April 16, 1996 Ontario Court (General Division)
Civil procedure -- Summary judgment -- Genuine issue for trial -- Affidavit evidence of plaintiff and defendants in conflict -- Cross-examination of plaintiff on his affidavit demonstrating that no genuine issue of credibility existing
-- Plaintiff's allegations not constituting cause of action
-- Defendants' motion for summary judgment granted and action dismissed.
Professions -- Barristers and solicitors -- Negligence -- Standard of care -- Error of judgment not constituting negligence -- Client basing allegation of negligence on failure of lawyer to raise issue which could not have succeeded
-- Action dismissed on motion by lawyer for summary judgment.
The plaintiff retained the defendant L to represent him at a hearing of the Justices of the Peace Review Council in respect to allegations that he made inappropriate comments to two women while in the course of his duties as a justice of the peace. The Review Council was chaired by Judge L. The plaintiff admitted the allegations against him, and the Review Council recommended that an inquiry be held into the question whether the plaintiff should be removed from office. At the inquiry, the plaintiff was again represented by L, and admitted the allegations against him. The report of the inquiry recommended the removal of the plaintiff from office. The plaintiff then retained K to apply for judicial review. In the application for judicial review, it was not alleged that the hearing before the Review Council was tainted because of Judge L's alleged bias against the plaintiff. The application was dismissed. Following negotiations between K and counsel for the Ministry of the Attorney General, the plaintiff was permitted to resign rather than face dismissal.
The plaintiff sued L and K for damages for negligence. The chief allegations against L were that L was negligent in failing to ask Judge L to disqualify himself from participating as the Chair or as a member of the Review Council because of bias and that L had presented him with an apology to read to the Review Council five minutes before the hearing was to commence and, despite the plaintiff's protests that he was innocent of the allegations against him, advised him that an apology would be in his best interests. Furthermore, the plaintiff alleged that L refused to raise the issue of bias at the inquiry or defend him on the merits because of the position taken before the Review Council. The chief allegations against K were that K did not advance as a ground for judicial review the alleged bias of Judge L and advised the plaintiff that unless he resigned he would be fired the next day. The defendants moved for summary judgment dismissing the action against them.
Held, the motion should be granted and the action dismissed.
An error of judgment by a lawyer does not constitute negligence. A lawyer who acts in good faith, in an honest belief that his or her advice and conduct of a client's litigation are well founded, and in the best interest of the client, is not answerable for an error of judgment.
K had established that there was no genuine issue for trial in respect of the allegations which the plaintiff made about the legal services which K provided. Those allegations did not involve K falling below a standard of care in the services that he provided, and, therefore, did not constitute negligence. The only allegation which might be characterized as having any substance was that he failed to advance, in support of the application for judicial review, the argument that the Review Council was improperly constituted because Judge L presided over its hearing. K did not advance this submission because he believed that it would be rejected. He was correct. The argument would not have been successful because what L did or did not do in representing the plaintiff before the Review Council could have had no effect on the inquiry. Therefore, it was totally irrelevant to the application for judicial review.
With respect to the other allegations, it is true generally that if there is an issue of credibility which is material, a trial will be required. However, even though there was a conflict in the evidence with respect to these allegations, none of the facts relating to the allegations was material to the action, because none of the allegations constituted negligence on the part of K. None of the allegations, therefore, constituted a cause of action.
The claim against L did not raise a genuine issue for trial. In cross-examining the plaintiff on his affidavit, counsel for L confronted the plaintiff with notes in his handwriting setting out the strategy which he and L intended to follow before the Review Council, i.e., an apology and an undertaking to take a sexual harassment awareness course. The plaintiff admitted that he wrote the notes. He provided no independent evidence that he had not spoken the offensive words to the women, even though he claimed that he had witnesses to support his position. He produced no evidence of Judge L's alleged bias, no evidence that Judge L influenced the result of the hearing before the Review Council, and no evidence that the fact that L continued to represent him before the inquiry resulted in the inquiry's recommendation that he be dismissed. An issue of credibility precludes the granting of summary judgment only when what is said to be an issue of credibility is a genuine issue of credibility. Although the plaintiff may have raised an issue of credibility, his cross-examination by counsel for L demonstrated that it was far from constituting a genuine issue of credibility.
Irving Ungerman Ltd. v. Galanis (1991), 4 O.R. (3d) 545, 83
D.L.R. (4th) 734, 1 C.P.C. (3d) 248, 20 R.P.R. (2d) 49n (C.A.),
Rogers Cable TV Ltd. v. 373041 Ontario Ltd. (1994), 22 O.R. (3d) 25 (Gen. Div.), folld
Other cases referred to 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547, 43 R.P.R. (2d) 161 (C.A.); Brenner v. Gregory,
 1 O.R. 252, 30 D.L.R. (3d) 672 (H.C.J.); Clarke v.
Ontario (Attorney General),  1 O.R. 539, 54 D.L.R. (2d)
577 (C.A.); Demarco v. Ungaro (1979), 21 O.R. (2d) 673, 95
D.L.R. (3d) 385, 8 C.C.L.T. 207 (H.C.J.); Karpenko v. Paroian, Courey, Cohen & Houston (1980), 30 O.R. (2d) 776, 117 D.L.R. (3d) 383 (H.C.J.); Royal Bank of Canada v. Feldman (1995),
27 O.R. (3d) 322n (C.A.), quashing (1995), 23 O.R. (3d) 798
Statutes referred to
Justices of the Peace Act, R.S.O. 1990, c. J.4, ss. 10(2), 12 Public Authorities Protection Act, R.S.O. 1990, c. P.38, s.
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20.04(1), (2), 21.01(1)(b)
Authorities referred to
Campion and Dimmer, Professional Liability in Canada (Toronto: Carswell, 1994), p. 7-29
MOTION for summary judgment dismissing an action.
Philip M. Epstein, Q.C., and Michael B. Kleinman, for moving
Leslie McIntosh, for defendants, Gerald Lapkin and the Queen in Right of Ontario.
Marva M. Jemmott, Q.C., for responding party (plaintiff).
BORINS J.: -- This is a motion by the defendants Earl Levy and Irwin Koziebrocki, pursuant to rule 21.01(1) of the Rules of Civil Procedure, for summary judgment dismissing all claims against them in the statement of claim.
