CITATION: Viele v. Linton, 2026 ONSC 3089
NEWMARKET COURT FILE NO.: CV-22-00003904-0000
DATE: 20260526
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
FRANCES VIELE
Plaintiff/Responding Party
– and –
MARY LINTON also known as MARIA LINTON, JOSEPH VIELE also known as GIUSEPPE VIELE also known as JOE VIELE, JAMES DAVID LINTON, BRANDON JOSEPH CARTER and DUNCAN LINTON LLP
Defendants/Moving Parties
Robert Lepore, for the Plaintiff
Karen Bernofsky, for the Defendants James David Linton, Brandon Joseph Carter, and Duncan Linton LLP
HEARD: April 16, 2026
REASONS ON MOTION UNDER RULE 21.01
J.R. MCCARTHY J.
The Motion
[1] The Defendants, James David Linton, Brandon Joseph Carter, and Duncan Linton LLP, (“the moving parties”) move to strike portions of the statement of claim as against them, dated September 13, 2024.
[2] The Defendants, Mary Linton and Joseph Viele, were present but did not take a position on the motion.
[3] The grounds for the motion are that the claim does not disclose a tenable cause of action against the moving parties and represents an abuse of process under r. 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
Background
[4] The present claim stems from a dispute between siblings born to the late Pasquale “Pat” Viele (“the deceased”).
[5] The moving parties represented the co-defendant estate trustees, Mary Linton and Joseph Viele (“the estate trustees”), from 2018 until they were added as party defendants to the claim in 2024.
Rule 21.01(1)(b) – The Plain and Obvious Test
[6] This rule provides as follows:
21.01 (1) A party may move before a judge,
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
[7] No evidence is admissible on a motion under this clause. The material facts in the statement of claim are assumed to be true, but the conclusory statements of fact are not.
[8] A claim will be dismissed where it is “plain and obvious” that it has no reasonable prospect of success. While pleadings must be read generously, claims that disclose no reasonable cause of action should be weeded out at an early stage: see Shillingford v. 9706151 Canada Ltd. et al, 2025 ONSC 2840, at para. 29.
Rule 21.01(3)(d) – Abuse of Process
[9] This rule provides, in part, as follows:
21.01 (3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
Action Frivolous, Vexatious or Abuse of Process
(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,
and the judge may make an order or grant judgment accordingly.
[10] In a motion under this subrule, evidence is permitted and often essential to the court’s analysis.
The Position of the Moving Parties
[11] The moving parties take three positions on this motion.
[12] First, the moving parties contend that they cannot at law be held liable to the Plaintiff for negligence, breach of contract or breach of fiduciary duty because the moving parties acted for the co-defendant estate trustees and not the Plaintiff. Accordingly, the moving parties assert that they did not owe the Plaintiff a duty of care, nor did a fiduciary or contractual relationship ever exist between themselves and the Plaintiff.
[13] Second, the moving parties argue that the claim is an abuse of process: suing an opposing party’s lawyer for any cause of action for what is essentially the conduct of that lawyer’s client has long been forbidden by the courts.
[14] Finally, the moving parties argue that the claim against them is statute-barred by operation of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
[15] Therefore, the moving parties assert that the claim against them should be struck without leave to amend as none of the defects can be cured with an amendment.
The Position of the Plaintiff
[16] The Plaintiff contends that it is not plain and obvious that the Plaintiff’s claim against the moving parties has no chance of success and is certain to fail. The issues should be determined at trial following a judicial consideration of the complete evidentiary record.
[17] The Plaintiff also argues that the scope of a lawyer’s obligation to third parties has expanded considerably since the “neighbour” and “duty of care” principles were established in the leading cases of Donoghue v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562 (U.K.H.L.), and Hedley Byrne & Co. Ltd. v. Heller & Partners Ltd., [1964] A.C. 465 (U.K.H.L).
The Statement of Claim
[18] The present claim derives from an application launched by the Plaintiff in December 2022 seeking directions and reviving many of the allegations contained in a notice of objection filed in December 2018.
[19] The Plaintiff obtained leave to convert the application into an action in February 2023. She then amended the application to name the moving parties as respondents in October 2023. She also obtained leave to convert the amended application into an action and to file a statement of claim. That claim is the impugned pleading which forms the subject matter of this motion.
[20] There are some discernible new issues raised for the first time in the present pleading: Joseph Viele’s settling of his action against RBC in 2020; the interim distributions from the estate in 2022; the estate’s payment of the moving parties’ legal accounts; and a release requested from the Plaintiff by the estate trustees.
