G.F. v. Reardon, (2005) 194 O.A.C. 201 (CA)

• Judge: Catzman, Doherty and Armstrong, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 30, 2004
• Jurisdiction: Ontario
• Citations: (2005), 194 O.A.C. 201 (CA);2005 CanLII 1403 (NS CA);2005 CanLII 1403 (ON CA);74 OR (3d) 688;249 DLR (4th) 167;28 CCLT (3d) 1;[2005] OJ No 216 (QL);136 ACWS (3d) 638;194 OAC 201

G.F. v. Reardon (2005), 194 O.A.C. 201 (CA)

MLB headnote and full text

Temp. Cite: [2005] O.A.C. TBEd. JA.097

G.F., S.F. and G.F. (appellants) v. Dennis A. Reardon (respondent)

(C41404)

Indexed As: G.F. et al. v. Reardon

Ontario Court of Appeal

Catzman, Doherty and Armstrong, JJ.A.

January 26, 2005.

Summary:

G.F. was convicted of sexual assault and sentenced to five years' imprisonment. He served almost three years before being released on bail pending appeal.

The Ontario Court of Appeal, in a decision reported at 116 O.A.C. 345, admitted "fresh" evidence, quashed the conviction and directed a new trial. The Crown decided not to retry G.F. G.F. sued Reardon, the lawyer who represented him at trial, alleging that Reardon's negligence resulted in his wrongful conviction and lengthy incarceration. Reardon moved for summary judgment, alleging that there were no genuine issues for trial and, alternatively, that G.F.'s claims should be struck as an abuse of process.

The Ontario Superior Court, in a decision reported at [2004] O.T.C. 57, rejected the abuse of process argument, but dismissed G.F.'s action on the basis that there were no genuine issues for trial. G.F. appealed. Reardon cross-appealed.

The Ontario Court of Appeal allowed the appeal and dismissed the cross-appeal.

Barristers and Solicitors - Topic 2501

Negligence - General principles - Standard of care - The Ontario Court of Appeal rejected an "egregious error" standard for lawyers conducting litigation - There was no reason to depart from a reasonableness standard - The court stated that "In accepting the reasonably competent lawyer standard, I do not detract from the often repeated caution against characterizing errors in judgment as negligence. Lawyers make many decisions in the course of a lawsuit. Those decisions require the exercise of judgment. Inevitably, some of those decisions, when viewed with the benefit of hindsight, will be seen as unwise. The reasonable lawyer standard does not call for an assessment of the sagacity of the decision made by the lawyer. The standard demands that the lawyer bring to the exercise of his or her judgment the effort, knowledge and insight of the reasonably competent lawyer. If the lawyer has met that standard, his or her duty to the client is discharged, even if the decision proves to be disastrous." - See paragraphs 35 to 45.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - G.F. was convicted of sexual assault and sentenced to five years' imprisonment - He served almost three years before being released on bail pending appeal - On appeal, the court admitted "fresh" evidence, quashed the conviction and directed a new trial - The Crown decided not to retry G.F. - G.F. sued Reardon, the lawyer who represented him at trial, alleging that Reardon's negligence resulted in his wrongful conviction and lengthy incarceration - Reardon alleged that the claims should be struck as an abuse of process - The Ontario Court of Appeal rejected the argument - G.F.'s lawsuit was not an attempt to relitigate matters decided in the criminal proceedings - Further, G.F. was not obligated to raise Reardon's competence on his conviction appeal if he wished to eventually sue Reardon in negligence - See paragraphs 96 to 105.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - G.F. was convicted of sexual assault and sentenced to five years' imprisonment - He served almost three years before he was released on bail pending appeal - On appeal, the court admitted "fresh" evidence, quashed the conviction and directed a new trial - The Crown decided not to retry G.F. - G.F. sued Reardon, the lawyer who represented him at trial, alleging that Reardon's negligence resulted in his wrongful conviction and lengthy incarceration - Reardon moved for summary judgment - A motion judge dismissed the action, holding that there were no genuine issues for trial - The Ontario Court of Appeal overturned the decision - There was some evidence that Reardon did not meet the appropriate standard of care in two respects - It was not for the motion judge to decide the ultimate question of whether Reardon met this standard, even if the two errors were established - The motion judge's implied qualitative analysis of these alleged shortcomings, while consistent with a trial judge's role, was inconsistent with the limited function assigned to him on a motion for summary judgment - See paragraphs 46 to 56.