On December 19, 1995 a motion by the defendants Gerald Lapkin and Her Majesty the Queen in Right of Ontario, pursuant to rule 21.01(1)(b), was successful, with the result that the statement of claim was struck out, and the action was dismissed, against them. In the case of Judge Lapkin, the claim against him was found to be barred by s. 10(2) of the Justices of the Peace Act, R.S.O. 1990, c. J.4, and s. 7(1) of the Public Authorities Protection Act, R.S.O. 1990, c. P.38. The claim against Her Majesty the Queen, which, as I understand it, was for damages for loss of office, was dismissed on the authority of Clarke v. Ontario (Attorney General),  1 O.R. 539, 54 D.L.R. (2d)
The circumstances giving rise to the plaintiff's claims against Levy and Koziebrocki are somewhat unusual. Although I will examine the evidence in detail in considering the issue presented by this motion, an overview of the circumstances will provide a helpful context for the articulation of the issue.
The plaintiff was appointed a justice of the peace in 1980. As a result of complaints made concerning the plaintiff's conduct, a hearing took place on March 2, 1993, before the Justices of the Peace Review Council, under the provisions of the Justices of the Peace Act. Judge Lapkin, who was the Co- ordinator of the Justices of the Peace and a member of the Review Council at the time, chaired the proceedings before the six-person Review Council. Consequent to the plaintiff's admission of the allegations against him, the Review Council recommended that an inquiry be held, under s. 12 of the Act, into the question whether the plaintiff should be removed from office. The inquiry was conducted by Her Honour Judge Mary Hogan on December 20, 1993. At the inquiry, the plaintiff admitted the allegations against him. In a report dated January 21, 1994, the inquiry recommended the removal of the plaintiff from office. Neither before the Review Council, nor the inquiry, did the plaintiff take any issue with Judge Lapkin's participation as chair of the Review Council. Mr. Levy, who is a lawyer, represented the plaintiff before the Review Council and the inquiry.
The plaintiff retained another lawyer, Mr. Koziebrocki, to apply for judicial review of the inquiry. In the application for judicial review, it was not alleged that Judge Lapkin had acted in bad faith as chair of the Review Council and, specifically, that the hearing before the Review Council was tainted because of Judge Lapkin's alleged bias against the plaintiff. The application was dismissed by the Divisional Court on April 18, 1994. A motion for leave to appeal to the Court of Appeal was dismissed on June 13, 1994. Following negotiations between Mr. Koziebrocki and counsel for the Ministry of the Attorney General, the plaintiff was permitted to resign his office, rather than face dismissal as recommended by the inquiry. He resigned on June 21, 1994. Consequent to his resignation, the order in council appointing him to the office of Justice of the Peace was revoked by order in council on June 23, 1994.
The statement of claim was issued on December 21, 1994. It calls into question the nature and quality of the legal assistance and advice which the plaintiff received from Mr. Levy and Mr. Koziebrocki, and seeks damages of $500,000 from them, and the other defendants. It was alleged in the statement of claim that Mr. Levy was negligent in his representation of the plaintiff because he failed to interview certain defence witnesses, "misled" Mr. Blackburn into admitting the facts of the two complaints before the Review Council and the inquiry, failed to assert the plaintiff's right to a fair and impartial hearing before the Review Council arising from Judge Lapkin's alleged bias, disclosed the plaintiff's medical records without his consent and in "undertaking the continued representation of the plaintiff when he knew or ought to have known that his so doing would compromise the interests of the plaintiff and result in the public inquiry recommending the removal of the plaintiff from office".
As I understand it, the plaintiff's claim against Mr. Koziebrocki, as alleged in the statement of claim, is premised on the allegation that Mr. Koziebrocki was an employee, or associate, of Mr. Levy. He described Mr. Koziebrocki as being "of [Levy's] office", and alleged that both lawyers "were negligent in the undertaking of the application for judicial review when they knew or ought to have known that the continued representation of the plaintiff by their office would compromise the interests of the plaintiff". It was further alleged that Mr. Koziebrocki was negligent as he failed to assert the plaintiff's right to a fair and impartial hearing and revealed to the press that the plaintiff had resigned, contrary to the plaintiff's instructions. As a result of the alleged negligence of Mr. Levy and Mr. Koziebrocki, and the allegations made against Judge Lapkin, the plaintiff claimed that he "lost his office five years before his scheduled retirement with a corresponding loss of salary".
Central to the plaintiff's claims against Mr. Levy and Mr. Koziebrocki were his allegations against his supervisor, Judge Lapkin. The plaintiff alleged that Judge Lapkin was his "avowed enemy" who "had exhibited a continuing animosity against him in the course of their work relationship". It was the plaintiff's position that Mr. Levy should have objected to Judge Lapkin's chairing of the Review Council, and that Mr. Koziebrocki should have raised his participation on the Review Council as a ground for judicial review of the inquiry conducted by Judge Hogan.
The evidence of Mr. Levy and Mr. Koziebrocki, which is contained in their affidavits, is in conflict with the plaintiff's evidence, contained in his affidavit, in respect to a number of material issues. These conflicts in the evidence constitute a genuine issue for trial, within the meaning of rule 20.04(1) and (2): Irving Ungerman Ltd. v. Galanis (1991), 4 O.R. (3d) 545, 83 D.L.R. (4th) 734 (C.A.). However, it was the submission of Mr. Epstein, on behalf of Mr. Levy and Mr. Koziebrocki, that his cross-examination of the plaintiff succeeded in destroying the veracity of the statements in his affidavit which appeared to be in conflict with the evidence of the defendants. In other words, with the destruction of the plaintiff's credibility when he was cross-examined, the only evidence which the court should consider is the unrefuted evidence of Mr. Levy and Mr. Koziebrocki, who were not cross- examined, and which, together with the plaintiff's cross- examination, establishes that there is no genuine issue for trial. He also relied on the absence of any evidence in the record to show, or even suggest, that if Mr. Levy and Mr. Koziebrocki had conducted the case differently before the Review Council, the inquiry, the Divisional Court or the Court of Appeal, the result of each proceeding would have been different. A proper consideration of whether the defendants have established that the plaintiff's claims against them do not constitute a genuine issue for trial requires a careful and thorough examination and consideration of the evidence.
The record contains the following evidence:
(1) Mr. Levy's affidavit sworn June 26, 1995 in support of this motion.
