) ) DEVERETT LAW OFFICES ) ) Michael S. Deverett , for the Plaintiff (Appellant) ) ) Plaintiff (Appellant) ) ) – v. –, 2017 ONSC 6346

CITATION : Deverett Law Offices v. Pitney, 2017 ONSC 6346 DIVISIONAL COURT FILE NO.: 273/16 DATE: 20171023 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) DEVERETT LAW OFFICES ) ) Michael S. Deverett , for the Plaintiff (Appellant) ) ) Plaintiff (Appellant) ) ) – and – ) ) LINDA PITNEY ) Linda Pitney acting in person ) ) Defendant (Respondent) ) ) ) HEARD at Toronto: October 23, 2017 L.A.

PATTILLO J. ( Orally ) [ 1 ] This is an appeal by Deverett Law Offices (the “Appellant”) from the judgment of Deputy Judge Caplan dated May 13, 2016 dismissing its claim against the defendant, Linda Pitney. [ 2 ] The Appellant’s action stems from a dispute between the principal of the firm, Michael Deverett (“Deverett”) and a client, Nancy Edgar (“Edgar”). The Appellant represented Edgar in respect of a family law matter. In the fall of 2010, Edgar no longer wanted the Appellant to represent her. The Appellant forwarded a Notice of Intention to Act in Person (the “Notice”) to her, which was returned, signed.

Deverett then signed the Notice on behalf of the firm and the Appellant filed it with the court. [ 3 ] In September 2011, almost a year later, the Appellant received documents, purportedly from Edgar which included a report from Docu-Scan Disputed Document Services dated March 7, 2011 (the “Report”). The Report was signed by L. Powers. Its conclusion was that it was highly probable that the Notice was not executed by Edgar. [ 4 ] On the same day that it received the Report, the Appellant received a letter, again purportedly from Edgar accusing the Appellant of breach of trust and forgery.

In early October, Deverett received a letter from “Nancy” enclosing three bills totaling in excess of $100,000 and stated that in light of what she discovered that they needed to be attended to. [ 5 ] The Appellant hired an expert to review the Report. His conclusion was that Edgar signed the Notice. He also identified numerous concerns in respect of the Report. The Appellant subsequently discovered that L. Powers and Linda Pitney were one and the same person. The Appellant’s expert also could not substantiate the qualifications of L.

Powers as listed in the Report. [ 6 ] On December 29, 2011, the Appellant filed its claim. The claim is for negligent and fraudulent misrepresentation. At trial, in cross-examination, Deverett agreed that his claim was for defamation. The Appellant took the position at trial that the Report accused it and Deverett of forgery. [ 7 ] In dismissing the claim, the Trial Judge briefly reviewed the facts.

He concluded, after reviewing the letters from Edgar and the Report that the evidence was not sufficient to create a cause and effect between the opinion in the Report and the subsequent purported accusation of forgery and the attempt at blackmail by Edgar. He further concluded that the claim should have been brought against Edgar. The Trial Judge further noted that because the Appellant had not suffered any damages and there was not sufficient evidence that the Report was made maliciously that there was no basis for an award of punitive damages.

Standard of Review [ 8 ] On an appeal from a judge’s decision, the standard of review on a pure question of law is correctness. On findings of fact, it is palpable and overriding error. On questions of mixed law and fact, the standard of review is palpable and overriding error unless there

is an extricable legal principle in which case the standard of review is correctness: Housen v. Nikolaisen , 2002 SCC 33 , [2002] S.C.J. No. 31 (S.C.C.). [ 9 ] The Appellant raises the following issues on appeal:

(1) The Trial Judge failed to apply r. 18.02 of the Small Claims Court Rules dealing with experts.

(2) The Trial Judge failed to review the Defendant’s qualifications in respect of the Report.

(3) The Trial Judge improperly interfered with the cross-examination of the Defendant.

(4) The Trial Judge failed to draw a reasonable inference from the use of the name L. Powers in the Report. [ 10 ] In his decision, the Trial Judge referred to the fact that the Appellant’s expert did not appear in court and was not available to be cross-examined. He stated that he would therefore give less weight to the expert report. I agree with the Appellant that in the circumstances, that position is contrary to r. 18.02 of the Small Claims Court Rules . However, I do not consider that the Trial Judge’s error had any effect on his decision.

The trial judge did not refer to or comment on the Appellant’s expert report. Rather, he focused on the Appellant’s cause of action and concluded that the Appellant’s claim could not succeed. That conclusion had nothing to do with the Appellant’s expert opinion. [ 11 ] The Appellant’s claim was based on the fact that the Report was false and it was relied on by Edgar to accuse the Appellant of forgery and attempt to blackmail the Appellant. [ 12 ] The Trial Judge concluded that the letters from Edgar to the Appellant did not accuse the Appellant of forgery nor did they operate as an attempt to blackmail.

He therefore concluded that the evidence was not sufficient to create a causal connection between the Report and the subsequent purported accusations of forgery and blackmail. In my view, the Trial Judge was entitled to reach that conclusion based on the evidence before him. There is no palpable and overriding error. [ 13 ] Issue two concerns the qualifications or lack thereof of the Defendant. As noted, the Trial Judge’s reasons for dismissing the claim focused on the Defendant’s liability in respect of the Report given Edgar’s actions.

As such, the Defendant’s qualifications to author the opinion became irrelevant. The Trial Judge did not err in not dealing with the Defendant’s qualifications. [ 14 ] Issue three and four are related. During the Defendant’s cross, Deverett was asking the Defendant questions concerning why she signed the Report L. Powers when her name was Pitney. The Trial Judge asked, on more than one occasion, why the questions were relevant. Deverett did not answer. A trial judge is entitled to control the proceedings before him or her.

In my view, the Trial Judge did not enter the arena as submitted but rather was trying to keep the trial on track. I do not consider the Trial Judge committed any error in limiting the cross-examination to what was relevant before him. [ 15 ] The Appellant submits that the Trial Judge should have drawn the inference from the use of a false name that the Defendant was trying to hide something. Given the Trial Judge’s view of the claim, I do not consider that there was any need to draw such an inference.

It was simply not relevant to the claim before the court. [ 16 ] In its factum, the Appellant also takes issue with the Trial Judge’s award of $500 costs to the defendant. There is no issue that the trial judge had the jurisdiction to award costs to the Defendant who was unrepresented. The costs were modest and followed the event. [ 17 ] Costs are a discretionary matter. As such, an award of costs should be set aside on appeal only if the judge has made an error in principle or if the costs award is plainly wrong.

There was no error in principle nor can I say that the award of costs by the Trial Judge was plainly wrong. [ 18 ] For the above reasons, the appeal is therefore dismissed. Costs [ 19 ] Based on the oral submissions, costs of the appeal to the Defendant, fixed at $500. ___________________________ L.A. PATTILLO J. Date of Reasons for Judgment: October 23, 2017 Date of Release: October 25, 2017

CITATION : Deverett Law Offices v. Pitney, 2017 ONSC 6346 DIVISIONAL COURT FILE NO.: 273/16 DATE: 20171023 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: DEVERETT LAW OFFICES Plaintiff (Appellant) – and – LINDA PITNEY Defendant (Respondent) ORAL REASONS FOR JUDGMENT L.A. PATTILLO J. Date of Reasons for Judgment: October 23, 2017 Date of Release: October 25, 2017