Torts - Topic 59

Negligence - Causation - Loss of chance - G.F. was convicted of sexual assault and sentenced to five years' imprisonment - He served almost three years before being released on bail pending appeal - On appeal, the court admitted "fresh" evidence, quashed the conviction and directed a new trial - The Crown decided not to retry G.F. - G.F. sued Reardon, the lawyer who represented him at trial, alleging that Reardon's negligence resulted in his wrongful conviction and lengthy incarceration - The Ontario Court of Appeal discussed the "loss of chance" test for causation in negligence actions against lawyers - The court held that a lost chance analysis was not appropriate here because a mere chance of acquittal had no value, the question was not purely or mostly one of chance, and if G.F. could not prove on a balance of probabilities that he would likely have been acquitted, public policy would not countenance a damage award to someone who probably committed the crime with which he was charged - See paragraphs 57 to 93.

Cases Noticed:

Ungerman (Irving) Ltd. et al. v. Galanis and Haut (1991), 50 O.A.C. 176; 4 O.R.(3d) 545 (C.A.), refd to. [para. 32].

Rozin v. Ilitchev et al. (2003), 175 O.A.C. 4; 66 O.R.(3d) 410 (C.A.), refd to. [para. 32].

Dawson et al. v. Rexcraft Storage and Warehouse Inc. et al. (1998), 111 O.A.C. 201; 164 D.L.R.(4th) 257 (C.A.), refd to. [para. 33].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 35].

Bertucci v. Marchioni, [2001] O.T.C. Uned. 383 (Sup. Ct.), affd. [2002] O.A.C. Uned. 551 (C.A.), refd to. [para. 35].

Blackburn v. Lapkin (1996), 28 O.R.(3d) 292 (Gen. Div.), refd to. [para. 37].

Farkas v. Rashwan, [2002] O.J. No. 42 (C.A.), refd to. [para. 39].

Hagblom v. Henderson et al. (2003), 232 Sask.R. 81; 294 W.A.C. 81 (C.A.), leave to appeal refused (2004), 327 N.R. 397 (S.C.C.), refd to. [para. 40].

Major v. Buchanan (1975), 9 O.R.(2d) 491 (H.C.), refd to. [para. 41].

Kitchen v. Royal Air Forces Association et al., [1958] 2 All E.R. 241 (C.A.), refd to. [para. 43].

Roncato et al. v. Caverly (1991), 53 O.A.C. 367; 5 O.R.(3d) 714 (C.A.), refd to. [para. 59].

Laferrière v. Lawson, [1991] 1 S.C.R. 541; 123 N.R. 325; 38 Q.A.C. 161, refd to. [para. 60].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 60].

Arndt et al. v. Smith, [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185, refd to. [para. 60].

St-Jean v. Mercier, [2002] 1 S.C.R. 491; 282 N.R. 310, refd to. [para. 60].

Cottrelle et al. v. Gerrard et al. (2003), 178 O.A.C. 142; 67 O.R.(3d) 737 (C.A.), leave to appeal refused (2004), 70 O.R.(3d) xvii (S.C.C.), refd to. [para. 60].

Polischuk v. Hagarty (1984), 49 O.R.(2d) 71 (C.A.), reving. (1983), 42 O.R.(2d) 417 (H.C.), refd to. [para. 61].

Haag v. Marshall (1989), 39 B.C.L.R.(2d) 205 (C.A.), refd to. [para. 61].

Sykes v. Midland Bank Executor and Trustee Co., [1971] 1 Q.B. 113 (C.A.), refd to. [para. 61].

Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241; 9 O.A.C. 1, refd to. [para. 72, footnote 5].

Mallet v. McMonagle, [1970] A.C. 166 (H.L.), refd to. [para. 72, footnote 5].

Giroday v. Brough - see de la Giroday et al. v. Brough.

de la Giroday et al. v. Brough (1997), 92 B.C.A.C. 81; 150 W.A.C. 81; 33 B.C.L.R.(3d) 171 (C.A.), leave to appeal refused (1997), 225 N.R. 237; 102 B.C.A.C. 238; 166 W.A.C. 238 (S.C.C.), refd to. [para. 72].

Hotson v. East Berkshire Health Authority, [1987] 1 A.C. 750; 80 N.R. 95 (H.L.), refd to. [para. 72].

Chaplin v. Hicks, [1911] 2 K.B. 786, refd to. [para. 73].

Spring v. Guardian Assurance plc et al., [1995] 2 A.C. 296; 174 N.R. 164 (H.L.), refd to. [para. 73].