(2) Mr. Koziebrocki's affidavit sworn June 26, 1995 in support of this motion.
(3) The transcript of the hearing of March 2, 1993 before the Justices of the Peace Review Council.
(4) The transcript of the hearing before the Commission of Inquiry, conducted by Judge Hogan on December 20, 1993.
(5) The "Report of the Judicial Inquiry Re: His Worship Leonard Blackburn, a Justice of the Peace", released on January 21, 1994.
(6) Mr. Blackburn's affidavit sworn September 22, 1995 in response to this motion.
(7) Mr. Levy's responding affidavit sworn November 16, 1995.
(8) Mr. Koziebrocki's responding affidavit sworn November 9, 1995.
(9) The transcript of the cross-examination of Mr. Blackburn on his affidavit, which took place on December 11, 1995.
Neither Mr. Levy, nor Mr. Koziebrocki, was cross-examined.
(i) Mr. Levy
I will review, first, the evidence in respect to the plaintiff's claim against Mr. Levy. The plaintiff made five allegations concerning the nature of the legal representation provided by Mr. Levy. Particulars of the allegations are pleaded in paras. 14 and 16 of the statement of claim. Mr. Levy, of course, has the burden of satisfying the court that there is no genuine issue for trial with respect to each of the allegations. I will, therefore, review Mr. Levy's affidavit evidence, and Mr. Blackburn's affidavit evidence, respecting each allegation. Then, I will review Mr. Blackburn's evidence when he was cross-examined on his affidavit.
Mr. Blackburn retained Mr. Levy to represent him at a hearing of the Justices of the Peace Review Council in respect to allegations that he made inappropriate comments to two women while in the course of his duties as a justice of the peace. Mr. Levy swore that, after meeting with the plaintiff, he wrote him a letter dated January 28, 1993 in which he recommended, based on interviews which he had with potential witnesses and discussions with counsel to the Review Council, Mr. Hunt, that the plaintiff admit the allegations of the complainants, apologize to them and undertake to take a sexual harassment awareness course. He advised Mr. Blackburn that he had interviewed his secretary, Ms. Jong, and was of the opinion that her evidence would not be helpful. He also stated that he had interviewed potential character witnesses suggested by the plaintiff. He was of the opinion that only two of them would be helpful to the plaintiff, who agreed that these people be the only character witnesses who would testify.
The relevant portions of Mr. Levy's letter of January 28, 1993 stated:
I must regretfully tell you that in my view the Justice of the Peace Review Council will in all likelihood find that the charges against you have been made out and will accede to Mr. Hunt's request that it recommend a public inquiry. It is also my view that by denying the charges against you and having your credibility successfully challenged the realistic result of a public inquiry would be your dismissal.
There is an approach that you might wish to consider. It would necessitate that you admit the allegations against you and that you apologize to the complainants. With this approach you would be seen as being remorseful as well as saving the complainants, particularly the young girl, from the stress of testifying. I feel that we would also have to come up with a plan that would satisfy the Council that there would not be a reoccurrence of similar allegations (assuming you admit). In that regard I would suggest that you take a public sexual harassment course which is satisfactory to the Council and request that it await your successful completion of that course. This suggested plan, together with character evidence, your age and medical reports as to your health problems may lead the Council not to recommend a public inquiry. However, in my view it is the best approach. I wish to also point out that the normal rules of evidence that apply in a criminal court are not applicable to this hearing.
Mr. Levy swore he prepared a written admission and apology for Mr. Blackburn to read to the Review Council, which he has been unable to locate. It would appear that Mr. Blackburn retained the written apology, as it is an exhibit to his affidavit. From the transcript of the hearing before the Review Council, it is clear that Mr. Blackburn read it before the Review Council, adding at the end of what Mr. Levy had written:
"That's my formal apology." Mr. Levy discussed the apology in his affidavit of June 26, 1995.
14. Mr. Blackburn carefully considered not only whether he would make a formal apology to the complainants but the specific terms of such apology as well. He had ample opportunity to review the text of the apology and to consider the effect the apology would likely have on him and the outcome of the proceedings. Mr. Blackburn carefully reviewed the apology at my office on the day prior to the hearing before the Justices of the Peace Review Council. I had extensive discussions with Mr. Blackburn throughout the course of my retainer as to the best approach in all of the circumstances and, based on those discussions, Mr. Blackburn chose to formally acknowledge his misconduct and apologize to the complainants.
The transcript of the hearing before the Review Council shows that Mr. Blackburn stated the following:
I have read and understand your allegations against me made by Ms. Patel and Ms. Bubic. I do not dispute them and wish to apologize to both ladies for my objectionable conduct.
I understand that my behaviour was upsetting to both Ms. Patel and Ms. Bubic. This was not my intention nor was any personal insult intended. It is difficult for me to understand why I acted so foolishly on these two occasions during one week in my whole life. However, even at my age there are lessons to be learned and I have learned from what I have done. I assure you and the members of the council that there will be no repetition of this conduct and I hope you both can forgive me. That's my formal apology.
Mr. Blackburn took issue with this evidence. He denied receiving Mr. Levy's letter to him dated January 28, 1993, but admitted that Mr. Levy had discussed "many of the evidentiary matters raised in the letter". In his affidavit he gave the following account of how he came to read his admission and apology to the members of the Review Council:
12. On March 2, 1993, approximately (5) minutes before the Review Council hearing was to commence, Mr. Levy handed a handwritten apology to me and instructed me that I was to read it at the hearing when called upon. Attached hereto and marked as Exhibit "A" to this my Affidavit is a true copy of the apology. On seeing the first few lines of the document, I protested, as I had come to the hearing, expecting to be defended on the complaints and would not hired [sic] counsel had I intended to admit the allegations and apologize.
13. On hearing my protest, Mr. Levy informed me that he had met with counsel for the Review Council and that everything would be all right. On being assured that this course of action was in my interest and, given that I had no time to consider it, before the hearing was called, I resolved to do as I was instructed by my counsel who apparently had made some arrangement favourable to me.
16. Despite my agreeing to read the apology, I have never been prepared to admit the truth of the allegations and for that reason, I (stated) "that's my formal apology" to indicate that my participation was part of a formal arrangement only.
