



COURT OF APPEAL FOR ONTARIO

CITATION: SMTCL Canada Inc. v. Master Tech Inc., 2017 ONCA
    744

DATE: 20170925

DOCKET: C63021

Doherty, LaForme and Miller JJ.A.

BETWEEN

SMTCL Canada Inc.

Plaintiff (Respondent)

and

Master Tech Inc.

Defendant (
Appellant
)

Fariborz Mirzaee Tavana, for the appellant

Carlin McGoogan, for the respondent

Jeff Van Bakel, for the intervener, Wajeb Assaf

Heard:  September 22, 2017

On appeal from the judgment of Justice Frederick Myers,
    of the Superior Court of Justice, dated November 8, 2016.

APPEAL BOOK ENDORSEMENT

[1]

We see no error in the motion judges reasons.  He explained how he
    arrived at his assessment of the loss suffered by the respondent (para. 5).  We
    see no error in that assessment.

[2]

The main issue raised on appeal relates to the alleged negligence and
    dishonesty of the appellants lawyer.

[3]

This court has recognized that claims of solicitors negligence raised
    in the context of an appeal from an order in the litigation in which the lawyer
    represented one of the parties can provide a basis for setting aside that order
    only in the rarest of cases:
W.
(
D.) v. White
(2004), 189
    O.A.C. 256, at para. 55.

[4]

The only possible basis for accepting the submission in this case would
    be collusion between the lawyer and the respondent.  There is nothing in the
    material before us offering an air of reality to that claim.

[5]

This is not the appropriate forum in which to raise the claim against
    the solicitor.  If those claims have any viability, they can be fully
    vindicated in a lawsuit brought against the lawyer.

[6]

We, of course, intend no comment on the merit, if any, of the
    allegations made against the lawyer.  It should be noted, however, that he
    strongly denies those allegations.

[7]

The appeal is dismissed.

[8]

Costs are awarded to the respondent on a partial indemnity basis.  Costs
    to the respondent in the amount of $13,000, all in.  We are told the
    appellant has posted $7,500 as security for costs in this court.  This amount should
    be returned to the respondents lawyer on trial as partial payment on the
    costs.

[9]

We are also satisfied that the intervener should have his costs on a
    partial indemnity basis.  We fix those costs at $6,000, all in.


