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Wednesday: What’s Hot on CanLII

Each Wednesday we tell you which three English-language cases and which French-language case have been the most viewed* on CanLII and we give you a small sense of what the cases are about.

For this last week:

  1. Doerr v. Sterling Paralegal 2014 ONSC 2335

    [37] But how was Ms Doerr’s action against her paralegal advisor, (effectively for breach of contract and/or negligence in relation to execution of the paralegal’s duties under the retainer relationship), an abuse of process?

    [38] Counsel for the respondent/defendant suggested that Ms Doerr’s action was found to be an abuse of process because, on reviewing the parties’ intended evidence and considering submissions made at the settlement conference, the Deputy Judge came to the conclusion that Ms Doerr’s action would not succeed. Counsel suggested that the bringing of a claim apparently destined to fail on its merits was itself something that properly could be characterized as “an abuse of process”.

    [39] I find that suggestion problematic for a number of reasons.

    [40] First, it adopts an inordinately broad view of what constitutes an “abuse of process”, and corresponding lowers the “very high threshold”, (noted above), required for such a characterization. Based on my review of the authorities, “abuse of process” connotes something far more egregious than mere commencement of an action unlikely to succeed. There must be some true “abuse” of the right to pursue litigation, such as use of legal process primarily to accomplish a purpose for which it was not designed, or commencement of a further proceeding to reopen and re-litigate claims or issues that already have been finally decided by an earlier proceeding.

    [41] Second, if the Deputy Judge did indeed base his dismissal of the action on a summary review of the evidence and corresponding informal determination of the merits without a trial, that would suggest veiled use of a summary judgment jurisdiction and procedure which are not available in the Small Claims Court, according to the Court of Appeal’s ruling in Van de Vrande v. Butkowsky, supra.

    [42] Third, based on the minimal indications provided by the Deputy Judge, his “abuse of process” conclusion wasnot focused on any kind of ultimate merits review, but on some kind of perceived problem arising from the fact that there had been an earlier proceeding in the Small Claims Court; i.e., “this action is an abuse of process(#2162-08)”. [Emphasis added.] That numerical reference corresponded to the court file number of the previous Small Claims Court action Ms Doerr commenced against her former London lawyer; i.e., the earlier claim for solicitor negligence resolved by the settlement arrangements giving rise to the present litigation.

  2. Baines v. Linett & Timmis Barristers & Solicitors 2014 ONSC 2348

    [57] Thus, in Hryniak v. Mauldin, the Supreme Court of Canada held that on a motion for summary judgment under rule 20.04, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the new fact-finding powers.

    [58] Thus, the Supreme Court directs for the first step on a summary judgment motion, the approach that existed before Rule 20 was amended and in the case at bar, the court should first determine, based on the evidentiary record, whether there is a genuine issue requiring a trial about whether Ms. Baines can establish professional negligence causing her a loss. This analysis should be done without using the enhanced fact-finding powers available under rules 20.04(2.1) and (2.2) by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

    [59] In the case at bar, for the reasons set out below, based on the evidence presented and without the use of the powers provided by rules 20.04(2.1) and (2.2), I am satisfied that Ms. Baines has no tenable professional negligence claim against her former lawyers.

    [60] In the case at bar, it is not necessary to go on to the second step of the approach mandated by Hryniak v. Mauldin. Under the second step, if there appears to be a genuine issue requiring a trial, then the court should determine whether the need for a trial can be avoided by using the new powers under rules 20.04(2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

    [61] In the case at bar, applying the powers of rules 20.04(2.1) and (2.2) only confirms my conclusion that there is no genuine issue requiring a trial.

  3. Children’s Aid Society of London and Middlesex v. C.D.B. 2014 ONSC 1414

    [1] The father, C.D.B., seeks costs on a full indemnity basis for this extraordinarily lengthy trial and pre-trial process. In his submissions, C.D.B. claims the following:

    An order for costs on a full recovery basis, payable forthwith and jointly and severally payable by the applicant/respondent, L.D.B., the applicant, Children’s Aid Society of London and Middlesex and the Office of the Children’s Lawyer in respect to their agents, Barbara Hoover and Salim Khot, in the following amounts:

    Fees $2,642,406.50 (tab 2 of cost submissions brief)

    H.S.T. @ 13% $343,512.85 (tab 3 of cost submissions brief)

    Recoverable Disbursements $141,469.97

    Including H.S.T.

    Total Full Recovery Costs $3,127,389.32
    . . .

    [87] The Society shall pay 70 percent of the above noted costs: $1,410,449.50.

    [88] L.D.B. shall pay 30 percent of the above noted costs: $604,478.36.

The most-consulted French-language decision was Pasquin c. R. 2014 QCCA 786

[6] L’appelant invoque deux arguments : 1) la preuve d’écoute électronique était irrecevable et devait être exclue et 2) le jugement de culpabilité est déraisonnable en ce que le juge de première instance n’a pas tenu compte d’éléments de preuve qui lui étaient favorables et en ce que la preuve circonstancielle pouvait aussi mener à un verdict d’acquittement. Pour les raisons qui suivent, je suis d’avis que l’appelant a tort et que le pourvoi doit être rejeté, sauf en ce qui a trait au chef 4 (possession de drogue en vue d’en faire trafic), comme le concède d’ailleurs l’intimée.

* As of January 2014 we measure the total amount of time spent on the pages rather than simply the number of hits; as well, a case once mentioned won’t appear again for three months.

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