Sliwinski v. Marks

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Labrosse, Moldaver and Feldman, JJ.A.
• Citation: (2006), 211 O.A.C. 215 (CA)
• Date: 17 May 2006
• Subject Matter: DAMAGE AWARDS,MORTGAGES,CONTRACTS,DAMAGES,PRACTICE,BARRISTERS AND SOLICITORS

Sliwinski v. Marks (2006), 211 O.A.C. 215 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. JN.010

Josephine Sliwinski (plaintiff/respondent) v. Richard Marks (defendant/appellant)

(C43864)

Indexed As: Sliwinski v. Marks

Ontario Court of Appeal

Labrosse, Moldaver and Feldman, JJ.A.

June 2, 2006.

Summary:

Sliwinski sued her former solicitor (Marks), seeking to set aside two mortgages that she had granted him, to set aside notices of sale under power of sale issued by Marks, an injunction preventing him for enforcing the said mortgages by power of sale, an accounting of the moneys owed pursuant to the mortgages and punitive damages on the basis that the enforcement proceedings taken by Marks were excessive and abusive.

The Ontario Superior Court, in a decision reported at [2005] O.T.C. 198, conducted an accounting and concluded that Sliwinski owed Marks a total of $39,348.43 representing his original account ($4,757.81), the trial account ($31,686.03) and the appeal account ($2,904.59), less $15,000 already paid, for a balance of $24,348.43. The court found that Marks owed Sliwinski $2,000 which amount was awarded to Sliwinski in injunction proceedings. The court awarded Sliwinski punitive damages of $5,000 and costs on a substantial indemnity scale fixed at $34,906.98. After set-off, Marks owed Sliwinski $17,558.55. The court ordered Marks to immediately discharge at his cost the mortgages and all writs of seizure that he or his agents had filed against Sliwinski. Marks appealed.

The Ontario Court of Appeal increased the $24,348.43 owing to Marks by $4,242.19 to $28,590.62 and reduced the amount owing to Sliwinski to $31,891.78, which resulted in a net amount owing to Sliwinski of $3,311.16.

Barristers and Solicitors - Topic 1560.4

Relationship with client - Duty to client - General - Malicious, oppressive and highhanded conduct - Sliwinski retained Marks to commence a medical malpractice action - She dismissed him and retained new counsel - Shortly before trial, Sliwinski’s new counsel removed himself from the record - Marks agreed to represent Sliwinski - In return, Sliwinski, inter alia, granted Marks a $25,000 mortgage - After the trial began, Marks told Sliwinski if she did not grant him another mortgage for $15,000, he would not show up for trial - Sliwinski granted the mortgage - Marks hired counsel to collect his account - The counsel served Sliwinski with notices of sale for each mortgage and initiated steps to sell the properties - Sliwinski sued Marks seeking, inter alia, to set aside the mortgages, injunctive relief and punitive damages - Sliwinski obtained interlocutory injunctive relief - Marks instructed the sheriff to sell the property which was subject to the $15,000 mortgages - Sliwinski obtained an order restraining the sheriff from proceeding with the sale - The Superior Court held that Marks violated the spirit of the injunction - The enforcement proceeding was excessive and abusive and intended to derail Sliwinski’s efforts to bring the matter to trial - The court awarded Sliwinski $5,000 for punitive damages - The Ontario Court of Appeal affirmed the award - If any one of Mark’s individual actions did not constitute excessive and abusive enforcement, the cumulative effect of his actions over a substantial period clearly amounted to excessive conduct - The conduct was malicious, oppressive and highhanded - See paragraphs 18 to 23.

Barristers and Solicitors - Topic 1571

Relationship with client - Liability for costs - General - Sliwinski obtained an award of punitive damages against her former solicitor (Marks) on the basis that the proceedings taken by Marks to enforce his account were excessive and abusive - Sliwinski was also awarded costs on a substantial indemnity scale - The Ontario Court of Appeal stated that the record indicated that no submissions were made on the scale of costs - That was an error - The higher scale of costs did not follow punitive damages as a matter of course - Sliwinski was a difficult person - Marks was, in effect, the third solicitor representing her in this matter - He had clearly stated to her that he had little confidence in successfully prosecuting her claim - She had not paid his accounts and appeared to have broken promises of payment - Sliwinski was not an inexperienced and vulnerable client - In this case, the punitive damages rendered an award of substantial indemnity costs unnecessary, as the latter were additionally punitive - Sliwinski should not have been additionally rewarded - See paragraphs 26 to 30.

