Author Archives: Admin4

Personal injury firm subject to several adverse decisions by Ontario judges

Last month, in the case of Hernandez v. Lariviere, Ontario Superior Court Justice Thomas Lofchik refused to reinstate the claim of a Ferro & Co. client after the registrar issued an order dismissing the action for delay. Lofchik wrote that the firm’s principal, Lou Ferro, had displayed inaction that could “fairly be interpreted as both intentional and deliberate.”

Citing three previous decisions on motions to set aside dismissals for delay involving Ferro’s firm, Lofchik said in his Dec. 15 decision that it was “far past time for Mr. Ferro to take responsibility for his actions and for the court to respond to a clear pattern of inattentiveness and neglect.”

http://www.lawtimesnews.com/201501124402/headline-news/critical-rulings-show-risks-of-going-paperless-lawyer-says

http://canlii.ca/t/gftlz

[16]           That is quite separate from whether Ferro & Company did anything wrong in advising the plaintiff to institute and pursue unfounded allegations of fraud.

[17]           This is not the first time that this firm has participated in cases involving such unfounded allegations: see, for example, the Sagan case, Steele v. Intact Insurance Company, 2014 ONSC 6999 (CanLII), and, arguably, Blake v. Dominion of Canada General Insurance Co., 2013 ONSC 6069 (CanLII).

[18]           Mr Oostdyk argues that the court should not punish a lawyer for good legal thinking. I think more to the point is whether it should punish bad legal thinking. Whatever I think of false accusations of fraud, I do not think that the lawyer’s conduct meets the threshold set in Young v. Young, 1993 CanLII 34 (SCC), [1993] 4 SCR 3. I think that Rule 57.07 and the common law power discussed in Young v. Younghave more in mind abuse of process, delay and default by lawyers and conduct of that nature. The defendant cites Standard Life Assurance Co. v. Elliott, 2007 CanLII 18579 (ON SC), [2007] O.J. No. 2031, in which Molloy J. imposed costs on the lawyer. In that case the lawyer counterclaimed against an insurance company and added individual employees as defendants when the principal had already admitted that it was liable for their acts. The employees were added, therefore, for no other purpose than to vex them and their employer. That was an abuse of process. In the case at bar, the purpose of the action appears to have been to recover money for the plaintiff from the insurer with whom she had contracted. In the circumstances, a cost order against the unsuccessful party, augmented because of the unfounded allegation of fraud, is sufficient. I propose to follow the usual rule and impose costs against the party, not the lawyer.

[21]           I order the plaintiff to pay the defendant’s costs of the action on a substantial indemnity basis, which I fix at $20,000 all inclusive.

http://canlii.ca/t/gfxgg

[11]           Counsel is seeking costs of one-third of the damages awarded in the AB claim and the tort claim pursuant to the contingency fee agreements signed by Claude Pothier on August 1, 2006, and January 30, 2014. This latter agreement expands the original agreement by explaining that the fees on the tort action and the AB claim would be subject to the one-third amount. This results in fees of $466,000, HST of $37,280 and disbursements of $84,510 for a total of $587,790.

 [23]           I have no hesitation in approving the awards made, both on the tort action and the AB claim. What has concerned me, however, is the amount of fees being suggested by the law firm.

[24]           I appreciate that this settlement came about as a result of a global resolution of the tort action and the AB claim. However, this does not mean that I am obliged to award fees on the global resolution.

[34]            Considering that these dockets were reconstructed and not made contemporaneously at the time the work was done, little weight can be placed on the estimate of the time involved.

[52]           The sum of $280,500 is sought for legal fees in connection with the AB claim pursuant to the contingency fee agreement. Having considered all of the evidence and the legal principles, I conclude that there should be a reduction on the fees proposed on the AB claim. In my view, counsel has not succeeded in proving that the contingency fee agreement was fair and reasonable under the circumstances. Accordingly, fees for the AB claim will be fixed at $170,000, inclusive of HST, and fees for the tort action will be fixed at $183,333, inclusive of HST, for a total of $353,333.

[53]           Disbursements are fixed at $84,510, inclusive of HST.

http://canlii.ca/t/gfn53

EXPLANATION OF THE LITIGATION DELAY

[43]      I find that the Plaintiff has failed to establish an adequate or reasonable explanation for the litigation delay.  This action arises out of an incident that occurred on July 12, 2005 and the Statement of Claim within action was issued on May 3, 2007.  This is the second Statement of Claim issued by the Plaintiff.  There was nothing preventing the claim from being brought forward and dealt with expeditiously.  However, the examination for discovery of the Plaintiff was not completed until January 4, 2010 after four previous failed attempts to complete his discovery.  Despite several written requests, the Plaintiff did not provide an affidavit of documents or any productions in support of his claim until December 2, 2009, shortly before the fifth scheduled discovery date.  The Plaintiff failed to comply with undertakings given at his examination for discovery, necessitating a motion and cancellation of an independent medical assessment scheduled by counsel for the Defendant Western.  The Plaintiff then failed to comply with the terms of the order of Justice Milanetti dated February 3, 2011. 

