yormak’s agreement to indemnify was subject to two conditions: (1) that he would not give up his claims against his son in the United States; and (2) that he would have control of the CRA proceedings and his son would cooperate in the matter. Following Justice Gorman’s decision, he spoke to Ledroit and they both agreed that the record disclosed a good, arguable ground of appeal.

Cross-examination

[184] In cross-examination, Sabo testified that in his experience a special appointment date depended on the court’s schedule and counsel’s schedule.

[185] Sabo could not recall if he asked for Yormak’s view before committing to the May date. He testified that he presumed he did.

[186] In cross-examination, Sabo testified that the word “subrogation” was first used by Yormak following Justice Gorman’s decision.

[187] Sabo testified that he could not recall if he researched the issue of whether the Tax court had jurisdiction to switch carriage of a matter.

Assessment as a witness

[188] I found Andrej Sabo to be a credible and reliable witness. He also fairly conceded that his memory of events had been impacted by the passage of time and that he had to rely on the materials retrieved from the file. I found him to be fair and balanced in the manner in which he testified.

[189] I have turned my mind to the submission of Yormak that Sabo’s evidence is false with respect to what took place before Justice Gorman and the submissions he made to the court.

[190] The proceedings before Justice Gorman were not recorded and as such a transcript is not available. Yormak did not attend the motion and cannot provide any direct evidence as to what transpired.

[191] Yormak relies on an affidavit prepared by MacLean and filed on behalf of Benjamin as part of the appeal of Justice Gorman’s order. This was marked as exhibit 10 to Yormak’s trial affidavit.

[192] The affidavit, dated December 10, 2014 states at paragraph 12:

I have carefully reviewed the pleadings and the motion records exchanged in this action and verily believe that the first instance of Steven seeking an Order or advancing a claim on the record for “subrogation” or to be granted sole carriage of Ben’s tax court appeal for the CRA assessment in respect of the Baird Estate was made in the Notice of Motion for Partial Summary Judgement for Subrogation served on our office by Steven on August 21, 2014.

[193] MacLean was not called as a witness at trial. The parties agreed that MacLean would not have been able to provide any further evidence beyond that which was in his affidavit.

[194] In my view, paragraph 12 of the MacLean affidavit does not contradict the evidence of Sabo. Sabo confirms that he did not seek an order or advance a claim for subrogation or carriage as part of the partial summary judgement motion. It was his view that Justice Gorman did not have the authority to make such an order with respect to the conduct of a defence before the Tax Court.

[195] The position taken by Sabo during the motion was that blanket indemnification should not be granted given that Yormak’s offer of indemnification had been tied to the two conditions set out in Yormak’s affidavit.

[196] Sabo’s evidence in this regard is supported by the contents of his memo to Ledroit dated August 12, 2014. In that memo Sabo stated that Justice Gorman’s response to his submission that she does not have jurisdiction to impose the terms of the indemnity were “I agree”. As such, he expected that the motion for partial summary judgement would be dismissed. It is implicit in his memo that he referred the court to the “terms” which had been attached to any offer of indemnity.

[197] I found that Sabo was able to provide clear and compelling evidence about what occurred during the argument of the summary judgement motion. His evidence was consistent and not shaken in cross-examination.

[198] In the end I am left with the credible, reliable and unshaken evidence of Sabo with respect to what took place at the summary judgement motion. He is the only person who provided direct evidence as to what happened at the motion and I accept his evidence in its entirety.

IV. THE LAW

A. Breach of contract

[199] To succeed in an action alleging breach of contract, the plaintiff must establish the existence of a valid, binding contract between the parties and that the defendant failed to comply with a term of that contract.

[200] In a case of alleged solicitor’s negligence, the duty to perform legal services in accordance with the standard of care expected of a normal, prudent, practitioner is considered an implicit term of the retainer agreement. As such, allegations of negligence and breach of contract may be considered concurrently. Central and Eastern Trust Co. v. Raffuse, (1986), 31 D.L.R. (4th) (S.C.C.) at paras. 50-54.

[201] In the absence of special terms in a retainer agreement, the nature and scope of the duty of care expected by a solicitor in contract and tort are the same. Central and Eastern Trust Co. v. Raffuse, supra. at para. 60.

B. Negligence

[202] To succeed in an action alleging the tort of negligence, the plaintiff must establish, on a balance of probabilities, that the defendant solicitors failed to exercise the reasonable degree of skill and knowledge that would be reasonably expected of a normal, prudent, practitioner of the same experience and standing.

[203] If the plaintiff establishes a breach of the standard of care, he/she must go on and establish, on a balance of probabilities, that the breach caused or contributed to the alleged damage and/or loss.

The Standard of Care

[204] The standard of care required of a solicitor is the same standard that would be expected from any professional. A solicitor is expected to exercise the reasonable degree of skill and knowledge that would be reasonably expected of a normal, prudent, practitioner of the same experience and standing. Armstrong v. Royal Victoria Hospital, 2019 ONCA 963 at para. 86, aff’d 2021 SCC 1, Central & Eastern Trust Co. v. Raffuse, supra. at para. 66, Folland v. Reardon, 2005 CarswellOnt 232 (Ont.C.A.) at para. 41.

[205] An error of judgement or ignorance of some part of the law is not, by itself, enough to ground a claim of negligence. The conduct of the solicitor must be such that it was outside the sphere of what an ordinary, competent lawyer would have done. Folland v. Reardon, supra. at para. 44, Brenner v. Gregory 1972 CanLII 420 (ON SC), [1973] 1 O.R. 252 ((Ont.H.C.) at p. 257.

[206] A reasonable prudent solicitor does not need to know all of the law related to the legal service undertaken. An attorney is expected to possess knowledge of those plain and elementary principles of the law that are commonly known by well-informed attorneys, and to discover additional rules of law which, although not commonly known, may readily be found by standard research techniques. Central Trust Co. v. Rafuse, supra. at para. 67.