[21] The claim is a lengthy, even ponderous 84 paragraph document which, in large part, is an unnecessarily coloured chronicle of the history of the deceased, his late spouse, and their family. This history precedes an exhaustive narrative pertaining to the deceased’s estate and the activities of the estate trustees, which is then followed by a host of allegations against the estate trustees. The allegations against the moving parties occupy four pages of the claim and include the duty that they had to act in the best interests of both the estate and its beneficiaries. The claim goes on to list 23 different allegations against the moving parties amounting to breach of the duty of care, breach of fiduciary duty, and negligent discharge of their duties to both the estate and the beneficiaries.
Analysis
The Plain and Obvious Test
(i) Negligence
[22] A tenable claim for negligence must establish: 1) the existence of a duty of care; 2) acts or omissions that breach the standard of care; 3) that damages were sustained by the plaintiff; and 4) that the defendant’s breach caused the damage.
[23] The law in Ontario is well-established. Generally, a lawyer owes no duty of care to the clients of opposing counsel in litigation or commercial matters. A lawyer acting in his or her professional capacity owes a duty of care to his or her client, not to the clients represented by opposing counsel: Diamond Contracting Ltd. v. MacDearmid (2006), 2006 24444 (ON CA), 214 O.A.C. 92 (C.A.), at para. 3; Baypark Investments Inc. v. Royal Bank of Canada (2002), 2002 49402 (ON SC), 57 O.R. (3d) 528 (S.C.J.).
[24] The exceptions to this general rule are confined to narrow, limited circumstances where it can be demonstrated: that the lawyer actually knows that the non-client third party was relying on her skill; that the non-client third party must actually rely on the lawyer’s guidance and skill; and that the reliance must be objectively reasonable: see 9383859 Canada Ltd. v. Saeed, 2020 ONSC 4883, at para. 30, (“Saeed”) citing 2116656 Ontario Inc. v. Grant and LLF Lawyers LLP, 2019 ONSC 114, at para. 36.
[25] The allegations against the moving parties do not set out the necessary material facts that might support a conclusion that could meet this conjunctive test for the exception to the general rule and thereby establish a duty of care. The allegations levelled against the moving parties cannot sustain a cause of action because they simply pertain to acts and omissions taken by the moving parties acting in their capacity as solicitors for the estate trustees. The suggestion that, at all times, “the estate and beneficiaries relied on Linton Law to protect their interests, to their detriment” is bald and conclusory. The allegation that “Linton Law owed a duty of care to the Estate and Beneficiaries” is similarly bald and conclusory. The allegation that, “…throughout, Linton Law knew that the Estate and Beneficiaries relied upon them to exercise proper care and skill to act reasonably and competently and in their best interests to, inter alia, recover Estate Assets and maximize the value of the Estate…” is unsupported by any material facts that could support such a conclusion. The question of why solicitors for the estate trustees would owe a duty of care beyond the one owed to their clients is not addressed in the Plaintiff’s pleadings.
[26] Without material facts to support the narrow, limited circumstances in which a duty of care could exist in this case, there is no basis for a duty of care. Without a duty of care, there can be no negligence. There is no reasonable prospect for the success of this aspect of the claim.
[27] I find it plain and obvious that the claim for breach of duty of care and negligent discharge of that duty against the moving parties cannot succeed.
(ii) Fiduciary Duty
[28] There is no recognized fiduciary relationship between a lawyer for a trustee and a beneficiary to that trust. To prove a fiduciary relationship in these circumstances, the plaintiff would first need to allege: an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiaries; a defined class of persons vulnerable to the fiduciary’s control; and a legal or substantial practical interest of the person that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control: see RA1 v. JM, 2013 ONSC 5439, at para. 15.
[29] Like the negligence piece of the Plaintiff’s claim, there are insufficient material facts pleaded with respect to the above elements of the test. There is no mention of an undertaking given by the moving parties or the scope of that undertaking. Nothing is pleaded about the Plaintiff’s vulnerability. There are no material facts pleaded about what actions constituted the alleged breach of the alleged fiduciary duty owed specifically to the Plaintiff.
[30] Finally, there can be no cause of action against the moving parties as agents for the trustees. They cannot, at law, be independently liable for actions taken by their client, nor for the actions they took when following their client’s instructions: see Shillingford, at para. 35.