Eastwalsh Homes Ltd. v. Anatal Developments Ltd. (1993), 62 O.A.C. 20; 12 O.R.(3d) 675 (C.A.), leave to appeal refused (1993), 162 N.R. 399; 67 O.A.C. 79; 15 O.R.(3d) xvi (S.C.C.), refd to. [para. 73].

Multi-Malls Inc. v. Tex-Mall Properties Ltd. (1980), 28 O.R.(2d) 6 (H.C.), affd. (1981), 37 O.R.(2d) 133 (C.A.), leave to appeal refused [1982] 1 S.C.R. xiii; 41 N.R. 360, refd to. [para. 73].

Sellars v. Adelaide Petroleum N.L. (1992), 179 C.L.R. 332 (H.C.), refd to. [para. 73].

Cook v. Swifen, [1967] 1 All E.R. 299, refd to. [para. 75].

Graybriar Industries Ltd. v. Davis & Co. and Schwegler (1990), 46 B.C.L.R.(2d) 164 (S.C.), affd. (1992), 19 B.C.A.C. 77; 34 W.A.C. 77; 72 B.C.L.R.(2d) 190 (C.A.), refd to. [para. 75].

Wallace v. Litwiniuk et al. (2001), 281 A.R. 115; 248 W.A.C. 115 (C.A.), refd to. [para. 75].

Prior v. McNab (1976), 16 O.R.(2d) 380 (H.C.), refd to. [para. 75].

Gouzenko v. Harris (1977), 13 O.R.(2d) 730 (H.C.), refd to. [para. 75].

BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12; 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241, refd to. [para. 76].

Johnson v. Perez (1988), 166 C.L.R. 351 (Aus. H.C.), refd to. [para. 80, footnote 6].

Allied Maples Group v. Simmons & Simmons, [1995] 1 W.L.R. 1602 (C.A.), refd to. [para. 81].

Acton v. Pearce (Graham) and Co., [1997] 3 All E.R. 909 (Ch. D.), disagreed with [para. 83].

Saif Ali v. Mitchell (Sydney) & Co., [1978] 3 All E.R. 1033 (H.L.), refd to. [para. 85].

Boudreau v. Benaiah et al. (2000), 129 O.A.C. 40; 46 O.R.(3d) 737 (C.A.), refd to. [para. 87].

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, refd to. [para. 97].

Fischer v. Halyk (2003), 232 Sask.R. 297; 294 W.A.C. 297 (C.A.), leave to appeal refused [2003] S.C.C.A. No. 421, dist. [para. 98].

Wernikowski v. Kirkland, Murphy & Ain (1999), 128 O.A.C. 33; 50 O.R.(3d) 124 (C.A.), leave to appeal refused (2000), 264 N.R. 196; 145 O.A.C. 398 (S.C.C.), dist. [para. 98].

Authors and Works Noticed:

Black, Vaughan, Not a Chance: Comments on Waddams, The Valuation of Chances (1998), 30 Can. Bus. L.J. 96, generally [para. 72].

Campion, J.A., and Dimmer, D.W., Professional Liability in Canada (1994), p. 7-29 [para. 36].

Cooper-Stevenson, Kenneth, and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), pp. 751, 752 [para. 60]; 754 to 761 [para. 72, footnote 5]; 767, 768 [para. 69].

Fleming, John G., Probabilistic Causation in Tort Law (1989), 68 C.B.R. 661, p. 673 [para. 69].

Fridman, Gerald Henry Louis, The Law of Contract in Canada (4th Ed. 1999), p. 795 [para. 73].

Grant, Stephen M., and Rothstein, Linda R., Lawyers' Professional Liability (2nd Ed. 1998), pp. 158 to 161 [para. 75]; 174, 175 [para. 61].

Jackson, Rupert M., and Powell, John L., Professional Negligence (5th Ed. 2002), pp. 680 to 683 [para. 81].

McGregor, Harvey, Damages (17th Ed. 2003), paras. 8-038 to 8-043 [para. 75].

Waddams, Stephen M., The Law of Damages (Looseleaf Ed.), paras. 13.260 [para. 73]; 13.310, 13.360 [para. 71, footnote 4].

Waddams, Stephen M., The Valuation of Chances (1998), 30 Can. Bus. L.J. 86, generally [para. 72].

Counsel:

Andrew Stein and Amani Oakley, for the appellants;

Raj Anand and Christopher Diana, for the respondent.

This appeal was heard on September 30, 2004, by Catzman, Doherty and Armstrong, JJ.A., of the Ontario Court of Appeal. Doherty, J.A., delivered the following decision for the court on January 26, 2005.