2017 ONSC 3993, 2017 ONSC 3993

CITATION : King v. O’Toole 2017 ONSC 3993 DIVISIONAL COURT FILE NO.: 181/17 DATE: 20170628 SUPERIOR COURT OF JUSTICE – ONTARIO RE: GREGORY P. KING v. JOHN P. O’TOOLE and GOWLING LAFLEUR HENDERSON LLP BEFORE: NORDHEIMER J. COUNSEL: P. Wardle & J. Wilkes , for the moving parties/defendants G. King in person/plaintiff HEARD at Toronto: written submissions E N D O R S E M E N T [ 1 ] The defendants seek leave to appeal from the decision of Corbett J. dated March 27, 2017 in which the motion judge dismissed, in part, a motion for

summary judgment brought by the defendants. [1] [ 2 ] In order to obtain leave to appeal, a moving party must satisfy one of the two tests set out in r. 62.02(4) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194, that reads: Leave to appeal shall not be granted unless, (

a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or (

b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted. The defendants rely on both tests on their motion. [ 3 ] The claim arises out of an action commenced in Italy against the plaintiff in January 1998. The plaintiff did not defend the Italian proceeding. Eventually, a judgment was obtained against the plaintiff in the Italian proceeding. It was then sought to enforce the Italian judgment in Ontario.

The Italian judgment was successfully enforced against the plaintiff by a decision of this court rendered on November 30, 2010. [ 4 ] In this proceeding, the plaintiff asserts that the enforcement of the Italian judgment against him arose from the fact that he was given negligent advice by the defendant O’Toole who was a partner at the defendant Gowling Lafleur Henderson. [ 5 ] The plaintiff advanced a number of different claims against the defendants. Certain of those claims were dismissed by the motion judge based on the expiration of the two year limitation period. However, one claim was not.

It is the refusal to dismiss this latter claim that is the subject of this motion for leave to appeal. [ 6 ] The essence of the complaint that the defendants have with the motion judge’s refusal to grant

summary judgment on this

remaining claim is that the motion judge failed to apply the well-established “but for” causation test for claims based in solicitor’snegligence. On that point, the defendants say that the motion judge’s decision conflicts with other authorities, namely, Clements v.Clements, 2012 SCC 32; Jarbeau v. McLean, 2017 ONCA 115; and Folland v. Reardon (2005), (ON CA), 74 O.R.(3d) 688 (CA). [7] I do not agree with the defendants’ central contention. The motion judge applied the recognized legal test for determiningcausation.

However, the motion judge found that there was a factual dispute among the parties and this directly affected the time whenthe plaintiff suffered the loss. If the plaintiff’s view of the factual dispute succeeds, then the motion judge found that the loss did notarise until the Italian judgment was enforced in 2010. In that event, this proceeding was started within the applicable two year limitationperiod. In my view, this is clear from the motion judge’s reasons at paras. 61-63 where he said: 61 King’s second head of loss is King's liability to Sincies’ trustee.

That loss did not arise before the judgment ofWhalen J. on November 30, 2010. Up to this time, King had suffered no damages as a result of the alleged advice not to attorn, and thushe had no claim on which to sue. 62 I conclude that King has an arguable case that he did not suffer loss caused by the impugned advice not to attorn tothe courts of Italy until the judgment of Whalen J.

King’s claim against O’Toole in respect to this alleged advice was brought within twoyears of the judgment of Whalen J., and thus it is arguable that this claim is not brought too late. 63 To be clear, I do not dismiss O’Toole’s limitations defence of this claim and instead leave the issue for trial. That isbecause, for the purposes of this motion, I have assumed that King could theoretically prove his version of events.

If, for example,hypothetically, any advice on attornment was premised on a report being made to LawPro and LawPro agreeing with the tactical decisionnot to attorn to the courts of Italy, the chain of causation between the advice not to attorn and King’s eventual losses could be broken.

My conclusion is no more than a finding that it is not “plain and obvious” that the limitations defence raises no triable issue and thussummary judgment should not be granted dismissing this aspect of King's claim. [8] The defendants have not demonstrated that there is any conflict in principle between the motion judge’s decision here andthat reached in other cases with respect to the appropriate legal principles to be applied. Rather, there is a factual dispute that needs to beaddressed and the motion judge properly concluded that the resolution of that factual dispute should be determined at a trial.

It is for thissame reason that I do not have good reason to doubt the correctness of the motion judge’s decision. [9] In any event, I do not find that an appeal is desirable or that the issue raised is of such importance that leave to appeal oughtto be granted under the second branch of either test. The defendants refer to the fact that “[a]ctions for negligence are ubiquitous inCanada”. Accepting that to be true, that fact seems to me to demonstrate why this matter does not satisfy the second requirement ofimportance beyond this particular proceeding.

The claim here is simply one more in a long line of negligence cases that this courtdetermines on virtually a daily basis. A trial judge will determine this matter in the fullness of time based on the facts as s/he findsthem. There is no legal issue of superordinate importance that requires an answer from an appellate court before that happens. [10] Consequently, the motion for leave to appeal is dismissed. [11] The plaintiff is a lawyer but he is unrepresented. Nonetheless, as an unrepresented party he is still entitled to costs: Fong v.Chan (1999), (ON CA), 46 O.R. (3d) 330 (C.A.).

However, as the Court of Appeal observed in Fong, at para. 26: “…self-represented litigants, be they legally trained or not, are not entitled to costs calculated on the same basis as those of the litigant whoretains counsel”. [12] The defendants will pay to the plaintiff his costs of the motion, fixed in the amount of $3,000, inclusive of disbursements andHST, within thirty days. NORDHEIMER J. DATE: June 28, 2017