





CITATION:
DSouza v. Linton, 2012
          ONCA 11



DATE: 20120109



DOCKET: C54051



COURT OF APPEAL FOR ONTARIO



Sharpe, Blair and Rouleau JJ.A.



BETWEEN



John Joseph aka John DSouza and Peter DGama



Plaintiffs/Appellants



and



Ritchie James
          Linton, Robert Jagielski, Krystyna Woldanska, Isabella Woldanska, Agnieszka
          Woldanska, Karolina Gill, Bobby Mukhtiar Gill,

Polish Credit
          Union, Royal Bank of Canada, A. Farber & Partners Inc.,

The Law Society of Upper Canada
          and  The Superintendent of Bankruptcy



Defendants/Respondents



Joseph Markin, for the appellants



Adrienne Lei, for the respondents



Heard & released orally:
January 5, 2012



On appeal from the judgment of Justice Andra M. Pollak of the
          Superior Court of Justice dated June 15, 2011.



ENDORSEMENT



[1]

The appellants argue that the motion judge erred in striking out the
    statement of claim under Rule 21 as against the Law Society of Upper Canada. 
    The appellants claim relates to the actions of lawyers who acted for other
    parties.  They argue that the Law Society of Upper Canada is liable in
    negligence for failing to take appropriate action against those lawyers.  There
    is nothing in the statement of claim or the reply to suggest that the
    appellants had any contact with the Law Society of Upper Canada.  They assert the
    claim as members of the public.

[2]

In our view, the claim is precluded by the decision of the Supreme Court
    of Canada in
Edwards v. Law Society of Upper Canada
, [2001] 3 S.C.R.
    562.

[3]

We do not accept the submission that the later decision of the Supreme
    Court in
Finney v. Barreau du Québec
, 2004 SCC 36 assists the
    appellants.  The decision in
Finney
turned on the fact that the
    plaintiff had filed several complaints against the solicitor and that the
    Barreau dealt with those specific complaints in a seriously careless and
    reckless fashion.  The required element of proximity that arose in
Finney
because of the direct contact between the plaintiff and the Barreau is absent
    in this case.

[4]

There is nothing in the record or the submissions made before us to suggest
    that the proximity issue could be rectified by amending the pleading.  Accordingly,
    this is not a case to grant leave to amend.

[5]

For these reasons, the appeal is dismissed.  Costs to the respondent
    fixed at $4,445.77 inclusive of disbursements and HST.

Robert J. Sharpe J.A.

R.A.
    Blair J.A.

Paul
    Rouleau J.A.