[207] In assessing whether the conduct of a lawyer was reasonably competent, the court must be cautious against characterizing errors in judgement as negligence. Lawyers make decisions in the course of a lawsuit based on their judgement. A lawyer will not be held to be negligent if the judgement he/she makes is within the range of reasonable choices that could have been made by a competent member of their profession. A poor result, viewed in hindsight, does not necessarily ground a finding of negligence. Folland v. Reardon, supra. at para. 44. Di Martino v. Delisio, 2008 Can LII 36157 (ONSC) at para. 54.

[208] The reasonableness of a solicitor’s conduct depends on the particular circumstance in each case. These circumstances include the form and nature of the client’s instructions, the experience and sophistication of the client, the nature of the action or legal assignment, the time available to complete the work, the experience and training of the solicitor, the course of the proceedings and the influence of other factors beyond the control of the client and solicitor. Pilotte v. Gilbert, Wright & Kirby, Barristers & Solicitors, 2016 ONSC 494 at paras. 39-40.

[209] A specialist in an area of law will be held to a higher standard than a generalist due to their special training and experience. In those circumstances, a specialist must exercise the degree of skill and knowledge of an average specialist in his/her field. Ter Neuzen v. Korn, 1995 CanLII 71 (SCC) at para. 33.

Causation

[210] If the plaintiff establishes a breach of the standard of care, he/she must go on and establish, on a balance of probabilities, that the defendant’s actions caused a loss and/or injury and that the loss and/or injury would not have occurred “but for” the fault of the defendant or if that test is inappropriate, that the defendant’s breach contributed to the loss and/or injury in a material way, although there may have been other causes. Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 (S.C.C.) at paras. 13-19.

[211] The “but for” test was set out in Clements (Litigation Guardian of) v. Clements, 2012 SCC 32 at para. 8 as follows:

The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

[212] In a case of solicitor’s negligence, where a plaintiff can establish on a balance of probabilities that “but for” the solicitor’s negligence he/she would have avoided a loss, then he/she should be fully compensated for that loss. Jarbeau v. McLean, 2017 ONCA 115 at para. 27-28.

Loss of chance

[213] In a case of solicitor’s negligence, where the plaintiff can only establish that “but for” the solicitor’s negligence he/she lost a chance to obtain a benefit or to avoid a loss, a claim may permit recovery for the value of that chance. Jarbeau v. McLean, supra. at paras. 26-28, Folland v. Reardon, supra. at para. 73, Trillium Motor World Ltd. v. Cassels, Brock & Blackwell LLP, 2017 ONCA 544 at para. 263, leave to appeal refused 2018 Carswell 4960 (SCC).

[214] In Folland v. Reardon, at paras. 73-74, Justice Doherty set out four criteria that must be met in order to recover damages for a lost chance. They are:

(1) The plaintiff must establish on a balance of probabilities that but for the defendant’s wrongful conduct, the plaintiff had a chance to obtain a benefit or avoid a loss;

(2) The plaintiff must show that the chance lost was sufficiently real and significant to rise above mere speculation. This de minimis threshold has also been described as requiring the plaintiff to prove he/she had "some reasonable probability" of realizing an advantage of some real substantial value;

(3) The plaintiff must demonstrate that the outcome, that is, whether the plaintiff would have avoided the loss or made the gain, depended on someone or something other than the plaintiff him/herself; and

(4) The plaintiff must show that the lost chance had some practical value.

[215] In Berry v. Pulley, 2015 ONCA 449, at para. 70-72, the Court of Appeal described a “two-step framework” for determining a loss of chance claim. The first step is to determine if the four criteria in Folland are met. The second step is to award damages equal to the probability of securing the benefit or loss multiplied by the value of the lost benefit or loss sustained.

C. Expert evidence

[216] In general, it is inappropriate for a trial court to determine the standard of care in a professional negligence case in the absence of expert evidence. Krawchuk v. Scherback, 2011 ONA 352 at para. 130, Zink v. Adrian (2005), 2005 BCCA 93, 37 B.C.L.R. (4th) 389 (B.C.C.A.) at para. 43, and Adair, Grant and Rothstein Lawyer’s Professional Liability (4th ed.) at page 56.

[217] There are two exceptions: (1) where the court is faced with “non-technical” matters or those which an ordinary person may be expected to have knowledge; and (2) where the impugned actions of the defendant are so egregious that it is obvious that his or her conduct has fallen short of the standard of care, even without knowing precisely the parameters of that standard. Krawchuk v. Scherback, at paras. 133-135. Larizza v. Royal Bank of Canada, 2018 ONCA 632 at para. 37.

[218] Courts have been cautioned against assuming the role of expert in cases of solicitor’s negligence. In Lawyers’ Professional Liability, the learned authors commented on the situation as follows:

Indeed, in circumstances where no expert evidence has been tendered on what a reasonably prudent lawyer would have done, courts have cautioned against a judge, despite having practiced law and being familiar with the standard of a competent of a lawyer, acting as his own expert on the basis that in these circumstances the “expert” opinion of the judge is not subject to cross-examination.

Adair, Grant and Rothstein, Lawyers’ Professional Liability (4th ed), at page 59.

V. ANALYSIS

A. Breach of contract

General assessment regarding instructions

[219] With respect to Yormak’s submission that the defendants breached the terms of the retainer by failing to act on his instructions, I find as a fact that Ledroit and Sabo were responsive to and acted upon the instructions of Yormak throughout the course of their retainer. This included the following:

(1) Preparing a statement of defence and counter claim which were provided to Yormak for review in advance;

(2) Engaging in settlement discussions which included presenting and responding to numerous settlement offers based on the instructions of Yormak;

(3) Preparing and serving a motion for security for costs against Benjamin in accordance with Yormak’s instructions;

(4) Preparing and serving a motion for production in accordance with Yormak’s instructions;

(5) Preparing and serving a motion to dismiss the action and later abandoning it on Yormak’s instructions;

(6) Preparing and serving responding motion materials in relation to the motion for partial summary judgement which were provided to and reviewed by Yormak; and

(7) Attending and arguing the motion for production and the motion for partial summary judgement

[220] Having considered the evidence in its totality, and in particular the e-mail communications between Yormak and the defendants, I find that Yormak was an active, informed, educated and engaged participant in all decisions made at each stage of the proceedings in Yormak v. Yormak.