I would note, when cross-examined, Mr. Blackburn testified that the allegations made against him by the complainants are untrue. It was his evidence that he never said anything remotely close to what they have alleged. He took the position that the complaints against him were orchestrated by Judge Lapkin who, he alleged, wanted him removed from office.
Mr. Blackburn's evidence in support of the alleged negligence of Mr. Levy in failing to interview defence witnesses was vague and lacking in particulars. He did not name any prospective witness, other than his secretary, Kathy Jong, and claimed that Mr. Levy did not show him a statement that he had obtained from her.
In his responding affidavit Mr. Levy swore that the contents of Ms. Jong's statement were disclosed to Mr. Blackburn. In the same affidavit he swore that the allegations in paras. 12, 13 and 16 of Mr. Blackburn's affidavit are untrue, and added that the plaintiff "had agreed to the course of action that was taken before the Justices of the Peace Review Council well before his appearance on March 2, 1993".
Mr. Blackburn has alleged that Mr. Levy was negligent in failing to ask Judge Lapkin to disqualify himself from participating as the Chair, or a member, of the Review Council because of bias. As I have indicated, it is Mr. Blackburn's contention that the complaints are untrue, the proceedings against him were orchestrated by Judge Lapkin, had Judge Lapkin not been a member of the Review Council it would not have recommended an inquiry, and if there had not been an inquiry there would not have been a recommendation that he be removed from office. There were six members of the Review Council. Five of the six members joined in the Review Council's recommendation that an inquiry be held under s. 12 of the Justices of the Peace Act.
In his affidavit, Mr. Levy swore that when the plaintiff commented to him, at the convening of the Review Council, that Judge Lapkin did not like him, the plaintiff was unable to elaborate. Mr. Levy continued: "Based on Mr. Blackburn's vague and unsubstantiated remarks, it was my considered opinion that there were no grounds for bias and that any application to have Senior Judge Lapkin excluded would have been unsuccessful." He added:
9. During the course of the hearing, I was asked by the Senior Judge whether I had any objection to Senior Judge Lapkin acting as Chair. I replied in the negative. In my respectful opinion, any objection would simply have resulted in His Honour Judge Linden sitting as Chair. The proceedings would have continued. Given that Mr. Blackburn was accepting responsibility for and acknowledging the truth of the allegations made against him, any objection to Senior Judge Lapkin sifting as Chair would have lost considerable force. In my respectful opinion, any opinions formed by Senior Judge Lapkin would not have carded any more weight whether he sat as Chair or not.
Mr. Blackburn did not agree with Mr. Levy's evidence on this issue. His evidence is found in paras. 6 and 14 of his affidavit:
6. When I retained Mr. Levy and during the course of my retainer, I pointed out to him my belief that the charges were orchestrated against me by co-workers who resented me. I expressed to him my conviction that the defendant Gerald Lapkin had seized upon the complaints and would push them as far as he could to my detriment. I informed Mr. Levy that the co-ordinator despised me and had repeatedly displayed an animus against me. I provided Mr. Levy with letters from the co-ordinator as well as the transcripts of matters pertaining to his letters which I believed showed a pattern of his attempts to discredit me.
14. On my arrival in the hearing, I was shocked to see the
co-ordinator presiding at the hearing. Knowing that he was my avowed enemy who had earlier vowed to see me "beg (my) bread", I reacted with alarm and pointed out to Mr. Levy that the Justices of the Peace Act did not permit the co-ordinator to preside at the hearing. I reminded him the co-ordinator was my "mortal enemy" and instructed him to have him removed as Chair. Mr. Levy responded that "it (did) not make any difference. The result will be the same."
In his responding affidavit, Mr. Levy denied the allegations contained in paras. 6 and 14.
Mr. Levy deposed that Mr. Blackburn continued to retain him with respect to the Commission of Inquiry. He said "throughout the course of my retainer, Mr. Blackburn repeatedly expressed his complete satisfaction with the manner in which matters were proceeding and with the legal representation provided". Mr.
Levy rejected the plaintiff's allegation that his continued representation of him "compromised his interests" and resulted in the inquiry recommending his removal from office.
In para. 19 Mr. Levy stated:
19. The Commission of Inquiry was scheduled for December 20, 1993. On December 17, 1993, I met with Mr. Blackburn in my office to review a Statement of Agreed Facts, which had been prepared by Commission of Inquiry counsel, Davies Ward & Beck and myself. After reviewing the Statement of Agreed Facts and obtaining my considered advice, Mr. Blackburn willingly signed the Statement of Agreed Facts, a copy of which is attached hereto and marked as Exhibit "H".
The statement of agreed facts consisted of 12 pages and contained background information about the plaintiff, the details of the complaints about his conduct which had been made by the two women, the text of the plaintiff's acknowledgement of the complaints and his apology before the Review Council, reference to the sexual harassment awareness course taken by the plaintiff, a summary of the character evidence and Mr.
Blackburn's acknowledgement that, before signing it, he had reviewed it and obtained Mr. Levy's advice.
Mr. Blackburn's response to Mr. Levy's evidence concerning the inquiry is as follows:
19. After the Review Council recommended a public inquiry into my conduct, I demanded that Mr. Levy defend me on the merits as I had paid him to do. I also demanded that he object to the inquiry itself on the basis of its irregularity. I was convinced, on the basis of assurances given me by my solicitor, that the outcome was not the one he expected as a result of his discussion with counsel for the Review Council. I accepted that the co-ordinator had won over the Council to seek my removal from Office, as he had vowed, ignoring any assurances or arrangement between counsel.
. . . . .
21. Following the appointment of the Commissioner, and as matters proceeded to a hearing, I was advised by Mr. Levy that he could not raise the irregularity of the Review Council before the Commission of Inquiry and that he could not defend me on the merits because of the apology before the Review Council. I was not prepared to accept this advice and insisted that he attempt to do so, nonetheless.
22. I was advised by Mr. Levy that he had met with the Commissioner and that she was sympathetic to me.
23. He presented a Statement of Agreed Facts to me which he wished me to sign. This, he said, he had worked out with Counsel for the Commissioner. As I read the document, my solicitor demanded that I sign and return the document, stating that I was reading too slowly and that it had to be delivered forthwith to Counsel for the Commissioner. I complied. I never had the opportunity to see the medical report which apparently was part of the document.
24. At the public enquiry, the document was filed. It was with great shock and consternation that I received news from my daughter that my medical problems were being discussed in news reports. My wife was devastated.
