D.W. v. White, (2004) 189 O.A.C. 256 (CA)

• Judge: Catzman, Moldaver and Goudge, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 23, 2004
• Jurisdiction: Ontario
• Citations: (2004), 189 O.A.C. 256 (CA)

D.W. v. White (2004), 189 O.A.C. 256 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. AU.025

D.W. (plaintiff/appellant) v. Debbie White, Lynne Kantautas, The Durham Region Police Services Board, The Children's Aid Society of Durham Region, Maria D'Assisi, I.J., Lisa Cameron, Attorney General for Ontario (defendants/respondents)

(C36974)

Indexed As: D.W. v. White et al.

Ontario Court of Appeal

Catzman, Moldaver and Goudge, JJ.A.

August 23, 2004.

Summary:

Following investigations by a Children's Aid Society and the police, D.W. was charged with sexual offences against his daughter. The charges were subsequently stayed. D.W. sued the daughter's grandmother (who had custody), the Children's Aid Society and its employees, the Police Services Board and the investigating officers. D.W. alleged, inter alia, false imprisonment, malicious prosecution, negligence and defamation and sought $15,500,000 in damages. The trial judge dismissed all of D.W.'s claims against all of the defendants and assessed costs against him for over $235,000. D.W. appealed the dismissal of his action, alleging, inter alia, that his trial counsel had been incompetent.

The Ontario Court of Appeal dismissed the appeal.

Editor's note: certain names in the following case have been initialized or the case other-wise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Practice - Topic 8865

Appeals - Quashing or dismissal of appeals - Abuse of process - D.W. sued the defendants for, inter alia, false imprisonment, malicious prosecution, negligence and defamation - The trial judge dismissed the action - D.W. appealed and sought a new trial - His principal ground of appeal was that his trial counsel had been incompetent - D.W. had also sued his trial counsel for negligence, but settled that action - The Ontario Court of Appeal dismissed the appeal - There were other remedies that a losing litigant could invoke to recover a loss claimed at trial if ineffective assistance of counsel could be established - Foremost among them was bringing an action against counsel, which D.W. did - D.W. ought not to be allowed to force the defendants, on the very same basis of his suit against his counsel, to undergo the trouble, expense and hazards of a new trial through absolutely no fault of their own - The court stated that this ground of appeal foundered on the application of the doctrine of abuse of process - See paragraphs 42 to 56.

Practice - Topic 9230

Appeals - New trials - Lack of or incompetence of counsel at trial - The Ontario Court of Appeal stated that it was not prepared to "close the door to the viability of ineffective assistance of counsel as a ground for a new trial in a civil action. But ... would limit the availability of that ground of appeal to the rarest of cases, such as (and these are by way of example only) cases involving some overriding public interest or cases engaging the interests of vulnerable persons like children or persons under mental disability or cases in which one party to the litigation is somehow complicit in the failure of counsel opposite to attain a reasonable standard of representation." - See paragraph 55.

Practice - Topic 9230

Appeals - New trials - Lack of or incompetence of counsel at trial - [See Practice - Topic 8865 ].

Cases Noticed:

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 42, footnote 1].

R. v. White (H.S.) and Sennets (S.) (1997), 99 O.A.C. 1; 114 C.C.C.(3d) 225 (C.A.), refd to. [para. 42, footnote 1].

R. v. Porter (D.R.), [1998] O.A.C. Uned. 32; 37 M.V.R.(3d) 164 (C.A.), refd to. [para. 42, footnote 1].

R. v. Falconer (R.J.), [1999] O.A.C. Uned. 41 (C.A.), refd to. [para. 42, footnote 1].

R. v. C.T.L. (1999), 124 O.A.C. 45; 138 C.C.C.(3d) 356 (C.A.), refd to. [para. 42, footnote 1].

R. v. Logan (S.H.) (1999), 125 O.A.C. 152; 139 C.C.C.(3d) 57 (C.A.), refd to. [para. 42, footnote 1].

R. v. Duncan (R.) (1999), 124 O.A.C. 296 (C.A.), refd to. [para. 42, footnote 1].

R. v. Wells (M.E.G.) (2001), 139 O.A.C. 356 (C.A.), refd to. [para. 42, footnote 1].

R. v. T.P. (2002), 160 O.A.C. 118; 165 C.C.C.(3d) 281 (C.A.), refd to. [para. 42, footnote 1].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 143 C.C.C.(3d) 289, refd to. [para. 43, footnote 2].

Halton Community Credit Union Ltd. v. I.C.L. Computers Ltd. (1985), 8 O.A.C. 369; 1 C.P.C.(2d) 24 (C.A.), refd to. [para. 43, footnote 3].

Adams v. Fuda, [1987] O.J. No. 1311 (H.C.), refd to. [para. 43, footnote 3].

Guerriero v. Paul (1990), 73 O.R.(2d) 25 (H.C.), refd to. [para. 43, footnote 4].

Ben-Zvi v. Majestic Marble Import Ltd., [2003] O.T.C. Uned. 751; 42 C.P.C.(5th) 242 (Sup. Ct.), refd to. [para. 43, footnote 4].

Dominion Readers' Service Ltd. v. Brant et al. (1982), 41 O.R.(2d) 1 (C.A.), folld. [para. 44].

Toronto (City) et al. v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 53].

R. v. Downey (P.), [2002] O.T.C. 279 (Sup. Ct.), refd to. [para. 57].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 64].

Counsel:

Lorne M. Honickman, for the appellant;

David R. Neill, for the respondents, White, Kantautas and the Durham Region Police Services Board;

Alexander D. Pettingill, for the respondents, D'Assisi and the Children's Aid Society of Durham Region;

Joanne Ferguson, for the respondent, I.J.;

William C. McDowell and Christine Lonsdale, for the respondent, Richard H. Parker.

This appeal was heard on May 13 and 14, 2004, by Catzman, Moldaver and Goudge, JJ.A., of the Ontario Court of Appeal. Catzman, J.A., delivered the following decision for the court on August 23, 2004.