Instruction that Ledroit act on all aspects of the case

[221] I am not satisfied that it was a term of the retainer, implicit or explicit, that Ledroit would act on all aspects of the case and that he would attend every court appearance. I reach this conclusion for the following reasons:

(1) This condition does not appear in the written retainer agreement;

(2) The written retainer agreement clearly indicates that Yormak is retaining the lawyers of Ledroit Law firm and sets out the hourly rate of both Ledroit and Sabo;

(3) The written retainer agreement specifically refers to the delegation of legal work;

(4) Yormak was clearly aware that Sabo was working on the file at various points in time. An example of this is found in Yormak’s June 24, 2014 e-mail, found at exhibit 39 of Ledroit’s affidavit. In this e-mail, Yormak advises Ledroit that he would like to bring a motion for production of Benjamin’s financial records. He then writes “I would hope that Ondrej could do this returnable for next week”. Further examples are found in the e-mail communications between Yormak and Sabo; and

(5) I find that Yormak knew that Sabo would be arguing the motion for production of financial records which was returnable on July 15, 2014. This is supported by Yormaks’ e-mail to Sabo on July 4th, found at exhibit 41 of Ledroit’s affidavit. In the e-mail, Yormak instructs Sabo on what to ask for during the motion. At this point all of the materials had been filed, therefore Yormak must have been referring to the submissions that he wanted Sabo to make during the motion itself.

[222] I reject Yormak’s testimony that he raised the issue of Ledroit’s personal attendance every time they spoke and that he would tell Ledroit that he presumed that he would be there every time there was a court appearance. Firstly, this does not appear anywhere in the voluminous e-mail communications. Further, it is contradicted in the July 4th e-mail to Sabo instructing him on how to conduct himself at the upcoming motion.

[223] I accept that it is likely that Ledroit told Yormak that he would do his best to conduct most of the work on the file and to attend court appearances. In fact, Ledroit did conduct most of the work on the Yormak v. Yormak file including conducting all settlement discussions with Farrell and Thompson, communicating extensively with Yormak, and overseeing the work of Sabo.

[224] I conclude that the plaintiff has failed to establish, on a balance of probabilities, that the defendants breached a term of the retainer contract that required Ledroit to conduct all aspects of the case and attend every court appearance.

Instructions regarding motion for security for costs

Was there an immediate instruction to bring a motion for security for costs

[225] I do not accept Yormak’s claim and testimony that he immediately instructed Ledroit to bring a motion for security for costs following the retainer and that Ledroit failed to comply with the terms of the retainer by failing to follow those instructions.

[226] The topic of a possible motion seeking security for costs in the civil action first appears in an e-mail dated October 27, 2013, found at exhibit 39 of Ledroit’s affidavit. In this e-mail, Yormak discusses the ongoing settlement discussions. In this context he goes on to write:

b) Referring to my comments in (a) above we would be in a position to bring a motion for security for costs on the basis of his being a non-resident and the merits on the fact of it (4 yr. elapse limitation defence), perhaps in the range of $20-25,00 for security for costs.

c) Presumably after the Motion for security for costs we would proceed with a motion for dismissal based on limitation defence (that would of course be your call)

[227] In my view this e-mail corroborates Ledroit’s testimony that Yormak proposed that they bring a motion for security for costs followed by a motion to dismiss the civil suit on October 27, 2013. This is about one month following the retainer, and follows settlement discussions.

Did the defendants breach the terms of the retainer by scheduling the motion for security for costs to take place on May 28, 2014

[228] I accept Ledroit’s evidence that in accordance with Yormak’s instructions they prepared and delivered a motion seeking an order for security of costs, supported by Yormak’s affidavit. This would have necessarily taken some time to prepare the materials, including the preparation of Yormak’s affidavit in support of the motion which was sworn on December 16, 2013.

[229] On December 17, 2013 the matter was set down to a special assignment date of May 28, 2014. I accept Ledroit’s uncontested evidence that the normal procedure for a motion for security for costs was to seek a special appointment date that was available to the court and counsel.

[230] I have not received any evidence with respect to the availability of special assignment dates in 2014 or the availability of counsel. Without this evidence I am unable to make any findings with respect to whether the motion could have proceeded on an earlier date and whether any delay was caused by the defendants.

[231] As such, I conclude that the plaintiff has failed to establish, on a balance of probabilities that the defendants breached the terms of the retainer by scheduling the motion for security for costs to take place on May 28, 2014.

The adjournment of the May 28, 2014 security for costs motion date

[232] On May 14, 2014, Farrell served the responding motion record on behalf of Benjamin for the motion for security for costs, which included an affidavit in which Benjamin deposed that given his financial circumstances, a security for costs order would effectively prevent him from pursuing a meritorious claim. This is found at exhibit 24 of Ledroit’s affidavit.

[233] Shortly after receiving these materials, Ledroit wrote to Farrell expressing his concern that he had just received a lengthy affidavit from her client and that he would need an adjournment in order to respond and that he wished to cross-examine Benjamin on his affidavit. This is found in exhibit 25 of Ledroit’s affidavit.

[234] The evidence demonstrates that there was a flurry of e-mails back and forth with respect to possible settlement between May 6th and May 27th. I accept Yormak’s evidence that as of May 21st, if the matter did not resolve he wanted to pursue the motion for security for costs. This is set out in an e-mail found at exhibit 14 of Yormak’s affidavit.

[235] However, by May 22, 2014 Yormak’s instructions appear to change, as evidenced by his e-mail that day, found at exhibit 29 to Ledroit’s affidavit. In that e-mail, Yormak writes:

I would suggest your office obtain as early a date to adjourn to as possible, fixed date. In the meantime if you can firm up date for Ben cross exam. I will keep you posted as to disclosure in Fla. re: his corporate financial info. which will cfm. if he was attempting to mislead Ont. court as to his true financial position.

[236] Yormak’s desire to pursue the production of financial documents and cross-examination of Benjamin is further evidenced in his e-mail to Ledroit dated May 27, 2014, found at exhibit 32 of Ledroit’s affidavit.