[44]      It is the Plaintiff who bears the primary responsibility under the Rules of Civil Procedure for the progress of the action.  In the within case Western was the party who acted promptly making repeated efforts (without response) to obtain damages documentation, schedule and complete the Plaintiff’s examination for discovery and move to compel responses to the Plaintiff’s own undertakings.  The Plaintiff essentially did not initiate any procedural steps in the action subsequent to their writing to solicitors for Denis Lariviere on July 7, 2008 in order to reschedule the examination for discovery of Denis Lariviere to January 5, 2009 and attendance at that discovery.

[45]      There is no direct evidence from the Plaintiff Michael Hernandez on this motion to explain the litigation delay or setting out that he had an intention to pursue this action.  Mr. Hernandez did not cooperate in the prosecution of his action by failing to attend for discovery on multiple occasions.  Counsel for Western submits that it can be inferred from this that Mr. Hernandez sanctioned the delay in the litigation.  I find that the inference is a reasonable one but in any event there is no evidence before me that Mr. Hernandez took any steps to see that his counsel was proceeding with his claim.

http://canlii.ca/t/gf9p4

3.      In late 2013 the plaintiff’s 2005 settlement of his accident benefits claim was set aside. That claim is now the subject of an arbitration proceeding before the Financial Services Commission of Ontario (“FSCO”). It is unclear when that hearing will take place but both sides agree that the FSCO disposition is many months or perhaps years away. Both sides also agree that it makes practical sense for the trial of this action to follow the outcome of the FSCO arbitration process.

10.  As well, there will be no risk of inconsistent findings or of double recovery under the plaintiff’s proposal because the trial will not take place until after the outcome of the FSCO proceeding is known.

http://canlii.ca/t/fv116

5.      For the purposes of this motion, the parties value the plaintiff’s claim, if successful on the issue of liability, as being somewhere between $240,000.00 and $400,000.00.  This is not a large claim relative to many other Superior Court actions, but it is, for example, a claim for an amount well above the threshold for simplified procedure (by a factor of least 2.5). In my view, this is a significant amount of money, especially to an individual plaintiff such as Mr. Edwards, as opposed to a similar claim by a corporate or institutional plaintiff. I am also of the view that this action is somewhat more complex than the average Superior Court action. The issues of fact and law that must be determined cover both the underlying accident benefits action and the negligence claim against Mr. McCarthy. Both liability and damages are in issue. There are voluminous productions from both sides, including many pages of medical records. The action is further complicated by the fact of a pre-existing condition from which the plaintiff was suffering at the time of the motor vehicle accident. In my view, all of these factors lead to the conclusion that this is an appropriate case for additional oral discovery.

http://canlii.ca/t/gf62z

[32]           Ms. Hodge submits that a substantial amount of the Respondents’ time and effort was directed to attacking her credibility and Class Counsel’s alleged failure to take other courses of action. 

[33]           Ms. Hodge submits that it is beyond the realm of reasonableness to expect that Respondents’ counsel would spend 210 hours on preparation and attendance for the quashing summonses motion, which lasted approximately one hour and was settled.  She suggests that a reasonable expectation would be approximately $5,000 to $8,000 in legal fees and not the $84,829.50 claimed.

http://canlii.ca/t/gf4ns

[8]         In March 2009 the Chrisjohn family fired Nobili. Several months later they retained the Defendant Murray, a member of the Lerners firm. On August 11, 2010 Murray issued a solicitor’s negligence claim against Nobili on Chrisjohn’s behalf.

TORONTO – A Kingston lawyer became the first in Ontario to have his licence revoked for sexually harassing clients, the Toronto Sun has learned.

Farant, who specializes in personal injury and disability cases, exploited an illiterate, vulnerable male client nine years ago and took $56,000 from the man, who had suffered brain damage from a car accident.

http://www.torontosun.com/2014/10/29/lawyer-first-in-ontario-to-be-disbarred-over-sexual-harassment

https://www5.fsco.gov.on.ca/AD/4224

I find that, had State Farm put its mind to the June 7, 2013 offer to settle, all of the expenses related to preparation, preparation of a factum regarding admissibility of documents and expenses incurred thereafter could have been avoided.

State Farm is entitled to its litigation strategy.  With it come the associated risks when a strategy stops working. In this case, I find that State Farm’s aggressive strategy backfired, costing both it and Ms. Kimmerly additional preparation time.

For this reason, I find that the expenses between the June 7 offer date and the hearing start date, should be awarded in full. 

Ms. Kimmerly’s submission that State Farm gave no indication before the hearing that it was open to settlement and did not respond to the June 7 offer was undisputed and the Minutes of Settlement executed by the parties on June 17, 2013 mirror the June 7 offer.  I find that all the work that followed the June 7 offer was for naught, and entirely preventable had State Farm given meaningful consideration to the offer closer to the time it was made.