Court File and Parties

Court File No.: CV-14-60040
Date: 2025/04/10
Court: Superior Court of Justice - Ontario

Parties:
The Estate of Michael Meehan, by his litigation administrator Anthony Meehan, Anne Meehan, by her litigation guardian Anthony Meehan, Michael Meehan, Katarina Meehan, Kathleen Meehan, and Anthony Meehan

And:
Donald Good, Donald R. Good A Professional Corporation o/a Donald R. Good & Associates, Ian Stauffer, John Cardill, and Tierney Stauffer LLP

Before: Justice A. Kaufman

Counsel:
Bryan D. Rumble, for the Plaintiffs
Joseph Y. Obagi, for the Defendant, John Cardill

Heard: 2025-04-01

Endorsement

Introduction

[1] The plaintiffs bring this mid-trial motion seeking an order that the doctrine of abuse of process prevents the defendant, John Cardill, from relitigating the issue of whether their former solicitor, Donald Good, breached the requisite standard of care in settling their personal injury actions. They argue that this issue has been conclusively determined in the endorsement of the Honourable Justice Hackland dated January 31, 2012, and ought not be revisited.

Background

[2] This motion stems from a unique set of facts and requires contextualization. Donald Good is a lawyer who represented the plaintiffs in personal injury litigation related to a motor vehicle accident that occurred on September 26, 1999. He acted as counsel of record for both a tort action and an accident benefits action. These actions were settled before trial through minutes of settlement dated June 16, 2005, and January 18, 2007.

[3] Following the settlement of these actions, the plaintiffs retained the defendant, John Cardill, to assess Mr. Good’s fees in accordance with the Solicitors Act.

[4] The plaintiffs brought an application to have the assessment conducted by a Judge of the Superior Court instead of an Assessment Officer. In a letter dated March 9, 2009, addressed to Mr. Good, Mr. Cardill indicated that there were "serious issues regarding [his] handling of [the actions]," which would be addressed during the assessment. He also noted that a judge’s finding of negligence could potentially lead to issue estoppel or res judicata. He wrote:

I would have thought that you would want this assessment to proceed in front of a Judge. If there are claims of negligence involved, you may want to advise your insurer lest you be in breach of your policy. A determination of negligence in one forum may give rise to issue estoppel or res judicata in another forum.

[5] The application to have the assessment heard by a Judge was granted on consent. Justice Hackland conducted the assessment over the course of three days. During the assessment, Mr. Cardill obtained an order to be removed as counsel of record, and the plaintiffs subsequently represented themselves. Mr. Good was represented by counsel, Mr. Morrow.

[6] The plaintiffs secured an expert report authored by Tara Sweeney, a solicitor specializing in personal injury and accident benefits litigation. Mr. Good testified at this trial that he received the expert report shortly before the hearing but chose to proceed with the assessment and did not seek an adjournment. He acknowledged that he was not restricted in the evidence he could present at the hearing. There is no indication that the hearing before Justice Hackland was anything other than fair.

Justice Hackland’s Conclusions

[7] Justice Hackland accepted Ms. Sweeney’s opinion that the plaintiffs’ "claims were not worked up and presented properly" and that the "adequacy of the settlement was very much in question." He found that Mr. Good had failed to take necessary steps, such as obtaining a future care report or life care plan, and noted that Ms. Meehan, at the very least, was in an "extremely strong position to secure a significant lump sum SABS settlement or alternatively draw substantial sums in SABS benefits throughout her lifetime." The plaintiffs did not contest the adequacy of the tort settlement before Justice Hackland; instead, they argued that the fees charged in the tort action were excessive.

[8] Justice Hackland substantially reduced Mr. Good’s claimed fees. Based on his conclusion that Mr. Good had not “properly worked up” these files and that the settlements were “questionable at best”, he determined that Mr. Good was entitled to $35,000 on a quantum meruit basis.

[9] Neither party appealed Justice Hackland’s order.

The Issues in This Action

[10] The plaintiffs initiated this action against Mr. Cardill for failing to inform them that their negligence claim against Mr. Good was subject to a two-year limitation period. They did not commence an action against Mr. Good within that limitation period. As a result, in this action, the plaintiffs must demonstrate that Mr. Cardill owed them a duty of care, that he breached the standard of care, and that they suffered damages as a result of his actions or omissions. To prove damages, they will be required to prove that Mr. Good breached the applicable standard of care.

[11] In defending this action, Mr. Cardill intends to argue that the plaintiffs did not suffer damages, contending that the settlement secured by Mr. Good was not improvident. This position is contrary to the one he took, in his role of counsel representing a client, during the assessment of Mr. Good’s fees.

Issue

[12] The issue in this motion is whether the doctrine of abuse of process prevents Mr. Cardill from revisiting matters determined by Justice Hackland during the assessment of Mr. Good’s fees. I use the term “revisiting” instead of “relitigating” because Mr. Cardill was not a litigant in the context of the costs assessment.

[13] The plaintiffs correctly acknowledge that the doctrines of issue estoppel and res judicata do not apply in this case, as these doctrines require the same parties or their privies to be involved in the prior litigation. Here, Mr. Cardill was the lawyer retained by the Meehans for the assessment of Mr. Good’s fees; he was neither a party nor a privy in that proceeding.

The Doctrine of Abuse of Process

[14] The doctrine of abuse of process focuses on the integrity of the adjudicative process.
It is a discretionary principle arising from the court's inherent duty and authority to prevent the misuse of its procedures, thereby maintaining public confidence in the proper administration of justice. Its aims include ensuring the orderly, efficient, timely, and principled resolution of civil disputes.