[237] Based on the evidence I am unable to conclude, on a balance of probabilities, that Yormak gave clear instructions to proceed with the motion for security for costs on May 28, 2014. It may be, as Yormak testified, that he was accepting the circumstances as he found them to be. However, by May 22nd his instructions appear to be in favour of the adjournment so that Benjamin could be cross-examined on his affidavit and they could pursue his financial records in an effort to challenge his claim of impecuniosity.

[238] As such, I am not satisfied, on a balance of probabilities, that the decision to adjourn the May 28th date was contrary to Yormak’s instructions or amounted to a breach of the retainer.

Instructions regarding subrogation, assignment and/or carriage

[239] Yormak claims that upon retaining the defendants he instructed Ledroit to seek a court order for carriage of the pending estate tax dispute between his son and the CRA in exchange for Yormak indemnifying his son for any tax liability with the CRA.

[240] I find as a fact that Yormak did not instruct Ledroit to seek a court order for subrogation, assignment and/or carriage as part of the Yormak v. Yormak proceedings until after he was unsuccessful in Benjamin’s motion for partial summary judgement. Indeed, during cross-examination Yormak conceded that he did not instruct his lawyers to bring such a claim or motion “other than by implication”.

[241] I am satisfied that Yormak instructed Ledroit that any settlement that involved indemnifying his son had to be tied to an agreement that he be given sole carriage of the CRA proceedings. I am also satisfied that Ledroit followed those instructions and insisted on that term during the course of any settlement discussion that involved indemnification.

[242] There is a distinction to be drawn between instructing counsel to seek a court order as opposed to seeking an agreement to a term of settlement. Parties can agree to settlement terms that would not necessarily be imposed by way of a court order following a motion.

[243] With respect to Yormak’s claim that he instructed the defendants to raise a claim for equitable relief in the form of subrogation, assignment and/or carriage as part of their response, I specifically reject his evidence on this point for the following reasons:

(1) Yormak conceded in cross-examination that he did not provide these instructions, other than by implication;

(2) Yormak was fully aware of the materials filed in response to Benjamin’s motion for partial summary judgement as they were shared with him. He would have been aware that those materials did not contain a request for equitable relief or for subrogation. There is no evidence before me that Yormak raised any concern about the materials filed prior to the hearing date;

(3) I accept the evidence of Ledroit and Sabo that the term “subrogation” was first used by Yormak following Justice Gorman’s decision. The term “subrogation” does not appear in any of the communications between Yormak and Ledroit between September, 2013 and August, 2014;

(4) The term “subrogation” first appears in an e-mail following Justice Gorman’s decision, dated August 14, 2014. In this e-mail, found at exhibit 68 of Ledroit’s affidavit, it is apparent that Yormak has conducted his own legal research and found “case precedent for subrogated interests pursuant to contractual indemnifications”; and

(5) Yormak does not suggest bringing a motion based in equity, or seeking subrogation until his August 14, 2014 e-mails, where he suggests steps to be taken following filing a notice of appeal and proceeding with the security for costs motion.

[244] When Yormak later suggests that Sabo mishandled the motion before Justice Gorman, Ledroit responds with an e-mail found at exhibit 70 to his affidavit in which he states:

I appeared at the first return of this motion and was ready to argue it but it was adjourned. I have other matters than yours and scheduling conflicts arise.

I would never have sent Ondrej out without reviewing his approach and without having total confidence in him.

Your statement that “the judge did exactly what you junior erroneously advised the court on ordering indemnification without the term that I take over all CRA appeals” is wrong and unfair. The facts argued were as follows:

-We opposed the motion because your (sic) and Ben could not agree on the terms of the indemnification, namely taking over the tax appeal.

-The court had no power to impose terms on the indemnification.

-The court did not have the authority to make the order of indemnification because the parties were not in agreement.

That’s it, plain and simple!

[245] Having considered all of the evidence, I am not satisfied, on a balance of probabilities, that the defendants breached the terms of the retainer by failing to follow instructions to seek an order of subrogation, assignment and/or carriage as part of Benjamin’s motion for partial summary judgement.

B. Negligence

Did the defendants fail to meet the standard of care expected of legal counsel

[246] Having considered the evidence called at trial in its totality I am not satisfied, on a balance of probabilities, that the defendants breached the standard of care expected of legal counsel.

Lack of expert evidence

[247] I find the absence of expert evidence with respect to the reasonable degree of skill and knowledge that would be expected of a normal, prudent, practitioner of the same experience and standing as the defendants to be fatal to the plaintiff’s claim. This applies to both Sabo, who was a fairly new lawyer at the time, and Ledroit who was a specialist in civil litigation.

[248] I find that the allegations of negligence in this case are not “non-technical matters” or those which “an ordinary person may be expected to have knowledge”. Nor are they so egregious that it would be obvious that the defendants conduct fell short of the standard of care even without knowing precisely the parameters of that standard.

[249] In submissions, Yormak relied on the decision of Malton v. Attatia, 2013 ABQB 642, [2013] A.J. No. 1186 (Alt.Q.B.) and argued that this was “a seminal case” demonstrating that a trial judge could rely on his/her own experience and knowledge of the law in assessing a solicitor’s negligence case.

[250] I note that this decision was overturned by the Alberta Court of Appeal in Malton v. Attatia, 2016 ABCA 130. In overturning the decision, the Alberta Court of Appeal noted at para. 52.

Regardless of whether the conclusion was correct in law, the result in this case was that the trial judge essentially relied on her own view as to how the litigation ought to have been conducted, constructing a theory of liability and damages as she wrote her decision. The result was that she improperly entered into the fray and awarded damages on a theory not put to the parties.

The motion for security for costs

[251] Yormak alleges that the defendants were negligent when they did not pursue the motion for security for costs in a timely manner.