In his responding affidavit Mr. Levy said: "The allegations contained in paras. 19, 21, 22 and 23 of Mr. Blackburn's affidavit are all untrue."
Mr. Levy and Mr. Blackburn disagree about whether Mr. Levy had authority to introduce his medical records into evidence.
Mr. Levy produced Mr. Blackburn's written authorization and direction to his doctor, asking that Mr. Levy be sent a medical report. It is this report, which formed part of the agreed statement of facts signed by Mr. Blackburn, that he claims Mr. Levy did not have his authority to present to the inquiry. It stated, inter alia, that Mr. Blackburn is impotent.
(ii) Mr. Koziebrocki
I will now review the evidence that applies to the plaintiff's claim against Mr. Koziebrocki. The plaintiff made the three following allegations about Mr. Koziebrocki in the statement of claim.
18. The Plaintiff states that both defendant solicitors were negligent in the undertaking of the application for judicial review when they knew or ought to have known that the continued representation of the Plaintiff by their office would compromise the interests of the Plaintiff.
19. The Plaintiff further states that the defendant Irwin Koziebrocki was negligent in failing to assert the right of the plaintiff to a fair and unbiased process and to a proper hearing.
20. The Plaintiff further states that, contrary to his express instructions, the defendant Irwin Koziebrocki revealed, to the press, the fact of his resignation.
Following the delivery of Judge Hogan's report recommending that Mr. Blackburn be removed from office, Mr. Levy recommended that he consult Mr. Koziebrocki with respect to a possible appeal. The two lawyers met with Mr. Blackburn and reviewed the courses of action available to him. Mr. Blackburn chose not to pursue the matter before the courts but, rather, to submit a letter of resignation to the Attorney General. However, after delivering his letter of resignation, he decided to retract his resignation, and instructed Mr. Koziebrocki to bring an application for judicial review in relation to Judge Hogan's report.
Mr. Koziebrocki stated in his affidavit that he followed Mr. Blackburn's instructions and brought an application for judicial review. Mr. Blackburn reviewed and approved the facturn filed in support of the application. The facturn did not advance, as a ground for judicial review, the alleged bias of Judge Lapkin as a member of the Review Council. The Attorney General agreed to delay Mr. Blackburn's removal from office, pending the disposition of the application. Following the dismissal of the application by the Divisional Court, the plaintiff instructed Mr. Koziebrocki to seek leave to appeal to the Court of Appeal. Once again, the plaintiff reviewed and approved the factum filed with the Court of Appeal, which was similar to the factum filed with the Divisional Court. Following the dismissal of the application for leave to appeal, the plaintiff instructed Mr. Koziebrocki to enter into negotiations with the Attorney General with a view to permitting him to resign, rather than be removed from office. Mr. Koziebrocki succeeded in the negotiations, thereby enabling the plaintiff to collect a severance payment, as well as a pension. Finally, Mr. Koziebrocki stated that he was instructed by Mr. Blackburn to respond to inquiries from the press by saying that he had resigned because he had reached the age of 65, and wished to "retire and head off in new directions". Mr. Koziebrocki and Mr. Levy are not associated with each other in the practice of law.
This was Mr. Blackburn's response, as stated in his affidavit:
27. When I informed Mr. Levy that I wished my name cleared and wanted an appeal, he recommended that I contact the defendant IRWIN KOZIEBROCKI who, he stated, had never lost an appeal.
28. I informed Mr. Koziebrocki that I was concerned that the bias of the Co-ordinator who presided at the Review Council was the reason a public inquiry had been recommended, removing discipline options from consideration other than dismissal. Initially, he commented that "the only person I (could) go after now was my lawyer;" however, I believe that on realizing Mr. Levy, with whom he shared spared [sic] and appeared to be associated, had been my lawyer, he proposed judicial review of the Commissioner's findings.
29. I urged him to attack the irregularity of the Review Council Hearing, but he demurred stating that such evidence was inadmissable [sic] at the stage of judicial review. Nonetheless, I persisted that he do so and informed him that I wished to be present on the hearing.
30. Mr. Koziebrocki instructed me that he did not wish me present at the hearing as litigants did not attend such proceedings and that he was bringing a charter application. I did not expressly approve this procedure nor the contents of the factum as I would have represented myself and saved the expense had I been capable of doing [sic] other than relying on the "wisdom" of my solicitor.
31. Mr. Koziebrocki's efforts on my behalf, invoking the charter rather than attacking the jurisdiction of the Council, were unsuccessful and he instructed me to consider seeking leave of the Supreme Court of Canada to appeal.
32. While I was considering this option, bearing in mind that I had lost all confidence in my solicitors, I was called by Mr. Koziebrocki who advised me that unless I resigned forthwith I would be fired the next day by Cabinet and lose any benefits earned by reason of my employment. He asserted that Crown counsel had made this clear to him.
33. Alarmed by this news, I resigned as he instructed; however, I stipulated that under no circumstances was he to make known to the press that I done so as I and my family could not endure any further humiliation by a rehashing of the news which had been aired exhaustively in our native country where I had been a highly respected public servant for many years, bringing great distress to my family.
In his responding affidavit of November 9, 1995, Mr. Koziebrocki took issue with virtually everything contained in paras. 27 to 33 of Mr. Blackburn's affidavit. He stated that he explained to Mr. Blackburn that it was irrelevant to the application for judicial review of Judge Hogan's report that Judge Lapkin should have been disqualified from participating in the hearing of the Review Council on the ground of bias. He did not advise Mr. Blackburn to commence proceedings against Mr. Levy. He discussed all legal issues with the plaintiff, who approved the factum filed with the Divisional Court. After the plaintiff's application for leave to appeal to the Court of Appeal was dismissed, Mr. Koziebrocki advised him that his only option remaining was to seek leave to appeal to the Supreme Court of Canada, and that if he did not do so, the Attorney General would be at liberty to act upon Judge Hogan's recommendations. Mr. Koziebrocki continued:
12. Mr. Blackburn informed me that he had decided not to appeal further, as he did not think the chances for success were high and he did not want to throw good money after bad money. He asked me to negotiate a resignation and settlement for him, which I did. The terms of this arrangement, essentially, were that Mr. Blackburn would be permitted to resign, receive all of the benefits available to him, and not be further disgraced by being fired by the Cabinet of the Provincial Government.
