



COURT OF APPEAL FOR ONTARIO

CITATION: Hibbert v. McGoogan, 2018 ONCA 310

DATE: 20180326

DOCKET: C64127

Doherty, Rouleau and Miller JJ.A.

BETWEEN

Garfield Anthony Hibbert

Appellant

and

Carlin McGoogan

Respondent

Vivek David, for the appellant

Michael Kestenberg, for the respondent

Heard: March 22, 2018

On appeal from the judgment of Justice Patrick Monahan of
    the Superior Court of Justice, dated July 12, 2017, with reasons reported at 2017
    ONSC 4292.

REASONS FOR DECISION

[1]

The appeal was dismissed with reasons to follow. These are those
    reasons.

[2]

The appellant appeals the dismissal of his claim for negligence against
    the respondent solicitor. The appellant had commenced several actions in
    Superior Court and Small Claims Court, and later retained the respondent to
    assume carriage of three of the actions. The appellant alleges that the
    respondents errors caused two of the actions to be dismissed, and prevented
    the execution of the judgment ultimately obtained in one of those actions. He
    also alleges that a third action was not prosecuted diligently, resulting in a
    judgment that could not be executed as the defendant had filed for bankruptcy.

[3]

On the summary judgment motion, the judge found that the appellant had
    failed to adduce sufficient evidence in support of the claims of negligence,
    and in any event failed to establish any resulting loss.

[4]

The appellant advances three grounds of appeal. First, he argues that
    the motion judge erred in dismissing the court reporter and proceeding with no
    court reporter present.

[5]

We see no merit in this ground. The summary judgment motion was argued
    based on a paper record without any oral evidence being adduced. A court
    reporter was not required.

[6]

The second ground put forward is that the motion judge ought to have
    referred the matter to trial because, in the appellants submission, there were
    facts in dispute requiring credibility findings.

[7]

We disagree. As found by the motion judge, the record was sufficient to
    decide the matter. The basis of his decision was that the appellant simply
    failed to advance adequate evidence supporting his allegations of negligence or
    loss caused by that alleged negligence. This contrasted with the respondents
    comprehensive materials showing that the dismissals and delays were not caused
    by the errors he is alleged to have committed. In fact, with respect to the
    third action, the motion judge found that the delay was caused by the
    appellants failure to provide timely instructions and the required retainer.

[8]

The third ground advanced is that the motion judge made factual errors
    and applied the wrong standard of proof. Among the errors alleged, the
    appellant submits that the motion judge erred in refusing to consider the
    similar fact and circumstantial evidence tendered. In the appellants
    submission, this evidence demonstrated a pattern of court documents being sent
    to the wrong address, such that the only reasonable inference is that the
    respondent provided the court with the wrong address.

[9]

We disagree with this interpretation of the motion judges reasons. The
    motion judge considered the similar fact evidence. He simply chose not to draw
    the inference proposed by the appellant, preferring the evidence of the
    respondent to the effect that the correct information had been provided to the
    court. This finding was available to him on the record.

[10]

The
    appellant also argues that the motion judge erred in finding that the appellant
    had not proven that he suffered any losses as a result of the alleged
    negligence.

[11]

With
    respect to the first action, the appellant maintains that the motion judge improperly
    speculated that he may have been awarded costs for having successfully set
    aside its dismissal, offsetting any loss he may have suffered. We reject this argument.
    It is the absence of any evidence of loss that supported the motion judges
    disposition of the appellants claim with respect to the first action. Any
    comment allegedly made by the motion judge during the hearing with respect to
    the possibility of costs was likely simply an explanation as to why losses must
    be proven, rather than assumed, in order to support a claim in negligence.

[12]

As
    for the second action, the appellant maintains that the motion judge relied on
    the erroneous proposition that the preparation of a second identical claim was
    a prudent response to the original claim having been dismissed. The second
    identical claim was pursued by the appellant and judgment of $9,000 plus costs was
    obtained. In his submission, he is unable to recover on this judgment as
    pursuing a second identical claim in these circumstances is an abuse of process.
    The respondents preparation of this claim was therefore negligent and resulted
    in damages.

[13]

Counsel
    for the respondent effectively conceded, and we agree, that the motion judge
    erred in describing the issuance of a second identical claim as a prudent
    measure. We nonetheless agree with the motion judge that the appellant had not
    provided evidence that he cannot execute on the judgment or that he has otherwise
    suffered a loss as a result of the alleged negligence.

[14]

The
    appellants claim with respect to the third action was similarly deficient. As
    conceded by the appellants counsel, there is no evidence suggesting that, even
    if the action had been pursued with diligence, judgment could have been
    obtained and recovery effected before the bankruptcy of the defendant in that
    action.

[15]

As
    for the burden of proof, it is well-established that on a motion for summary
    judgment, the responding party is required to put his best foot forward and
    show that there is a genuine issue for trial. Even assuming that there was some
    basis for finding that the respondent was negligent in handling one or more of
    the appellants files, the appellant failed to meet that onus, and in
    particular failed to produce any evidence that a loss was incurred.

[16]

For
    these reasons, the appeal is dismissed. Costs to the respondent fixed at $7,500
    inclusive of disbursements and applicable taxes.

Doherty J.A.

Paul Rouleau J.A.

B.W. Miller J.A.