[252] In order to assess whether the defendants met the standard of care with respect to the motion for security for costs I would need evidence of the following:

(6) The practice and procedure of scheduling long motions for hearing in Middlesex County in 2013/2014;

(7) The availability of dates for long motions in Middlesex County in 2013 and 2014;

(8) Whether it would fall within the normal practice of prudent counsel to accommodate the scheduling conflicts of opposing counsel when selecting dates;

(9) What steps would be available and/or expected of a prudent lawyer to expedite the hearing of the motion;

(10) The significance (legal or tactical) of not proceeding with the hearing on May 28, 2014 and whether any prejudice would flow from an adjournment of three months;

(11) Whether it was likely that a court would have permitted the introduction of the late filed materials given the circumstances in this case;

(12) Whether it was within the normal practice of prudent counsel to seek to adjourn the May date when faced with late filed materials; and

(13) Whether it would have been within the normal practice of prudent counsel to proceed with the May date in the absence of cross-examination on the late filed affidavit.

[253] None of these issues are “non-technical matters” or those which “an ordinary person may be expected to have knowledge”.

[254] I have no evidence with respect to the practice and procedure of scheduling long motions in the specific jurisdiction where the Yormak v. Yormak proceedings took place. Nor do I have any evidence about the availability of dates in 2014. Given the absence of this evidence, I am unable to assess whether the defendants were negligent in scheduling the motion for security for costs.

[255] I have no expert evidence with respect to whether there is any legal or tactical advantage to arguing (as opposed to filing) a motion for security for costs early on in the proceedings. The materials provided to me are divided on this point.

[256] In submissions, Yormak referred to materials authored by Sahar Cadili entitled Motions for Security for Costs, Ontario Bar Association Litigation Costs, found at tab 5 of his book of authorities. At page 6 of this paper, the author writes:

A motion for security for costs must be made promptly as it can be denied where there has been undue delay in bringing the motion. The reason for requiring such motions to be brought in a timely manner is to prevent the plaintiff from being lulled into a false sense of security that it can proceed to trial without posting security.

[257] The author goes on to state on the same page:

More recently, however, the courts have found that mere delay in and of itself is not the determining factor. The delay must be found to have been unreasonable for it to have an impact on the end result. Any delay must therefore be explained a defendant’s failure to provide a satisfactory explanation for the delay can be a basis for the court to deny security.

[258] With respect to the adjournment of the May special assignment date, there is no evidence before me that the decision to adjourn the motion fell outside the range of reasonable steps that would be taken by competent litigation counsel faced with the late filing of materials. Ledroit testified that there had been extensive settlement discussions and that a court would likely have provided some leniency with respect the late filing of materials. I have received no evidence that contradicts this.

[259] Yormak submits that the motion should have proceeded in May because Benjamin’s impecuniosity would have strengthened his argument for security for costs. Ledroit points out that a court may have had sympathy for Benjamin given that he was being chased by the CRA for an obligation that was clearly Yormak’s.

[260] In my view, the success of the motion, had it proceeded on the May date, was not a foregone conclusion. Indeed, in the Cadili article cited by Yormak, the author writes: “Generally a plaintiff is able to resist a motion for security for costs if it is able to show that: it has sufficient assets in Ontario; or that it is impecunious and that an injustice would result if it were not allowed to proceed with its claim”.

[261] In my view, in the absence of expert evidence, I am unable to make any finding that the defendants’ handling of the motion for security for costs fell outside that which would be expected of reasonable and prudent counsel in the circumstances they faced.

Failure to raise subrogation, carriage and/or assignment of the CRA proceedings

[262] Yormak alleges that the defendants were negligent by failing to raise the issue of subrogation, carriage and/or assignment as part of his defence. He argues that this should have been pled as part of his statement of defence and/or as part of a counterclaim and/or raised in a motion. It is his view that it was “plain and obvious” that this issue should have been raised by his lawyers.

[263] In my view the law in this area is not “obvious” such that an ordinary person may be expected to have knowledge of it. Nor is the failure to raise this issue so egregious that it is obvious that the defendants’ conduct fell short of the standard of care.

[264] In the course of the trial the terms “subrogation”, “carriage” and “assignment” were used interchangeably by the plaintiff. While I am not convinced that all three terms mean the same thing in law, I am satisfied that Yormak wanted to take full control of Benjamin’s CRA appeal. He wanted to do this because he did not trust his son and worried that he would do something to prejudice Yormak’s position in the CRA proceedings.

[265] It is clear from the settlement discussions that Benjamin feared that if his father took over carriage of the entire CRA appeal, he might not ultimately pay the amount assessed to be owing on the Baird estate and the CRA would then hold him liable. It was for that reason Benjamin wanted to preserve his right to assert his own interests in the appeal. At one point during the settlement negotiations, Benjamin suggested that he might be prepared to agree to allow his father to take full carriage of the CRA proceedings if his father provided security for any order ultimately made. Yormak would not agree to this.

[266] It is against this backdrop that Yormak alleges that it was “obvious” or “law 101” that his lawyers should have either brought a counter claim requesting an order that he be permitted to take over carriage of the entire CRA proceeding or brought some type of motion that would have resulted in such an order.

[267] Yormak submits that based on the of law of subrogation, once his son received indemnification he should have been given full control of the CRA proceedings. He relies on the equitable principle of subrogation that arises in insurance law and points to Zurich Insurance Co. v. Ison T.H. Auto Sales Inc., 2011 ONSC 1870 as authority for his argument.

[268] Zurich Insurance stands for the proposition that where full indemnification has been provided, an insurer may stand in the shoes of the insured and assert an insured’s claims against a third party. Zurich Insurance Co. v. Ison T.H. Auto Sales Inc., supra. at paras. 70 to 73.

[269] In Zurich, the court held that there may be cases where the insurer’s interest is so vastly disproportionate to the insured’s interest, that it would be unreasonable to allow the latter to control the proceedings. Zurich Insurance Co. v. Ison T.H. Auto Sales Inc., supra. at para. 78

[270] In Zurich, the parties were pursuing an action seeking compensation from a third party for damages/losses incurred. Both parties were ad idem with respect to their desire to receive compensation for the damages/losses incurred as a result of the actions of a third party.