Barristers and Solicitors - Topic 3042

Compensation - Agreements - General - Validity of - Sliwinski retained Marks to commence a medical malpractice action - She dismissed him and retained new counsel - Marks issued an account which was reduced on an assessment appeal (McGarry, J.’s, order) - Marks appealed - Shortly before trial, Sliwinski’s new counsel removed himself from the record - Marks agreed to represent Sliwinski - In return Sliwinski granted Marks a $25,000 mortgage and signed minutes of settlement for Marks’ appeal, which set aside McGarry, J.’s, order and confirmed that she owed Marks $9,000 - The Superior Court held that the mortgage was valid - Sliwinski had understood and voluntarily signed the mortgage to get Marks’ services - However, the settlement was void where Sliwinski had not received legal advice and Marks had abused his position of trust and breached his fiduciary duty by having Sliwinski abandon her right to the upcoming appeal - The Ontario Court of Appeal held that the Superior Court’s findings were inconsistent - Both the mortgage and the settlement formed part of the retainer under which Marks was prepared to take the trial - It was a negotiation of a retainer and Sliwinski could have refused - If the mortgage was valid, the settlement was valid - Marks was entitled to credit for the $9,000 - See paragraphs 11 to 13.

Barristers and Solicitors - Topic 3042

Compensation - Agreements - General - Validity of - Sliwinski retained Marks to commence a medical malpractice action - She dismissed him and retained new counsel - Shortly before trial, Sliwinski’s new counsel removed himself from the record - Marks agreed to represent Sliwinski - As part of the retainer, Sliwinski granted Marks a $25,000 mortgage - After the trial began, Marks told Sliwinski if she did not grant him another mortgage for $15,000, he would not show up the next day for trial - Sliwinski granted the mortgage - The Superior Court held that Marks gave Sliwinski the ultimatum even though he knew that he was ethically bound to show up at trial - Sliwinski was not advised, as part of the legal advice that she received on the mortgage, that Marks would have had to appear at trial whether or not she signed the mortgage - Sliwinski was coerced into signing this mortgage and this had the effect of vitiating her consent - The court declared the mortgage to be null and void - The Ontario Court of Appeal affirmed the decision - See paragraphs 14 to 17.

Barristers and Solicitors - Topic 3049

Compensation - Agreements - General - Duty to advise client re independent legal advice - [See first Barristers and Solicitors - Topic 3042 ].

Barristers and Solicitors - Topic 3169

Compensation - Agreements - The retainer - Duty to client before accepting retainer - [See first Barristers and Solicitors - Topic 3042 ].

Contracts - Topic 1586

Formation of contract - Consent - Duress - Defence of - When available - [See second Barristers and Solicitors - Topic 3042 ].

Damage Awards - Topic 2030.7

Exemplary or punitive damages - Violation of injunction - [See Barristers and Solicitors - Topic 1560.4 ].

Damages - Topic 1338

Exemplary or punitive damages - Violation of injunction - [See Barristers and Solicitors - Topic 1560.4 ].

Mortgages - Topic 1441

The mortgage - Validity of - General - [See second Barristers and Solicitors - Topic 3042 ].

Mortgages - Topic 1570

The mortgage - Signing of - Grounds for setting aside - [See second Barristers and Solicitors - Topic 3042 ].

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to - Improper, irresponsible or unconscionable conduct - [See Barristers and Solicitors - Topic 1571 ].

Practice - Topic 7470.12

Costs - Solicitor and client costs - Entitlement to - Where punitive damages awarded - [See Barristers and Solicitors - Topic 1571 ].

Cases Noticed:

Consolidated Enfield Corp. v. Blair (1996), 89 O.A.C. 183; 28 O.R.(3d) 714 (Div. Ct.), refd to. [para. 26].

Authors and Works Noticed:

Orkin, Mark M., The Law of Costs (2005 Looseleaf), s. 219.1.2 [para. 27].

Counsel:

Mario C. Gravel, for the respondent;

Richard E. Marks, in person.

This appeal was heard on May 17, 2006, by Labrosse, Moldaver and Feldman, JJ.A., of the Ontario Court of Appeal. Labrosse, J.A., released the following judgment for the court on June 2, 2006.