(iii) Cross-examination of Mr. Blackburn
Mr. Epstein conducted a lengthy cross-examination of Mr. Blackburn on the affidavit which he swore in response to this motion. Mr. Blackburn maintained the allegations made by the complainants were untrue and he denied that he made the remarks to them, which they had attributed to him. He said that he did not discuss with Mr. Levy that he would make an admission of the complaints and apologize to the complainants before the Review Council until five minutes before the Review Council commenced its hearings. He read the admission and apology to the Review Council as he considered that it was part of a plea bargain which Mr. Levy had made with counsel to the Review Council, who had assured Mr. Levy that "everything would be O.K.". Mr. Blackburn said that he did not dismiss Mr. Levy after the Review Council had ordered the inquiry, even though Mr. Levy had misled him into making the admission, because Mr. Levy had assured him that he had talked to Judge Hogan who told him "she was prepared to be reasonable in the matter" and that she was "very sympathetic" to him. Mr. Blackburn admitted that Mr. Levy had interviewed his secretary, Ms. Jong, and that Mr. Levy said that there were two versions of her testimony. He also admitted that he accepted Mr. Levy's judgment that he could, therefore, not call Ms. Jong as a defence witness because he felt that she would not stand up to cross- examination.
Mr. Epstein presented Mr. Blackburn with a sheet of paper, which he told him came from Mr. Levy's file, which contained the following written notes:
Make the apologise[sic]
Make the apologise[sic]
promise no reoccurrence of any such incident
Remain in the Penalty Box and continue to do what I am currently assign [sic] to do for the duration of during [sic] the training program
1. Signing orders suspending drivers licence for unpaid fines and other relevant conviction
2. Signing orders for vehicle plate denials for unpaid fines
3. Reviewing Fail to respond cases and entering conviction assessing fines and cost
Mr. Blackburn admitted that the notes were in his handwriting. However, he did not know where they came from or how they came to be in Mr. Levy's file. He suggested that the notes could have been stolen from his office, and suggested that they could have been pilfered by an unnamed justice of the peace who was Mr. Levy's friend. Mr. Epstein's cross-examination respecting the notes comprised 80 questions. It was put to Mr. Blackburn, in five or six different questions, that the notes were a summary of the strategy, which he had developed with Mr. Levy, which would be followed before the Review Council, and which had been outlined in Mr. Levy's letter of January 28, 1993. Mr. Blackburn neither agreed, nor disagreed, with this suggestion. He said: "I don't know." He would not agree with Mr. Epstein that, if this were true, it gave the lie to everything which Mr. Blackburn stated in his affidavit and on his cross- examination, concerning Mr. Levy's actions in representing
Finally, although Mr. Blackburn admitted that he signed the agreed statement of facts that was filed with the Commission of Inquiry, he said that he had read the first page or two only. He claimed that he did not know that the agreed statement of facts contained the allegations of his misconduct and incorporated the admission and apology which he had read at the hearing before the Review Council. He repeated that he agreed with Mr. Levy's recommendation to take the same position before the inquiry as he had taken before the Review Council because he had told him that Judge Hogan said she would be "very sympathetic" to him.
With respect to Mr. Koziebrocki, it was Mr. Blackburn's evidence, on cross-examination, that the following constitute the only particulars of his alleged negligence arising out of the legal services which he provided:
(1) He failed to advance, in support of the application for judicial review of Judge Hogan's report and the application for leave to appeal to the Court of Appeal, that the Review Council was improperly constituted because Judge Lapkin, not Chief Judge Linden, presided over its hearing.
(2) He told him he could not attend in Divisional Court when the application for judicial review was presented.
(2) He told him he could not attend in Divisional Court when the application for judicial review was presented.
(3) He misled him, after the Court of Appeal refused to grant leave to appeal, when he told him if he did not resign he "would be fired tomorrow and lose all [his] severance pay".
(4) He advised the press that Mr. Blackburn had resigned, contrary to his instructions.
The principles that apply to a motion for summary judgment have been discussed in two recent cases. In 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 at p. 557,
43 R.P.R. (2d) 161 (C.A.), Osborne J.A. stated:
The purpose of Rule 20 is clear. The rule is intended to remove from the trial system, through the vehicle of summary judgment proceedings, those matters in which there is no genuine issue for trial: see Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 225, 45 C.P.C. (2d) 168 (Gen. Div.),
Irving Ungerman Ltd. v. Galanis (1991), 4 O.R. (3d) 545, 83
D.L.R. (4th) 734 (C.A.). The motions judge hearing a motion
for summary judgment is required to take a hard look at the evidence in determining whether there is, or is not, a genuine issue for trial. The onus of establishing that there is no triable issue is on the moving party, in this case the purchaser. However, a respondent on a motion for summary judgment must lead trump or risk losing: see rule 20.04(1). Generally, if there is an issue of credibility which is material, a trial will be required: see Irving Ungerman, supra.
In Rogers Cable TV Ltd. v. 373041 Ontario Ltd. (1994), 22
O.R. (3d) 25 (Gen. Div.), in which the plaintiff was the moving party, the court said at pp. 27-28:
Rule 20 contemplates that a complete evidentiary record will be before the motions court judge. The parties must put their "best foot forward" at that time; Pollon v. American Home Assurance Co. (1991), 3 O.R. (3d) 59 at p. 61, 79 D.L.R. (4th) 178 (C.A.), citing with approval Pizza Pizza Ltd. v.
Gillespie (1990), 75 O.R. (2d) 225, 33 C.P.R. (3d) 515 (Gen.