[271] I fail to see how the law of subrogation, as outlined in Zurich, assists in this case where Benjamin and Yormak were defending themselves against a claim by the CRA and were not ad idem with respect to their defences.

[272] Yormak wished to argue that he had already paid the taxes, was prejudiced by the CRA’s delay in seeking payment of the taxes or in the alternative that he and his son should share the cost of paying the taxes because his son received some of the proceeds. Benjamin wished to argue that he had never been a true beneficiary to the estate, had never received proceeds from the estate and as such should not be held responsible for any taxes owing.

[273] I have not been provided with any legal authority where the equitable principle of subrogation was applied in circumstances where the parties were defending themselves against a claim for compensation and had different defences.

[274] If this area of the law was “obvious” such that an ordinary person would be expected to have knowledge of it, one would expect that there would be supporting caselaw.

[275] I find that in the absence of expert evidence that Yormak had a valid claim in law or equity for an order of subrogation, assignment and/or carriage of the entire CRA proceeding and that a civil litigation lawyer should have known this, I cannot make any finding with respect to whether the failure to seek such an order fell below the standard of care expected of a reasonable, prudent lawyer.

[276] With respect to the argument that Ledroit should have known that these remedies were available because he was a civil litigation specialist, I have received no evidence to support this. I have no evidence about what the higher standard of care would be for a civil litigation specialist. the only evidence I have is from Ledroit who testified that did not believe that these were viable arguments.

[277] As such, I am not satisfied that the plaintiff has established, on a balance of probabilities, that the defendants’ failure to seek an order for subrogation, assignment and/or carriage of the CRA proceedings amounted to negligence.

Did the negligence of the defendants cause or contribute to the damage/loss alleged

[278] If I am incorrect with respect to my finding that the plaintiff has not establish that the defendants failed to meet the requisite standard of care, I must go on to examine whether the plaintiff has established on a balance of probabilities that the conduct of the defendants caused the loss/damage which the plaintiff complains of.

[279] The manner in which “loss”, “damage” or “lost chance” was presented by Yormak in this case was confusing to the court. Yormak agreed that he suffered no loss or damage as a result of the ultimate outcome of the CRA proceedings. He also advised the court that the Yormak v. Yormak action was ultimately stayed due to his son’s bankruptcy. As such, he did not suffer any “loss” or “damage” in the outcome of either proceeding due to the defendants’ alleged negligence.

[280] Yormak submits that he suffered the following damage/loss as a result of the defendants’ negligence:

1. He suffered damages in the form of the legal time that he was required to expend in order to mitigate the position the defendants had left him in following Benjamin’s successful motion for partial summary judgement;

2. He lost a chance with respect to the motion for security for costs, which should be compensated;

3. He suffered damages in the form of costs awards made against him in the proceedings both pre and post retainer; and

4. He should not have to pay the defendant’s legal fees. In the alternative, the court should exercise its “inherent” jurisdiction to take a global “equitable” review of the defendants’ accounts and reduce them to zero.

Yormak’s personal legal fees incurred during mitigation

[281] With respect to the submission that Yormak should be entitled to compensation for his own legal fees incurred while attempting to “mitigate” the damage caused by the defendants, one must first determine whether he has established, on a balance of probabilities, that there was any damage to mitigate.

[282] When the retainer was terminated by Yormak in August, 2014, the civil action was still ongoing. By that point the parties had exchanged pleadings, engaged in extensive settlement discussions, had argued a motion for partial summary judgement and production and were about to proceed with a motion for security for costs.

[283] Assuming, for the purposes of this analysis, that the defendants were negligent by failing to argue the security for costs motion in May, 2014, the plaintiff has failed to establish that he suffered any loss or damage as a result. I have received no evidence (expert or otherwise) that the failure to proceed in May caused any damage to Yormak’s position in the civil action.

[284] Assuming, for the purposes of this analysis, that the defendants were negligent by failing to seek an order for subrogation, assignment and/or carriage of the CRA proceedings as part of the motion for partial summary judgement or otherwise, I have received no evidence (expert or otherwise) that the Yormak suffered any loss or damage as a result.

[285] With respect to the argument that Yormak was required to take further steps to mitigate the risk of damage, I note that all of the steps taken were unsuccessful and/or abandoned.

[286] I find that it would not be appropriate to hold the defendants responsible for the personal legal costs incurred as a result of the decisions made by Yormak to pursue weak or meritless motions.

[287] I have not received any objective evidence that the steps taken by Yormak were necessary, warranted or required as a result of the defendants’ actions. In my view, the steps taken by Yormak would have been taken regardless of the defendants’ actions given his litigious approach to the proceedings.

[288] I find that the legal costs incurred by Yormak following the retainer are not “damages” or a “loss” incurred due to the actions of the defendants.

Loss of chance – security for costs motion

[289] Yormak submits that he should be compensated for the loss of chance related to the security for costs motion.

[290] As part of my analysis, I must first consider whether the four criteria as set out in Folland v. Reardon, supra. have been met.

[291] The first criteria requires the plaintiff to establish, on a balance of probabilities that “but for” the defendants’ wrongful conduct he had a chance to obtain a benefit or avoid a loss.

[292] I find that Yormak’s claim fails to meet the first criteria. I have not received any evidence (expert or otherwise) that Yormak had chance to obtain a benefit or avoid a loss if the security for costs motion had been argued earlier. At its highest, Ledroit testified that an order for security for costs might put pressure on the opposing party

[293] Assuming I accept that Yormak may have had a chance of obtaining a tactical advantage had the motion for security for costs been argued earlier, I find that the claim fails to meet the second criteria which requires the plaintiff to demonstrate that the chance lost was sufficiently real and significant to rise above mere speculation. I simply do not have any evidence (expert or otherwise) upon which to base a finding that the chance lost was sufficiently real and significant.

[294] It is well recognized that an order for security for costs is a discretionary order and should not act as a bar to a genuine claim. In this case there was no real dispute that Benjamin had been the beneficiary to the Baird estate in name only and that Yormak had received the monies from the Baird estate. Given that Benjamin was now faced with having to pay the taxes for estate funds that he never received, he clearly had a meritorious claim that his father should either account for where the estate funds went or fully indemnify him in the CRA proceedings.