[31] The allegations in the claim all pertain to acts and omissions performed under a retainer between solicitor (the moving parties) and client (the estate trustees) or to the receipt and distribution of estate funds which could only have been done pursuant to the trustee’s instructions. There is no allegation that the moving parties acted or failed to act other than pursuant to the trustees’ instructions.
[32] There is no reasonable prospect for the success of this aspect of the claim.
[33] I find it plain and obvious that a claim for breach of fiduciary duty against the moving parties cannot succeed.
Abuse of Process
(i) No Cause of Action Against the Moving Parties
[34] In Saeed, at para. 46, my sister Brown J. wrote:
The doctrine of abuse of process is an intangible principle that is used to bar proceedings that are inconsistent with the objectives of public policy. It is invoked by the court to prevent a misuse of the court’s procedure, in a way that would be manifestly unfair to a party to the litigation or would bring the administration of justice into disrepute. A claim against lawyers brought by the opposing party is generally, absent the very limited circumstances discussed above, an abuse of process. [Citations omitted.]
[35] In my view, the allegations against the moving parties constitute an abuse of process and must be struck.
[36] It is well-established that it is an abuse of process to sue opposing counsel, under the guise of any cause of action, for what is essentially counsel’s conduct of the opposing case: see Saeed, at paras. 27, 46.
[37] That is precisely what is happening here. The Plaintiff has admitted under oath that she has never been a trustee of the estate, and she never retained the moving parties as lawyers for anything relating to the estate.
[38] The role of the moving parties in the estate and litigation landscape must have been abundantly clear to the Plaintiff as early as September 24, 2018, when David Linton suggested that she retain her own counsel. Indeed, ten days after receiving that confirmation from David Linton, she retained her own lawyer. That lawyer, Mr. Lepore, who is also her present counsel, communicated with the moving parties on the Plaintiff’s behalf and participated in a conference call with the moving parties and the beneficiaries less than two months later.
[39] For a time, up until March 2020, the Plaintiff was represented by a Mr. Peters. Following that, the Plaintiff consulted with other lawyers. When asked by the trustees to join a conference call to discuss the estate and the litigation in July 2022, the Plaintiff replied that Mr. Lepore would attend in her stead.
[40] The proceedings pre-dating the claim, as far back as the notice of objection and the application which followed, demonstrate that the Plaintiff was adverse in interest to the trustees from the outset. Not only did the Plaintiff retain her own counsel, but her allegations included that Mary Linton was not impartial, that the trustees were withholding information from her, and that the trustees were mismanaging the estate both financially and with respect to the litigation. All this time, the estate trustees were represented by the moving parties. Mr. Lepore continued to represent the Plaintiff while she opposed the appointment of Mary Linton as trustee. Once the objection to Mary Linton’s appointment was withdrawn, the estate trustees instructed the moving parties not to communicate directly with the Plaintiff.
[41] The history of this estate dispute establishes, beyond question, that the Plaintiff was always adverse in interest to Mary Linton and Joseph Viele, both before and after their appointment as trustees. More importantly for the purpose of this motion, there is not a shred of evidence, viewed objectively, that the moving parties were ever acting for any entity other than the estate trustees.
[42] All of this begs the question: how could the Plaintiff have honestly believed that the moving parties represented her? I find it difficult to believe that the Plaintiff, a lawyer at the bar since 1981, would not have understood that the moving parties were certainly not acting for her, but rather for the estate trustees. Frankly, even a reasonably informed and presumptively rational layperson would have reached that understanding early in the history of the estate litigation.
[43] Reading beyond and between the black and white of the claim, it is abundantly clear to the court that the Plaintiff has sought to cause mischief by naming the moving parties as Defendants to the claim. In so doing, she managed to have them removed as solicitors of record for the estate trustees. This is a misuse of the court’s procedure.
[44] I do not accept the submission of Plaintiff’s counsel who suggests that the plain and obvious test should rise to the criminal standard of “beyond a reasonable doubt.” Plain and obvious should have a more practical application. I acknowledge that exceptions exist to most rules, and that there have been limited circumstances in which a duty of care and/or a fiduciary duty has been owed by the lawyers for one party in a dispute to another party in the dispute. But these circumstances are the exception, and they are rare. There is nothing on the facts here that would give rise to either duty.
(ii) No Standing to Act on Behalf of the Estate
Frances Viele has no standing to bring a claim “on behalf of the Estate of Pasquale Viele”. The estate is represented by court-appointed estate trustees. Frances Viele is not among them. There is no testamentary document of the deceased which names her as estate trustee. Frances Viele is merely a beneficiary of the estate. She did not obtain an order under r. 9 of the Rules of Civil Procedure to act on behalf of the estate. Therefore, advancing a claim “on behalf of the Estate of Pasquale Viele” constitutes an abuse of process.
