Court File and Parties
COURT FILE NO.: CV-21-1855
DATE: 20221118
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SVITLANA MEZIKHOVYCH Plaintiff
– and –
MARY KOKOSIS Defendant
Self represented, for the Plaintiff
Michael R. Kestenberg, for the Defendant
HEARD: November 16, 2022
REASONS FOR JUDGMENT
LEIBOVICH J.
[1] This is a motion for summary judgment brought pursuant to Rule 20.01(1) of the Rules of Civil Procedure, R.R.O 1990, Reg. 194.
[2] The plaintiff was employed as a personal support worker with ParaMed Home Health Care, a division of Extendicare (Canada) Inc. (“Extendicare”). The plaintiff raised a harassment complaint against a District Director with ParaMed. The defendant, who is a lawyer, was retained by Extendicare to investigate the harassment complaint and provide it with a report. She provided the report and found that there was no inappropriate behaviour. The plaintiff was subsequently fired for not providing some requested medical documentation. The plaintiff, who is self represented, has commenced an action against her former employer. However, she has also commenced a separate action against the defendant in this case, Ms. Kokosis, the lawyer who was retained to conduct the investigation and prepare the report. The plaintiff asserts that the defendant conducted a poor investigation, resulting in her complaint being dismissed and her subsequent firing.
[3] The defendant has brought this motion for summary judgment and asserts that:
The defendant was retained by Extendicare to conduct the investigation and accordingly, owed no duty to the plaintiff; and
the claim is statute barred.
[4] I agree with the defendant on both points and that summary judgment should be granted. There is no genuine issue requiring a trial. The defendant owed no duty of care to the plaintiff. She was not retained by the plaintiff. In addition, the complaint is statute barred as it was started outside the limitation period.
Law and Analysis
[5] The test for summary judgment is set out in Rule 20.04 of the Rules of Civil Procedure. The court shall grant summary judgement if:
a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or
b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.
[6] Rule 20.04(2.1) of the Rules of Civil Procedure states that the judge may exercise any of the following powers for the purpose, unless it is in the interest of the justice for such powers to be exercised only at trial:
Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.
[7] As stated by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, 2014 at para. 43:
The Ontario amendments changed the test for summary judgment from asking whether the case presents ‘a genuine issue for trial” to asking whether there is a “genuine interest requiring a trial”. The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure. Further, it eliminated the presumption of substantial indemnity costs against a party that brought an unsuccessful motion for summary judgment, in order to avoid deterring the use of the procedure.
[8] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. However, “a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute”; Hryniak v. Mauldin at para 50.
No duty owed to the plaintiff
[9] There is no dispute that the defendant was retained by Extendicare to investigate the complaint of workplace harassment. The defendant was not retained by the plaintiff. A lawyer generally owes a duty of care only to his or her own client, and not to persons other than his or her client. There are only very limited circumstances, none of which exists here, when a duty is owed to a non-client. In 2116656 Ontario Inc. v Grant and LLF Lawyers LLP, 2019 ONSC 114 at paras 35-37 the court explained those limited circumstances:
It accordingly will only be under “narrow”, “exceptional”, “very limited” and “well-defined” circumstances that a lawyer can be held to owe a duty to a non-client third party to protect his, her or its economic interests.
In particular, a solicitor who gives guidance to others may owe a duty of care not only to the client who employs him or her, but also to another party who the solicitor knows is relying on his or her skill to save that party from harm. However, having regard to all the circumstances, for such a duty to exist:
i.) The solicitor must know – from placing himself or herself in a position of sufficient proximity with the non-client third party – that the particular non-client third party is relying on his or her skill. Actual knowledge is a prerequisite for a finding of care.
ii.) The non-client third party must in fact rely on the solicitor’s guidance and skill. Reliance is the essence of the proposition.
iii.) The reliance must be reasonable.
If no exceptional duty of care is found to exist between a lawyer and a non-client third party, the question of whether or not the lawyer’s conduct would have fallen below the standard required to fulfil such a duty, had it existed, is no longer relevant: 2116656 Ontario Inc. v Grant and LLF Lawyers LLP, supra, at paras 32-37.