[15] Abuse of process may arise when there is a relitigation of issues that have previously been adjudicated in another proceeding. Relitigation carries significant detrimental consequences and should be avoided unless circumstances indicate that it is necessary to enhance the credibility and effectiveness of the adjudicative process as a whole. The law aims to prevent relitigation for two primary reasons: (1) to avoid overlap and the waste of judicial resources, and (2) to avoid the risk of inconsistent findings.

[16] The doctrine of abuse of process should be applied sparingly and only in the clearest cases, when permitting the action to proceed would undermine the integrity of the administration of justice. Merely engaging in relitigation is not, however, by itself, a sufficient basis to establish an abuse of process.

[17] In certain instances, relitigation may serve to enhance, rather than undermine, the integrity of the judicial system. This can occur in situations such as: (1) when the initial proceeding is tainted by fraud or dishonesty; (2) when new, previously unavailable evidence conclusively undermines the original outcome; or (3) when fairness necessitates that the original result should not be binding in the new context. Accordingly, a court may exercise its discretion to avoid applying the doctrine of abuse of process when its application would result in injustice. Ultimately, the purpose of doctrines like abuse of process is to support the orderly administration of justice, but not at the expense of real injustice in specific cases. This discretion is referred to as the court’s “residual discretion,” and in the context of court-to-court proceedings, it is to be accorded a very limited application.

[18] Ultimately, the exercise of residual discretion to refrain from applying the doctrine of abuse of process is governed by considerations of fairness. In deciding whether to exercise this discretion, the court must evaluate whether it would be fair to apply abuse of process in the circumstances presented. Generally, the unfairness associated with applying abuse of process may arise in two main ways: (1) when there has been unfairness in the prior proceedings; and (2) even when the prior proceedings were conducted fairly and properly relative to their purposes, using the results of that process to bar a subsequent claim may still be unjust.

[19] In this case, there are no allegations of unfairness in the prior proceedings. Therefore, the determination of whether this court should exercise its residual discretion to refrain from applying the doctrine of abuse of process hinges on whether it would nonetheless be unfair to use the results of the prior process to bar the subsequent claims. The relevant factors in this more nuanced inquiry may include, but are not limited to:

• The nature and extent of any differences between the purposes, processes or stakes involved in the two proceedings;
• The reasonable expectations of the parties in relation to the scope and effect of the prior proceeding as informed by the text and purpose of the enabling legislation;
• The risk of adding to the complexity and length of the estoppel-creating proceeding by attaching undue weight to its results through the application of abuse of process;
• The availability of an appeal from the finding in the abuse of process-creating proceeding; and
• Whether, in all the circumstances of the case, the application of abuse of process would work an injustice.

[20] The list of relevant factors for exercising this residual discretion is not exhaustive, and there may be additional relevant factors not summarized above. One such relevant factor is whether a party to the second proceeding was not a party (i.e., was a third party) and/or did not meaningfully participate in the first proceeding.

Analysis

[21] The plaintiffs contend that the doctrine of abuse of process is a flexible principle that is not constrained by the specific requirements of issue estoppel, such as the mutuality of parties in both proceedings. They argue that relitigation constitutes a waste of judicial resources if it results in the same outcome and undermines the credibility of the judicial process if it does not. The plaintiffs emphasize that Mr. Good was not hindered from presenting any evidence or raising any arguments he deemed appropriate, and they assert that there is no suggestion that the hearing before Justice Hackland was anything other than fair and equitable.

[22] Despite Mr. Rumble’s able arguments, I am not convinced that the doctrine of abuse of process should prevent Mr. Cardill from contending that the settlements at issue in this action were not improvident. I arrive at this conclusion for the following reasons.

[23] First, Justice Hackland’s endorsement was rendered in the context of a costs assessment. While he determined that Mr. Good failed to properly work up the SABS claim, he did not conclude that the SABS settlement was improvident; rather, he stated that the adequacy of the SABS settlement was “questionable”. In my view, these findings are not sufficiently definitive to bar Mr. Cardill from arguing that the settlements were adequate under the circumstances.

[24] Secondly, during the assessment, the plaintiffs did not challenge the adequacy of the tort settlement, and Justice Hackland made no findings on this issue. Consequently, this trial will still necessitate an examination of Mr. Good’s handling of the tort claim and the adequacy of that settlement. The court considers that applying the doctrine of abuse of process would not lead to significant savings of judicial resources or reduce costs for the parties involved.

[25] The most compelling reason to decline to apply the doctrine in this case is that it would be manifestly unfair to Mr. Cardill.

[26] Mr. Cardill was a lawyer retained to advocate for the Meehans’ interests. The Law Society of Ontario’s Rules of Professional Conduct, s. 5.1.1, Commentary 1, requires lawyers in adversarial situations to uphold their duty to clients:

to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law.

[27] Mr. Cardill had no personal stake in the outcome of the costs assessment, and he had no indication that the Meehans were contemplating an action against him at that time. In this litigation, Mr. Cardill is a defendant who is entitled to make a full answer and defence. Not only did he lack the opportunity to advocate for his own interests in the proceedings before Justice Hackland, but he was compelled to advance a position that was contrary to his own.

[28] Applying the doctrine of abuse of process in this case would lead to a situation where Mr. Cardill is held personally accountable for decisions he did not have a chance to influence or contest, thereby undermining the fairness of the judicial process.

Disposition

[29] For the preceding reasons, the plaintiffs’ motion is dismissed.

Justice A. Kaufman
Date: 2025-04-10