Reasons on Motion to Strike

Court File No.: CV-23-00705515
Date: 2025-03-21
Superior Court of Justice – Ontario
RE: Allan Mann, Plaintiff
AND: Edward H. Royle and James Miglin, Defendants
Before: Schabas J.
Counsel: Ryann Atkins for the Defendants/Moving Parties
Allan Mann in person
Heard: March 19, 2025

Overview

[1] The plaintiff, Allan Mann, has sued his former criminal defence lawyers asserting, essentially, that they failed to properly represent him in his criminal proceeding and that, as a result, he was incarcerated for longer than he should have been and was deprived of the ability to raise affirmative defences and legal arguments.

[2] As the statement of claim asserts, the plaintiff seeks damages against each defendant for “ineffective assistance of counsel, gross incompetence and diminished legal representations, willful dereliction of duty with impunity, gross deceptive legal acts, sham legal misrepresentations, blatant gross negligence of legal duties”, and a range of other wrongs related to the defendants’ representation of him.

[3] The defendants seek an order striking out the claim and dismissing the action as an abuse of process or, in the alternative, for failing to disclose a cause of action.

[4] The motion is granted.

Background

[5] Following his arrest in the United States for benefits fraud in 2018, and after serving time in custody there, the plaintiff was extradited to Canada in about February 2020, where he was charged with taking and concealing a child in contravention of a custody order contrary to section 282(1) of the Criminal Code.

[6] The charges alleged that in June 1987 the plaintiff, who was required to return his 21-month old son to his ex-wife, disappeared with the baby, taking the child to the United States. When he left with the child Mr. Mann sent a letter to his ex-wife stating:

"FAREWELL, DON'T CALL US, JERMAINE WOULD CALL YOU IF HE COULD REMEMBER YOUR NUMBER."

[7] Mr. Mann and his son assumed new identities and lived for over 30 years undetected in the United States. Mr. Mann’s ex-wife, the mother of the child, did not see or know the whereabouts of her son for those 30 years, or even if her son was alive. Mr. Mann told his son that his mother was dead.

[8] Upon his return to Canada, he was held in pre-trial custody. He retained the defendants in May 2020. On September 10, 2021, Mr. Mann entered a guilty plea to taking his son, in violation of a court order with intent to deprive his wife of custody.

[9] Justice R.F. Goldstein conducted a plea inquiry and was satisfied that the guilty plea could be entered. Mr. Mann was accordingly convicted of the charge against him. Goldstein J. accepted a joint submission for one day in custody in light of credit for three years of pre-sentence custody. Goldstein J. did not accept the joint submission on the amount of probation, adding an additional year to the two years submitted by counsel.

[10] When Justice Goldstein passed sentence on Mr. Mann, he observed that what Mr. Mann had done was “despicable”, and that he had “committed a terrible crime and harmed many people.” Goldstein J. stated that Mr. Mann was “very, very, very lucky that he is not receiving a sentence that is much, much, much higher”: R. v. Mann, 2021 ONSC 7071 at para. 12.

[11] Mr. Mann did not appeal his conviction or sentence—whether on the basis of ineffective assistance of counsel or otherwise—and the time to do so has long since expired. Mr. Mann's sentence has been fully served.

Analysis

[12] I agree with counsel for the defendants that this action is an improper collateral attack on Mr. Mann's criminal conviction and sentence. The Court of Appeal has repeatedly held that a convicted client cannot sue their defence lawyer for negligence unless the conviction or sentence is overturned on appeal. Such an action is an abuse of process and should be dismissed. As the Court of Appeal stated in Arconti v. Fenton, 2020 ONCA 489 at para. 15, “a solicitor’s negligence claim that depends, for its success, on showing that the client would have been acquitted of a criminal charge but for the lawyer’s negligence, involves a collateral attack on the criminal adjudicative process, and is thus an abuse of process.”

[13] In short, suing one’s lawyer for negligence or improper and inadequate representation requires relitigating the criminal charges, which can only be done in criminal proceedings. Further, to prevail, Mr. Mann must show that "but for" the negligence of the Defendants, he would have been acquitted or given a lighter sentence which, practically speaking, would have required him to have been released on bail since he was sentenced to just one day plus time served.

[14] The plaintiff’s main argument before me was that he could not obtain information on which to commence an appeal. He complains that he did not obtain disclosure from the defendants, and that he was unaware of the file number of his case in the Superior Court. This is not an answer to the collateral attack problem. Further, Mr. Mann was able to commence this action in 2023, he has made complaints to Legal Aid Ontario and the Law Society of Ontario. In the almost four years since his guilty plea he has taken no steps to have that plea set aside or otherwise challenged it on appeal. Of course, there is good reason for that, as he received a very favourable disposition.

[15] Mr. Mann also complains, as does his pleading, of what he feels was poor treatment by the defendants—who he alleges used profane language, missed court appearances and did not communicate with him appropriately, all of which caused him emotional distress. However, these complaints arise from and are part of Mr. Mann’s complaint of inadequate representation while he was in custody and experiencing the expected stress and anxiety that is inherent in being in pre-trial detention. His complaints of this nature, as pleaded, do not create an independent cause of action and may be better addressed, if at all, in another forum such as through the Law Society.

[16] In short, Mr. Mann’s submissions to me were, like his remarks to Goldstein J., a series of complaints in which he blamed everybody but himself for what happened and for his failure to appeal.

[17] The statement of claim is therefore an abuse of process and does not disclose a cause of action. It is struck out without leave to amend, and the action is dismissed.

[18] Based on the Costs Outline provided, I fix costs on a partial indemnity basis in the amount of $4,000 including HST and disbursements. The plaintiff shall pay this sum to the defendants within 30 days.

Schabas J.
Date: March 21, 2025