[10] Simply put, the defendant had no duty of care with respect to the plaintiff. The defendant was retained by Extendicare to conduct the investigation surrounding the harassment complaint. She completed the report. The fact that the plaintiff was unhappy with the results of the investigation does not give rise to a cause of action against the defendant. There are no exceptional circumstances in which the defendant can be held to owe a duty of care to the plaintiff.
[11] During oral submissions, the plaintiff advised that she never understood that the defendant was retained by her former employer. The record reveals the opposite. The motion record contains a letter from the defendant to the plaintiff where the defendant very clearly stated that:
Further to my email, this letter confirms that I have been retained by ParaMed Inc. to conduct a workplace investigation into the concerns that you have raised against Mr. Latchmie Singh.
[12] In addition, after the investigation but before the report was completed, the plaintiff emailed the defendant’s law firm to compliment the defendant on her work. The plaintiff noted in her email:
The intent of this e-mail is to express my deep gratitude to the best associate of your law firm -- Mary Kokosis. Mary Kokosis was contacted by my employer -- Extendicare to investigate the issue I was facing at the workplace for many months.
[13] The plaintiff has always known that the defendant was retained by her former employer.
[14] I also note that the essence of the plaintiff’s complaint is that the defendant conducted a poor investigation which led to her complaint being dismissed and her subsequent firing. Yet, the plaintiff informed the defendant that she was terminated because she had failed to provide medical documentation in support of her request for accommodations. There was no dispute that she did not provide the requested documentation.
Statute Barred
[15] Section 4 of the Limitations Act, 2002 provides that unless the Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.
[16] Section 5(1) of the Limitations Act, 2002 provides that a claim is discovered on the earlier of:
(a) the day on which the person with the claim first knew:
i. that the injury, loss or damage had occurred;
ii. that the injury, loss or damage was caused by or contributed to by an act or omission;
iii. that the act or omission was that of the person against whom the claim is made;
iv. that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24, Sched. B, s. 5(1).
[17] Once a limitation period is raised, the onus is on the plaintiff to show that its claim is not statute barred; Farhat v. Monteanu, 2015 ONSC 2119, 125 O.R. (3d) 267 at para. 34.
[18] The Court of Appeal explained when a claim is discoverable in McFlow Capital Corp v James, 2021 ONCA 753 at paras. 34 and 35:
A claim is discovered on the earlier of the day on which a party knew or ought to have known (i) that the injury, loss or damage had occurred, (ii) that it was caused by an act or omission of the person against whom the claim is made, and (iii) that a proceeding would be the appropriate means to seek to remedy it, or that a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of these matters. At this point, the two-year limitation period is triggered: Limitations Act, 2002, S.O. 2002, c. 24, Sched. B., s. 5(1).
In Grant Thornton LLP v. New Brunswick, 2021 SCC 31, at para. 42, Moldaver J., writing for the Court, held that in respect of a similar provision in the New Brunswick Limitations of Actions Act, S.N.B. 2009, c. L-8.5, "a claim is discovered when a plaintiff has knowledge, actual or constructive, of the material facts upon which a plausible inference of liability on the defendant's part can be drawn." Grant Thornton was followed by this court in Gordon Dunk Farms Limited v. HFH Inc., 2021 ONCA 681, at paras. 36-38.
[19] Perrell J. provided a very helpful review of the law regarding the limitation period in Mundell v White, [2022] OJ No 4921, 2022 ONSC 5994 at paras. 75-87. He noted that:
Ignorance of the law does not postpone the commencement of the limitation period; if the claimant knows or ought to know the constituent elements of his or her cause of action, the circumstance that he or she may not appreciate the legal significance of the facts does not postpone the running of the limitation period. [citation omitted] Similarly, knowledge of the full extent of the damages is not required to trigger a limitation period. [ citation omitted]
[20] The plaintiff’s employment was terminated on April 20, 2018. She issued her statement of claim on May 8, 2021. She submits that she only received a copy of the defendant’s report in November 2019 and she only then found out that the defendant did not question witnesses. Given that there was a six-month extension pursuant to Ontario Reg. 73/20 of the Emergency Management and Civil Protection Act, she submits that she was within the limitation period.
