



COURT OF APPEAL FOR ONTARIO

CITATION:
Broesky v. Lüst, 2012
    ONCA 701

DATE: 20121016

DOCKET: C53731

Goudge, Simmons and Juriansz JJ.A.

BETWEEN

Rosalyn Faith Broesky

Plaintiff (Appellant)

and

Arthur Lüst

Defendant (Respondent)

Rebecca Huang and Jeffrey Potter, for the appellant

Eric Williams and Ashlee Barber, for the respondent

Heard: October 12, 2012

On appeal from the judgment of Justice Jennifer Mackinnon
    of the Superior Court of Justice, dated January 17, 2011.

APPEAL BOOK ENDORSEMENT

[1]

The appellant raises two issues on this appeal.

[2]

First, she says the trial judge erred in finding that the respondent was
    not obliged to reduce to writing that he was not retained to act on the tort
    and accident benefit claims. We do not agree.

[3]

Given the basis on which this appeal proceeded it is clear that the
    trial judge found as a fact that the appellant, despite her health challenges,
    understood what she had and had not retained the respondent for. There was no
    basis in the evidence, given these facts, to extend the respondents duty of
    care to putting in writing what the appellant already understood, namely that
    she had not retained him for the tort and accident benefit claims.

[4]

Second, the appellant says that the trial judge erred in failing to
    decide whether the respondents duty of care extended to reviewing the
    applicable limitation periods with her.

[5]

Again, we do not agree. The trail judge found that the appellant had not
    established that the respondents duty to her extended to this and had called
    no expert evidence that would suggest otherwise. There is no basis for us to
    interfere with that finding. Moreover, the trial judge clearly found as a fact
    that the respondent had reviewed the limitation periods with her thereby
    satisfying any duty had one been found to exist.

[6]

In all the circumstances the appeal must be dismissed, with costs fixed
    at $6,000 in total in favour of the respondent.