Div.). This requirement was again emphasized by the Court of Appeal in Bluestone v. Enroute Restaurants Inc. (1994), 18 O.R. (3d) 481 at p. 492, 115 D.L.R. (4th) 557. I am entitled to assume, therefore, that the defendant has done so and that if this case were to go to trial it would present no additional evidence. I am, thus, entitled to assume that the defendant will be unable to provide any explanation for its admission of the debt and the four post-dated cheques it gave the plaintiff to pay the debt. The requirement that the parties put their "best foot forward" goes together with the requirement that the motions court judge "take a hard look at the merits of the action at this preliminary stage" to determine whether the moving party has succeeded in establishing that there is no genuine issue for trial: National Trust Co. v. Maxwell (1989), 34 C.P.C. (2d) 211 at p. 217, 3 R.P.R. (2d) 263 (Ont. H.C.J.). This is because, in determining whether or not there is a genuine issue for trial, it must be clear that a trial is unnecessary: Ungerman, supra, at p. 551: Farm Credit Corp. v. Pipe (1993), 16 O.R. (3d) 49 at p. 61, 106 D.L.R. (4th) 595 (C.A.). See, also, Royal Bank of Canada v. Feldman (1995), 23 O.R. (3d) 798 at pp. 799-800 (Gen. Div.), in which an appeal was quashed by the Court of Appeal as being "manifestly devoid of merit", pursuant to the endorsement of Houlden J.A., delivered on November 1, 1995 [reported 27 O.R. (3d) 322n].
The availability of an action by a client for breach of contract or negligence against his lawyer for the lawyer's conduct in defending or prosecuting a civil or criminal court case is limited. Many of the decisions made by a barrister in a courtroom or in preparation for a trial involve the exercise of judgment. Although Canadian courts have rejected granting immunity to a barrister for civil liability claims in respect of the conduct of litigation, a barrister will not be found negligent for mere errors of judgment. An error must be egregious in order to constitute negligence. Among the authorities cited by the authors in support of their statement of the law are Demarco v. Ungaro (1979), 21 O.R. (2d) 673, 95 D.L.R. (3d) 385 (H.C.J.), and Karpenko v. Paroian, Courey, Cohen & Houston (1980), 30 O.R. (2d) 776, 117 D.L.R. (3d) 383 (H.C.J.).
I adopt as accurate the statement of the general rule as to the standard of care of a solicitor, which, in my view, applies to a barrister in the position of the defendants in this case, set forth by Grant J. in Brenner v. Gregory,  1 O.R. 252 at p. 257, 30 D.L.R. (3d) 672 (H.C.J.), which was specifically adopted by Anderson J. in the Karpenko case at p. 780, as follows:
In an action against the solicitor for negligence it is not enough to say that he has made an error of judgment or shown ignorance of some particular part of the law, but he will be liable in damages if his error or ignorance was such that an ordinarily competent solicitor would not have made or shown it: Aaroe and Aaroe v. Seymour et al.,  O.R. 736, 6 D.L.R. (2d) 100, [1956-60] I.L.R. 1010n.
At p. 790 Anderson J. added:
I consider it to be clear on the authorities that a solicitor, whether acting in matters which, in the foregoing sense, can be said to pertain to the conduct of the case or not, is not responsible for errors of judgment. I also take it that where a decision is made by counsel in the conduct of a case he will, even in Ontario, be liable to suit only in a clear case of error.
In my view, the authorities support the conclusion that the standard of care required of a lawyer is not one of perfection. An error of judgment alone does not constitute negligence. A lawyer who acts in good faith, and in an honest belief that his or her advice and conduct of a client's litigation are well founded, and in the best interest of the client, is not answerable for an error of judgment. However, a lawyer is answerable to his or her client for any loss incurred by the client which results from a want of that degree of knowledge and skill ordinarily possessed by other lawyers similarly situated, or from omissions to use reasonable care and diligence, or from the failure to exercise in good faith his or her best judgment in attending to the litigation undertaken on the client's behalf.
In my view, it is abundantly clear that Mr. Koziebrocki has established that there is no genuine issue for trial in respect to the allegations which Mr. Blackburn has made in respect to the legal services which he provided. When he cross-examined Mr. Blackburn, Mr. Epstein was able to narrow the allegations against Mr. Koziebrocki to the four which I have set out on p. 397 ante. As the authorities have held, I am entitled to assume that the plaintiff has "put his best foot forward" and that if this action were to go to trial, he would present no further evidence.
The allegations against Mr. Koziebrocki do not involve his falling below a standard of care in the services that he provided, and, therefore, do not constitute negligence. The only allegation which might be characterized as having any substance is that he failed to advance, in support of the application for judicial review of Judge Hogan's report and the application for leave to appeal to the Court of Appeal, that the Review Council was improperly constituted because Judge Lapkin, not Chief Judge Linden, presided over its hearing. Mr. Koziebrocki did not advance this submission because he believed that it would be rejected. He was correct. Whether viewed from the perspective of negligence or the exercise of judgment, this submission would not have been successful before either the Divisional Court, or the Court of Appeal, because what Mr. Levy did, or did not do, in representing Mr. Blackburn before the Review Council could have had no effect on the inquiry conducted by Judge Hogan. Therefore, it was totally irrelevant to the application for judicial review and the application for leave to appeal to the Court of Appeal.
With respect to the other three allegations, it is true that there is a conflict in the evidence of Mr. Koziebrocki and Mr. Blackburn. It was held in the Ungerman case, supra, that, generally, if there is an issue of credibility which is material, a trial will be required. In the Ungerman case, at p. 550, Morden A.C.J.O. said: "If a fact is not material, to an action, in the sense that the result of the proceeding does not turn on its existence or non-existence, then it cannot relate to a 'genuine issue for trial'" (emphasis added). In my view, even though there is a conflict in the evidence with respect to these allegations, none of the facts relating to the allegations is material to the action. This is because none of the allegations constitute negligence on the part of Mr. Koziebrocki. None of the allegations, therefore, constitute a cause of action. No evidence was presented of any damages sustained by Mr. Blackburn. It made no difference to the result of the application for judicial review whether Mr. Blackburn was present in the courtroom. It is correct that if Mr. Blackburn did not resign following the inquiry's recommendation that he be removed from office, he would be dismissed and lose the severance pay Mr. Koziebrocki was able to negotiate for him. While it is true that in appropriate circumstances an action will lie when a lawyer does not follow his or her client's instructions, even if Mr. Koziebrocki was acting contrary to Mr. Blackburn's instructions when he advised the press that Mr. Blackburn had resigned, this was true, and Mr. Blackburn has not been able to demonstrate that, as a result, he sustained any damages.
Therefore, Mr. Koziebrocki's motion for summary judgment must succeed, and the action against him will be dismissed.
