



COURT OF APPEAL FOR ONTARIO

CITATION:
Biron v. Aviva Insurance Company, 2014 ONCA 558

DATE: 20140721

DOCKET: C58173

Hoy A.C.J.O., Gillese and Lauwers JJ.A.

BETWEEN

Cristian Biron

Appellant

and

Aviva Insurance Company and Sylvia M. Robin

Respondents

Cristian Biron, appearing in person

Kieran C. Dickson, for the respondents

Heard: July 18, 2014

On appeal from the order of Justice Jane A. Milanetti of
    the Superior Court of Justice, dated December 12, 2013.

ENDORSEMENT

[1]

The motion judge dismissed the appellants claim on the grounds that it
    is an abuse of process, and that it discloses no cause of action. The appeal is
    from that decision and the motion judges costs award.

[2]

The appellant was involved in a motor vehicle accident with a person
    insured by the respondent, Aviva. Aviva appointed the respondent, Sylvia M.
    Robin to represent its insured at the small claims court action brought by the
    appellant to recover damages of $550. The small claims court action was
    dismissed.

[3]

The appellant took great offence at the trial tactics taken by Ms.
    Robin, and sued her for, as the motion judge expressed it:

a number of intentional torts, including breach of duty,
    non-compliance with the rules of the Small Claims Court, intrusion of privacy,
    infliction of mental distress. These are serious allegations without the
    pleading of material facts.

[4]

The thrust of Mr. Birons complaint is that Ms. Robin gave notice of an
    intention to rely on information that he claims was embarrassing and
    irrelevant. It turned out that the information and the document containing it
    were not relied on by the defence at the small claims court trial, but he
    claims that he was harmed nonetheless and that the mere prospect prevented him from
    pursuing his claim effectively.

[5]

The motion judge found that this action amounts to an impermissible
    collateral attack on a decision of the small claims court. She observed that if
    the appellant had concerns about breaches of the small claims court rules, or
    the admissibility of documents, then he should have raised those issues in that
    court. (He conceded in argument that he had a copy of the offending report well
    before the small claims court hearing.)

[6]

The motion judge held that the appellants claim was blocked by the legal
    principle that, in litigation, opposing counsel owes no duty of care to the
    opposing party. This proposition is well known and was expressed by
    Karakatsanis J., as she then was, in
Admassu v. Pantel
, 2009 CarswellOnt
    4047, at para. 5:

I am satisfied that it is plain and obvious that the pleading
    discloses no cause of action. Opposing counsel owes no general duty of care to
    the opposite party. As the court of appeal held in
Diamond Drilling
    Contracting Ltd. v. MacDearmid
, CanLII 24444, at para. 3, to hold
    otherwise would place solicitors in an untenable conflict between their duty to
    their client and their need to protect themselves against their clients
    adversary.

[7]

In view of what the motion judge considered to be the appellants abuse
    of process and his serious allegations against a lawyer who was doing her job
    advocating on behalf of her client, she fixed costs in the amount of $5,000.00,
    on a partial indemnity basis.

[8]

We see no error in the motion judges approach or in her conclusion that
    the action was an abuse of process, an impermissible collateral attack on the
    decision of another court, and disclosed no cause of action. We agree with her
    that Ms. Robin owed no duty to the appellant as a matter of law, and dismiss
    the appeal on the merits.

[9]

No issue of principle is engaged by the motion judges costs award,
    which is an exercise of her discretion. Leave to appeal costs is denied.

[10]

Costs
    on the appeal are set at $3,500.00, all inclusive.

Alexandra Hoy A.C.J.O.

E.E. Gillese J.A.

P. Lauwers J.A.