[45] Accordingly, the entirety of the allegations in the claim against the moving parties amount to an abuse of process and must be struck.
Limitation Period
[46] Many of the claims against the moving parties are statute-barred by the Limitations Act, 2002. The basic limitation period for claims of this nature is two years from the date the claim was discovered, pursuant to s. 4 of the Limitations Act, 2002.
[47] Section 5 of the Limitations Act, 2002 creates a presumption that a claim is discovered within two years of the damage occurring, unless there is evidence to the contrary.
[48] The deceased died on September 14, 2018. In his last will and testament, the deceased named Mary Linton and Joe Viele as his executors and trustees. The Plaintiff filed an objection on the estate in December 2018. That objection set out various allegations including assertions about the conduct of the Herbert litigation, concerns about certain transfers, the withholding of information from the Plaintiff, and the alleged mismanagement of estate funds. The Plaintiff was advised by the trustees of the repayment of certain mortgage funds to the estate on July 23, 2019. On October 10, 2019, the trustees reported to the Plaintiff that they had sold the deceased’s condominium and were disbursing the excess $500,000 from the sale proceeds to the beneficiaries.
[49] The Plaintiff withdrew her objection, and the parties consented to an order dismissing the proceeding with costs. Mary Linton was appointed as estate trustee and the administration of the estate proceeded.
[50] The pre-application history of this claim indicates that, as early as December 2018 and no later than October 2019, the Plaintiff was aware of these transactions and the activities concerning the estate.
[51] Therefore, the prescription period to bring claims of negligence, breach of duty of care, and breach of fiduciary duty against the moving parties for their acts and omissions on behalf of the estate trustees during the period between September 2018 and October 2019 (if that right ever existed) would have expired, at the very latest, in October 2021.
[52] Apart from the allegations pertaining to acts and omissions discovered after September 13, 2022 (which amount to an abuse of process in any event), the bulk of the Plaintiff’s claim is barred, having been brought after the expiration of the limitation period.
Public Policy: Whether there was a Solicitor-Client Relationship?
[53] Public policy must play a role here too. The spectre of having to answer to opposing litigants, even when they are represented, for the advice they give to clients, or worse, for the steps taken in representing their clients’ interests, would send a chill up the spine of even the most fearless lawyer. Pleadings like the present one, if permitted to survive r. 21 scrutiny, would serve to undermine and threaten centuries’ old tradition of both the adversarial process and the solicitor-client relationship. In my view, that is not a direction that the law should take in the reckless and unprincipled pursuit of novel causes of action.
Should Leave to Amend be Granted?
[54] An excellent discussion on why leave to amend a claim should be denied in similar circumstances was provided by my sister Brown J. in Saeed, at para. 54:
Where the claim has been struck as disclosing no reasonable cause of action or as frivolous, vexatious or an abuse of process, the plaintiff will be denied leave to amend that pleading where it contains a “radical defect” such that it could not be improved by an amendment: Roche v McLeod Law Firm, 2018 ONSC 2760. Further, leave to amend the claim should be denied where there is no reason to suppose that the party can improve their case by amendment, or if an entirely new cause of action would have to be set up by way of amendments that prejudiced the defendants: Dean v Immigration Consultants of Canada Regulatory Counsel, 202 ONSC 2486.
[55] The deficiencies in the Plaintiff’s claim are not technical; they constitute radical defects that cannot be improved by an amendment. There was no duty of care or fiduciary duty owing from the moving parties to the Plaintiff. No wordsmithing, turn of phrase or play on words can change that. The abuse of process here would only be compounded by permitting the Plaintiff to sift through the seven plus year history of this litigation in search of some snippet from an obscure email upon which to undergird some fanciful new allegation, only to return to court with a new pleading for the court to dissect. In any event, if that golden nugget has not been found yet, it is highly probable that the search for it will prove fruitless.
[56] I would deny leave to amend the impugned pleading.
Conclusion and Disposition
[57] For the foregoing reasons the motion is allowed and the entirety of the claim against the moving parties is struck without leave to amend.
[58] If the parties are unable to agree upon the form and content of any order or the issue of costs, they may make an appointment before me through the Trial Coordinator at Newmarket (Newmarket.SCJ.TC@ontario.ca) to address those issues.
J.R. MCCARTHY J.
Released: May 26, 2026