[21] I disagree. The evidence is undisputed that the plaintiff wrote to the defendant on May 18, 2018 complaining that she had been fired and complaining about the defendant’s report. The plaintiff wrote:
In your final report you wrote that "based on the evidence, my interview was fair and that Latchmie Singh didn't ask me inappropriate questions." During an interview he did not ask me inappropriate questions other than "Why do you want to work in this office, why not at some other location or insurance company, for example?" But on November 29, 2017 he did ask me about my financial situation, marital status, and who I am living with. And I do not believe that was appropriate.
Also, I can't agree with your statement regarding my "interview being fair": three people at the interview process, including the District Director, is NOT fair.
[22] It appears quite clear that the plaintiff, by May 18, 2018, had seen the report written by the defendant and was taking issue with it. Assuming that there was a cause of action, the limitation period started at the very least by the time the plaintiff wrote to the defendant on May 18, 2018. She filed her claim over 3 years later and it is statute barred.
Costs
[23] Counsel for the defendant wrote to the plaintiff in December 2021 and explained in that letter the legal problems with the action. The plaintiff did not discontinue the action. The defendant therefore seeks costs on a substantial indemnity basis.
[24] The jurisdiction of this court to award costs is found in s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43:
131(1) Subject to the provisions of an Act or rules of court, the costs of and incidental to a proceeding or a 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.
[25] Rule 57.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 sets out the factors for the court to consider on an award of costs:
57.01(1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
i. improper, vexatious or unnecessary, or
ii. taken through negligence, mistake or excessive caution;
(g) a party's denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different solicitor; and
(i) any other matter relevant to the question of costs.
(2) The fact that a party is successful in a proceedings or a step in a proceedings does not prevent the court from awarding costs against the party in a proper case.
[26] The myriad of factors listed in Rule 57.01 ensures that a court considers all the relevant circumstances which allows the court to determine an amount that is fair and reasonable for the unsuccessful party to pay in a particular proceeding, rather than what the actual costs were of the successful litigant: see Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (C.A.); Zesta Engineering v. Cloutier (2002), 2002 CanLII 45084 (ON CA), 164 O.A.C. 234 (C.A.); Moon v. Sher (2004), 2004 CanLII 39005 (ON CA), 246 D.L.R. (4th) 440 (Ont. C.A.); Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239, at para. 43.
[27] An award of costs on a substantial indemnity basis is exceptional. It can arise from the conduct of a party where it rises to a level that is considered reprehensible, egregious and worthy of sanction. As the Court of Appeal stated in Davies v. Clarington, 2009 ONCA 722, 100 O.R. (3d) 66, at para. 40:
In summary, while fixing costs is a discretionary exercise, attracting a high level of deference, it must be on a principled basis. The judicial discretion under rules 49.13 and 57.01 is not so broad as to permit a fundamental change to the law that governs the award of an elevated level of costs. Apart from the operation of rule 49.10, elevated costs should only be awarded on a clear finding of reprehensible conduct on the part of the party against which the cost award is being made. As Austin J.A. established in Scapillati, Strasser should be interpreted to fit within this framework -- as a case where the trial judge implicitly found such egregious behaviour, deserving of sanction.
Also see Mars Canada Inc. v. Bemco Cash & Carry Inc., 2018 ONCA 239 at para 43.
[28] While the plaintiff’s action was ill advised I do not accept that it was egregious, reprehensible, or worthy of sanction. Costs will be issued on a partial indemnity basis. I have been provided with the defendant’s bill of costs. The hours spent on the file appears high and should be adjusted downwards, given that this was a straight-forward motion with relatively little material, without examinations. In addition, costs on a partial indemnity basis should be 60% of the actual costs not 66% as reflected in the bill of costs. Therefore, having regard to all the factors set out in s. 57.01, the plaintiff shall, within 30 days, pay the defendant costs in the amount of $20 000, inclusive of HST and disbursements.
Justice H. Leibovich
Released: November 18, 2022
COURT FILE NO.: CV-21-1855
DATE: 20221118
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SVITLANA MEZIKHOVYCH Plaintiff
– and –
MARY KOKOSIS Defendant
REASONS FOR JUDGMENT
Justice H. Leibovich
Released: November 18, 2022