



COURT OF APPEAL FOR ONTARIO

CITATION: Formosa v. Persaud, 2020 ONCA 368

DATE: 20200611

DOCKET: C67456

Pepall, Hourigan and Roberts
    JJ.A.

BETWEEN

John Formosa and Steffen Nielsen

Plaintiffs (Appellants)

and

Dorian Persaud and
Gardiner Roberts LLP

Defendants (Respondent)

Julian Binavince, for the appellants

Michael R. Kestenberg and David S.
    Lipkus, for the respondent, Gardiner Roberts LLP

Heard: In Writing

On appeal from the judgment of Justice Lorne
    Sossin of the Superior Court of Justice, dated August 22, 2019, with reasons
    reported at 2019 ONSC 4860.

REASONS FOR DECISION


[1]

The appellants appeal from the judgment of Sossin J., dated August 22,
    2019, in which he granted summary judgment dismissing the appellants action
    against their former counsel, Dorian Persaud and Gardiner Roberts LLP. The
    appellants only appeal the dismissal of their action against Gardiner Roberts
    LLP (GR).

[2]

The appellants were former managers of TSI International Group (TIG). TIG
    brought proceedings against the appellants alleging that they had stolen
    confidential and proprietary information. TIG also brought a motion seeking injunctive
    relief. Mr. Persaud acted for the appellants.

[3]

TIG was successful on the motion and the motion judge, Ricchetti J.,
    described the appellants conduct as reprehensible and outrageous, stating that
    it was difficult to ascertain what, if any, defence could possibly succeed.

[4]

The appellants terminated Mr. Persauds retainer and hired GR to act for
    them instead. The retainer with GR lasted roughly 22 months. During that time,
    GR prepared the appellants statement of defence and counterclaim. In addition,
    GR represented the appellants in their unsuccessful response to TIGs motion to
    strike their pleading, in filing a motion for leave to appeal that order, and
    on an unsuccessful motion seeking compliance with the injunctive relief that
    had been granted against them.

[5]

Ultimately the action with TIG was settled with the assistance of new
    counsel. The appellants then commenced this action against Mr. Persaud and GR
    for breach of contract and solicitors negligence. Mr. Persaud and GR brought a
    motion for summary judgment dismissing the appellants action.

[6]

The motion judge, Sossin J., found that each of the steps GR took was
    communicated to the appellants, considered by them, and resulted in
    instructions to take a certain course of action. The motion judge also found
    that the appellants knew the risks, were advised of their rights, and were
    active participants in the development of the litigation materials and
    strategy. Moreover, the motion judge found that GR did not cause the
    appellants damages, to the extent there were any. He concluded that GR was not
    professionally negligent.

[7]

In their factum on appeal, the appellants state that they commenced the
    action against GR based on errors in judgment, failure to properly advise them
    so they could make informed decisions, and failure to properly consider costs.

[8]

The motion judge addressed these claims and found against the appellants.

[9]

On appeal, the appellants advance numerous arguments, none of which are
    meritorious.

[10]

The
    motion judge applied the correct test for a summary judgment motion and did not
    reverse the burden. He correctly noted that GR, as the moving party, had the
    initial burden to establish there was no genuine issue requiring a trial. He
    was satisfied that this burden had been met based on the record before him, which
    included affidavits filed by two of GRs lawyers
that
    addressed the claims against them
. In the absence of any expert report
    from either party, he relied on the record to determine that there was no
    professional negligence. We see no error in that analysis.
See
    also
McPeake v. Cadesky
, 2018 ONCA 554.

[11]

The
    appellants complain that GR made errors in judgment. However, as stated by McLachlin
    C.J. in
Hill v. Hamilton-Wentworth Regional Municipal
    Police
, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 73, the law of
    negligence accepts that professionals may make minor errors or errors in
    judgment that cause unfortunate results, without breaching the standard of
    care. Here, the motion judge found that the appellants were advised of the
    risks in litigation generally and in the TIG action specifically. His findings
    were fully supported by the record. Moreover, there is no dispute that the
    litigation strategy was to be aggressive with a view to motivating TIG to
    settle. We are fully satisfied of the merits of the motion judges findings.

[12]

There
    is no basis for the appellants argument that the reasons were inadequate. The
    reasoning and the route to the dismissal of the appellants claim are
    abundantly clear.

[13]

In
    light of our decision on the merits, there is no need to consider the
    additional basis of absence of any loss, relied upon by the motion judge.

[14]

For these reasons, the appeal is dismissed. If the parties are
    unable to agree on costs of the appeal, they may each make brief written
    submissions, not to exceed three pages in length.

S.E. Pepall
    J.A.

C.W. Hourigan
    J.A.

L.B. Roberts
    J.A.