[295] The only evidence that I have with respect to the likelihood of success comes from Ledroit who testified that he did not think they would be successful given the equities in the case.

[296] Even if the motion was successful, I would have to speculate as to the form the order would take.

[297] The third criteria requires the plaintiff to demonstrate that whether he would have avoided the loss or made a gain depended on someone or something other than himself. In this case, the loss or gain depended on the decision of the court hearing the motion.

[298] The fourth criteria requires the plaintiff to demonstrate that the lost chance had some practical value. Again, I have not received any evidence that the lost chance had some practical value other than to possibly place pressure on Benjamin to abandon his claim. In my view it is speculative to assume that Benjamin would have abandoned his claim when faced with a security for costs order. Particularly considering that Benjamin was facing a significant liability with the CRA.

[299] In conclusion, I am not satisfied that the four criteria as set out in Folland v. Reardon, supra. have been met in this case, such that the plaintiff would be entitled to recover damages for a “lost chance” to bring the security for costs motion earlier.

The costs orders

[300] Pursuant to section 131 of the Courts of Justice Act, R.S.O. 1990, Chap. C.43, the costs of and incidental to a proceeding or step in a proceeding are in the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid.

[301] In this case, a court has ordered that Yormak pay certain costs that have been incidental to steps taken in the Yormak v. Yormak proceedings. It is agreed by the parties that Yormak has never paid any of these court orders, nor have any steps been taken by Benjamin to enforce them.

[302] The retainer agreement between Yormak and the defendants states “I understand that Ledroit Law is not responsible for paying any award of costs made against me and that I am responsible for paying this amount”.

[303] Yormak incurred one costs award during the course of the retainer. This was following Yormak’s unsuccessful production motion and Benjamin’s successful motion for partial summary judgement.

[304] The defendants clearly should not have to assume responsibility for costs associated with the unsuccessful production motion as this was brought in accordance with Yormak’s instructions.

[305] With respect to the costs associated with the motion for partial summary judgement, even if Yormak was successful in having an order for subrogation, assignment and/or carriage attach to the indemnity order, Benjamin would have still been successful in the motion and would have received an order of indemnity. I have not been provided with any evidence that if Justice Gorman had imposed the terms sought by Yormak, that she would probably not have ordered costs against him.

[306] On the totality of the evidence called at trial, I find that I cannot make any finding that the costs award attached to these two motions would have been avoided but for the alleged negligence of the defendants.

[307] Yormak submits that the defendants should be held responsible for costs awards made following the termination of the retainer. I disagree. The costs orders incurred following the termination of the retainer were due to Yormak’s decision to take steps that were unsuccessful. At the time Yormak was an experienced lawyer and would have known that costs consequences could attach to any further steps he took in the proceedings. Despite this knowledge, he chose to bring a motion for summary judgement, a motion to dismiss the action, two motions for security for costs, and an appeal of Justice Gorman’s decision. He was unsuccessful in his motions and eventually abandoned the appeal after reaching a settlement with the CRA.

[308] In my view it would be inappropriate to hold the defendants responsible for the unsuccessful actions of Yormak following termination of the retainer.

The defendants’ legal fees

[309] The defendants rendered three accounts in the matter of Yormak v. Yormak. The first account was rendered on January 26, 2014 and was paid. The second account was rendered on June 1, 2014 and the third account was rendered on October 5, 2014. These accounts were not paid.

[310] On March 3, 2015, Yormak took out an order for assessment of the second and third accounts. A hearing was held on November 16, 2015 during which Yormak alleged breach of retainer and negligence on the part of the defendants. On November 23, 2015, the Assessment Officer rendered a decision and reduced the second and third accounts by fifty percent. A transcript of that decision is found at exhibit 77 of the Ledroit affidavit.

[311] On December 15, 2015, Yormak brought a motion to oppose confirmation of the Assessment Officer’s report. On April 5, 2016, Yormak withdrew his objection to the Assessment order. A copy of the notice of withdrawal is found at exhibit 4 of the Sabo affidavit.

[312] On April 5, 2016, Yormak served the defendants with a notice of assessment of the first account.

[313] According to Sabo, the assessment of the first account was heard on August 29, 2016 and ultimately Yormak abandoned the assessment.

[314] According to Yormak the first account was not assessed on August 29th because the defendants argued that the Assessment Officer could not address the allegations of negligence and therefore the Assessment Officer could not proceed with an assessment. According to Yormak, the first account has never been addressed by any court to date.

[315] I have not received a transcript of what transpired on August 29, 2016.

[316] On May 26, 2016, Yormak brought a motion to stay the execution of the assessment certificate relating to the second and third accounts pending the completion of the negligence action. On August 31, 2016, Justice J.N. Morisette issued a conditional stay of execution of the assessment certificate and ordered that the amount owing be paid into the court pending the outcome of the negligence action.

[317] Yormak submits that he should not have to pay the defendants’ legal fees and that the fees that he did pay should be returned to him. He asks the court to take an equitable “global view” of all three accounts and to reduce them to zero.

(a) General damages

[318] In the statement of claim, Yormak claims “general damages” comprised of “repayment of fees and expenses to plaintiff from defendant” and a declaration that no amounts are owed to the defendants by the plaintiff arising from this matter.

[319] The defendants submit that a re-review of legal fees owing would be an abuse of process and is barred by virtue of issue estoppel. They argue that the issues of breach of retainer and negligence were fully before the Assessment Officer with respect to the second and third accounts and that Yormak abandoned his assessment of the first account.

[320] The defendants further submit that the court should not review any of the accounts because the plaintiff has not brought an application for a reference pursuant to section 4 or 11 of the Solicitor’s Act, R.S.O. 1990, c.S.15.

[321] A review of the accounts rendered by the defendants demonstrates that the defendants have billed for work performed on behalf of Yormak in the course of his defence in the Yormak v. Yormak matter.

[322] In order to give effect to Yormak’s submission that he should not have to pay any of the legal fees incurred in the Yormak v. Yormak matter, I would have to be satisfied that all of the work that the defendants performed on Yormak’s behalf was performed negligently. This is not claimed by Yormak nor is it supported by the evidence at trial.