Mr. Blackburn has made five allegations about the legal assistance provided by Mr. Levy. I have reviewed the evidence concerning these allegations in considerable detail because Mr. Epstein submitted that he had been successful, in his cross- examination of Mr. Blackburn, in causing him to recant what he had deposed to in his affidavit and, indeed, on his cross- examination. It was Mr. Epstein's submission that Mr. Blackburn's acknowledgement that he had written the notes which contain the strategy that was followed before the Review Council and the inquiry, put the lie to all of his other evidence, and, that, therefore there was no genuine issue for trial because Mr. Blackburn's credibility had been destroyed, and he would not be believed by the trial judge. The notes are reproduced on p. 306 ante.
Central to Mr. Blackburn's case against Mr. Levy, is his evidence that he did not speak the words to the complainants which led to the hearing before the Review Council, and that he had been misled by Mr. Levy to admit that he had done so and to apologize to the complainants at the hearing, and that he had been further misled by Mr. Levy to perpetuate this position in the agreed statement of facts which he signed for the purpose of Judge Hogan's inquiry. Having taken the hard look at the evidence which I am required to do by the authorities, in my view, in the context of the record in this case, the claim asserted by the plaintiff against Mr. Levy does not constitute a genuine issue for trial within the meaning of rule 20.04(2). Thus, Mr. Levy has satisfied the burden placed on him by the rule.
Although Mr. Blackburn admitted that he wrote the notes, he maintained over and over again that he did not know whether they represented the strategy which he and Mr. Levy agreed would be followed before the Review Council and the inquiry. He suggested that the notes may have been stolen from his office, which is an acknowledgement that they had been in his possession. The undisputed evidence clearly demonstrates that the strategy outlined in the notes was in fact followed. He made an admission of his wrongful behaviour to the Review Council and the inquiry, he apologized to the complainants and he attended the sexual harassment awareness course, which is the "training program" referred to in his notes. He provided no independent evidence that he had not spoken the words complained of, even though he claimed that he had witnesses to support this position. His own notes, representing what actually occurred, stand in sharp contrast to what he claims occurred -- that he had been misled by Mr. Levy into making an admission and an apology. As I concluded in respect to the defendant's evidence in Royal Bank v. Feldman, supra, considered in the context of all the evidence, Mr. Blackburn's evidence is so disingenuous as not to constitute a genuine issue for trial. As in Rogers Cable TV Ltd., supra, at best the issues raised by Mr. Blackburn are spurious.
In reaching the conclusion that Mr. Levy has demonstrated that Mr. Blackburn's allegations do not constitute a genuine issue for trial, I have proceeded on the assumption that if this action were to go to trial, Mr. Blackburn would present no further evidence. In this regard, I have taken the following into consideration. Mr. Blackburn produced no evidence of those persons whom he claims can corroborate his innocence. He has produced no evidence to support his allegation that his co- workers participated in a conspiracy to cause his dismissal. He has not produced any particulars of Judge Lapkin's alleged bias, nor any independent evidence of the bias. What, in fact, took place before the Review Council conformed with the recommendations which Mr. Levy made to Mr. Blackburn in his letter of January 28, 1993. Mr. Blackburn produced no evidence that Judge Lapkin influenced the result of the hearing before the Review Council. He produced no evidence that the fact that Mr. Levy continued to represent him before the inquiry resulted in the inquiry's recommendation that he be dismissed. He presented no evidence that Mr. Levy had prepared him to testify in his own defence before the Review Council, or the inquiry, or that he came to each hearing with defence witnesses prepared to present evidence to refute the allegations which had been made about his conduct. Mr. Blackburn produced no expert evidence that the defendants fell below the required standard of care. Finally, as submitted by Mr. Epstein, Mr. Blackburn failed to produce any evidence "to account for the amazing coincidence" that what took place before the Review Council conformed with what is contained in his written notes.
In my opinion, it is important to underscore the word "genuine" in the phrase "no genuine issue for trial". As I observed in Rogers Cable TV Ltd., at p. 29, this is in conformity with the principles discussed by Morden A.C.J.O. in the Ungerman case, supra, at pp. 549-52. The following passage from his reasons for judgment, at p. 552, has direct application to this motion: "As the first passage indicates, the proposition that an issue of credibility precludes the granting of summary judgment applies only when what is said to be an issue of credibility is a genuine issue of credibility" (emphasis added). In my view, although the plaintiff may have raised an issue of credibility, Mr. Epstein's cross-examination has demonstrated that it is far removed from constituting a genuine issue of credibility.
In conclusion, I wish to indicate that I am mindful of the role which a motions court performs in deciding a motion for summary judgment, as discussed by Morden A.C.J.O. in the Ungerman case, at p. 551, where he stated: "it is important to keep in mind that the court's function is not to resolve an issue of fact but to determine whether a genuine issue of fact exists". In taking the approach to this motion which I have, and in reaching the conclusion that the defendants have successfully demonstrated that there is no genuine issue for trial in respect to the claims alleged against them, I have paid particular attention to the following passage from the reasons for judgment of Morden A.C.J.O. at p. 552:
At pp. 56-521 to 56-522 the following appears in 6 Moore's Federal Practice, supra, with respect to whether an issue of credibility exists:
Judge Hutcheson's statement as to the test to be applied in determining whether the materials favourable to the opposing party present an issue of credibility will bear repetition:
To proceed to summary judgment it is not sufficient then that the judge may not credit testimony proffered on a tendered issue. It must appear that there is no substantial evidence on it, that is, either that the tendered evidence is in its nature too incredible to be accepted by reasonable minds, or that conceding its truth, it is without legal probative force. (Whitaker v. Coleman (1940), 115 F. 2d 305, 306)
The test has been applied and often quoted. Evidence, then, that is too incredible to be accepted by reasonable minds does not raise an issue of credibility. Conversely, if the evidence is such that a jury would not be at liberty to disbelieve it no issue of credibility is present. Or, stated differently, a summary judgment may be granted on evidence that would compel the direction of a verdict; and should be denied when a directed verdict would be improper.
Unlike the Ungerman case, I do not, with respect, consider this to be a case where I have accepted the evidence of one witness, where it is in conflict with the evidence of another witness. I have simply focused on whether the defendants have demonstrated that the plaintiff's claim against them does not constitute a genuine issue for trial.
Therefore, Mr. Levy's motion for summary judgment must succeed, and the action against him will be dismissed.
In the result, an order will issue granting the defendants' motion for summary judgment and dismissing the action against them. Counsel may make arrangements to make submissions with re spect to costs.