





CITATION: Harris v. Levine, 2011
      ONCA 530

DATE:  20110720


DOCKET: C53216


COURT OF APPEAL FOR ONTARIO


Doherty, Laskin and Simmons JJ.A.


BETWEEN


Mark Harris and Fiona Harris


Appellants (Plaintiffs)


and


Lorne Levine


Respondent (Defendant)


Joseph Markin, for the appellants (plaintiffs)


Louis Sokolov, for the respondent (defendant)


Heard:  July 14, 2011


On appeal from the decision of Justice E. Eva Frank of the Superior
          Court of Justice dated October 14, 2010.


APPEAL BOOK ENDORSEMENT

[1]

With respect to the motion judge, we think that it is artificial to
    distinguish between the trial phase and the sentencing phase of the criminal
    process when addressing allegations of solicitors negligence and tolling of
    the limitation period.  The appellants alleged negligence in the conduct of the
    defence relating to both the pre and post-verdict phases.  The limitation
    period did not begin to run until the trial was complete and the sentence
    imposed.
[2]

The respondent also raises an abuse of process argument based on the
    appellants convictions which were offered on appeal.  There may be merit to
    that argument and, if so, it can be advanced at trial.
[3]

The appeal is allowed.  Costs to the appellants fixed at $1,500 in this
    court and $1,500 in the court below, inclusive of disbursements and all
    applicable taxes.