[323] In the course of submissions, Yormak did not point the court to any fee charged that related specifically to negligent work on the part of the defendants.

[324] Assuming for the purposes of this analysis that the defendants failed to follow instructions and/or were negligent in adjourning the security for costs motion, I note that the Assessment Officer who assessed the second and third accounts has already reduced those bills by fifty percent to reflect what he felt was the failure of the defendants to explain the delay and some duplication of work. As such, Yormak has already received a reduction in fees with respect to the security for costs motion.

[325] Assuming for the purposes of this analysis that the defendants did not follow instructions and/or were negligent in the manner in which they handled the motion for summary judgement, Yormak would have incurred the fees necessarily to prepare and respond to that motion in any event.

[326] I am not satisfied that “but for” the negligence of the defendants that Yormak would not have been charged legal fees in his defence of the Yormak v. Yormak matter. There is simply no evidence before me that could support such a conclusion.

[327] In any event, the issues of negligence and breach of retainer have already been raised by Yormak as part of the assessment process and he has received a significant reduction. In my view, even if I were satisfied that “but for” the negligence of the defendants some legal fees would not have been incurred, the plaintiff has already received the equivalent of “damages” in the form of a fifty percent reduction of the second and third bills.

(b) Request for equitable relief – a global review of the accounts

[328] A party may seek equitable remedies concurrently with claims at common law and may choose the remedy that is most advantageous to them. However, at times the distinction between damages and an equitable remedy may be a “difference without a distinction”. Canson Enterprises Ltd. v. Boughton & Co. supra. at para. 27 and 40.

[329] In this case the plaintiff did not seek equitable relief in his amended statement of claim.

[330] Even if I could consider a request for equitable relief in the absence of pleadings seeking this relief, the allegation in this case is that the defendants breached their duty to the plaintiff by failing to exercise the standard of care expected of legal counsel. As such, relief at common law or equity is, in my view, a difference without distinction.

[331] There is some authority that courts should consider equitable compensation in the context of a breach of a fiduciary duty apart from the tort of negligence and breach of contract. Canson Enterprises Ltd. v. Boughton & Co. supra. at paras 61-68. However, Yormak abandoned his claims for breach of fiduciary duty and breach of duty of loyalty.

[332] In my view, it would not be appropriate to consider equitable relief separate and apart from the relief sought at common law for negligence and breach of contract. In any event, the analysis under the common law amply covers any issues that arise in equity.

[333] Yormak submits that I have inherent jurisdiction to assess all three accounts for reasonableness.

[334] If I do have inherent jurisdiction, I decline to exercise it. The plaintiff has already sought an assessment of all three accounts. He has already received the benefit of a reduction of the second and third accounts. In my view it would be inappropriate to conduct another assessment of those accounts.

VI. ISSUE ESTOPPEL

[335] The defendants submit that the plaintiff is estopped from pursuing claims for breach of contract and negligence because both of these issues were before the Assessment Officer when the second and third accounts were assessed and as such issue estoppel applies.

[336] In Danyluk v. Ainsworth Technologies Inc. 2001 SCC 44, [2001] CarswellOnt 2434 (S.C.C.) at para. 33, the Supreme Court set out a two-step analysis to be applied in determining whether issue estoppel arises in a particular case. The first stage requires the court to determine whether the preconditions to the operation of issue estoppel have been met. If the court is satisfied that they have been met, the court must still go on to consider “whether, as a matter of discretion, issue estoppel ought to be applied”.

[337] The doctrine of issue estoppel precludes a party from relitigating any issues that have been determined in a prior proceeding. There are three preconditions of issue estoppel: (1) the same question has been decided; (2) the judicial decision which is said to create the estoppel was final; and (3) the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies. Danyluk v. Ainsworth Technologies Inc., 1998 CarswellOnt 4679 (Ont.C.A.) at para. 3.

[338] Having reviewed the Assessment’s Officer’s reasons dated November, 2015, it is unclear to me if he fully resolved the issues of negligence or breach of contract, despite both being argued before him. For example, when addressing the issue of having Sabo attend the motions, the Assessment Officer states at page 4 “Again, obviously if that is to be pursued, I think it would have to be pursued in another forum. I don’t know how I can correctly deal with that issue”.

[339] When dealing with the skills and competence of the defendants, the Assessment Officer states at page 5: “Remember, there has to be a negligent mistake by the solicitor under the authorities and I guess again, as I said before if there’s to be an action of negligence so be it. but I don’t think you can use the assessment process as, in a sense a shortcut to that”.

[340] Given these comments, I am not satisfied that the questions of negligence and/or breach of contract were fully decided by the Assessment Officer or that there was a judicial decision on these issues. As such, in my view the preconditions for issue estoppel have not been met such that they would bar this action.

VII. CONCLUSION

[341] For the reasons expressed above, I am not satisfied, on a balance of probabilities, the defendants were negligent in their legal representation of the plaintiff;

[342] Further, I am not satisfied, on a balance of probabilities, that the defendants failed to follow the instructions of the plaintiff and thereby breached the terms of the retainer agreement; and

[343] Finally, I am not satisfied, on a balance of probabilities, that the plaintiff suffered any loss, damage or loss of chance as a result of the negligence and/or breach of retainer agreement by the defendants.

[344] As such, the action is dismissed.

VIII. COSTS

[345] If the parties cannot agree on costs, the plaintiff shall serve and file written submissions, not to exceed three pages exclusive of his costs outline, within 15 days of the release of this decision.

[346] Upon receipt of the plaintiff’s written submissions, the defendants shall have 10 days in which to serve and file written submission of the same length and format.

Justice S.K. Stothart

Released: August 16, 2022

Yormak v. Ledroit et.al., 2022 ONSC 4615

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Steven R. Yormak

Plaintiff

– and –

Ledroit Professional Corporation,

Paul Ledroit and Ondrej Sabo

Defendants

REASONS FOR DECISION

S.K. STOTHART

Released: August 16, 2022