



COURT OF APPEAL FOR ONTARIO

CITATION: Goldentuler v. Simmons Dasilva
    LLP, 2021 ONCA 219

DATE: 20210407

DOCKET: C68561

Juriansz, Nordheimer and Jamal
    JJ.A.

BETWEEN

Edward Goldentuler

Plaintiff (Respondent)

and

Simmons Dasilva LLP and Ray
    Thapar

Defendants (Appellants)

Sean Dewart and Adrienne Lei, for the
    appellants

Edward Goldentuler, in person

Heard: April 6, 2021 by
    videoconference

On appeal from the order of Justice Jill
    Cameron of the Superior Court of Justice, dated July 14, 2020 with reasons
    reported at 2020 ONSC 4315.

REASONS FOR DECISION


[1]

The defendants appeal from the order of the
    motion judge that dismissed their motion, pursuant to r. 21.01(3)(b) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, to dismiss this action on the
    basis that the plaintiff is without legal capacity to commence or continue the
    action. At the conclusion of the hearing, we allowed the appeal with reasons to
    follow. We now provide our reasons.

[2]

The essential background facts are that the respondent's
    late brother was a lawyer in private practice. Before his death, he commenced
    an action against a group of former employees who had removed 120 client files
    from his office in the dead of night and deleted his electronic records
    concerning the stolen files.

[3]

The respondent, who is also a lawyer, obtained
    an order to continue the action in the name of his late brother's Estate. The
    claim proceeded to an uncontested damages assessment and the Estate obtained
    judgment for $318,174.55.

[4]

Thereafter, purportedly in his capacity as Estate
    trustee, the respondent retained the appellants to pursue an appeal in this
    Court. The appeal was successful and the damages award in favour of the Estate
    was increased to $901,791.71.
[1]

[5]

The appellants were successful in having the
    judgment satisfied, but a dispute arose concerning their fees for the appeal,
    following which the respondent commenced this solicitor's negligence action in
    his own name and in his personal capacity. He seeks $2 million in damages,
    alleging that the appellants fell below the standard of care in conducting the
    appeal.

[6]

The appellants brought a motion to dismiss the
    action on the grounds that the respondent does not have legal capacity to sue
    them, as the appellants had acted for the Estate, not the respondent personally.
    Further, the appellants submitted that it was only the Estate that could have
    suffered any damages from the alleged negligence, not the respondent
    personally.

[7]

In response to the motion, the respondent alleged
    for the first time that the Estate's chose-in-action against the ex-employees
    had been assigned to him, before the Estate retained the appellants, as part of
    his purchase of his late brothers law firm from the Estate.

[8]

The motion judge dismissed the motion to dismiss
    the action. In doing so, the motion judge found as a fact that the appellants
    were aware that the respondent had purchased the law firm from his late
    brothers wife, who was the executor of the Estate. A copy of the agreement had
    been sent to the appellants lawyers by the respondent on February 7, 2020 in
    response to their motion to dismiss. The motion judge then stated the core
    issue she was to determine. She said, at para. 29:

However, the issue is not whether the
    defendants knew about the purchase of the law firm. The issue is who retained
    the defendants on the appeal, therefore who was owed a duty of care by them and
    who would be affected by the outcome of the appeal.

[9]

The motion judge concluded that the respondent
    had capacity to bring the action. She based this conclusion on two facts: (i)
    the account for legal fees was directed to the respondent and (ii) the
    respondent was the only party who could have been affected by the outcome of
    the appeal since he had purchased the law firm.

[10]

In our view, the motion judge made a palpable
    and overriding error in her determination of the motion. She did so by not
    addressing the crucial question that she herself had stated, that is, who
    retained the appellants? The answer to that question is clear, it was the
    Estate. It was the Estate in whose name the original litigation was continued,
    it was the Estate that was the party on the appeal, and it was the Estate for
    whose benefit the damage award was increased. On that latter point, we note
    that it was the Estate to whom payment was made on the ultimate judgment and it
    was the Estate on whose behalf the retainer agreement with the appellants was
    signed.

[11]

We would add that nothing of consequence turns
    on the fact that the account for legal fees was directed to the respondent. He was
    the individual who provided instructions to the appellants on behalf of the
    Estate. The addressee of the account does not change on whose behalf the
    appellants were retained. We also note that the account was expressly stated to
    be for fees relating to the matter of Estate of Henry Goldentuler v. Robert
    Crosbie et al.

[12]

In light of our conclusion, it is unnecessary to
    address the arguments regarding the possible application of the
Conveyancing
    and Law of Property Act
, R.S.O. 1990, c. C.34 to this case. However, the
    fact that we do not need to address those arguments should not be taken as meaning
    that we agree with the position taken by the motion judge on the issue, or on
    her interpretation of the Act.

[13]

The respondent does not have a personal claim
    arising from the retainer of the appellants given the party on whose behalf the
    appeal was brought and on whose behalf the appellants were retained. He does
    not, therefore, have capacity to bring the solicitors negligence claim.

[14]

In the event of this result, in his factum, the
    respondent asked that this court amend the title of proceeding to add the
    proper plaintiff. It is simply too late for the respondent to seek such relief.
    Among other reasons, we do not have any indication whether the Estate would be
    prepared to be added as a plaintiff in this action. The consent of the Estate
    would be necessary for that purpose. It also does not address what appears to
    be some potential difficulties with the original action.

[15]

It is for these reasons that the appeal was
    allowed and the order below set aside. In its place, the motion is granted, and
    the action is dismissed. The appellants are entitled to their costs of the
    appeal in the agreed amount of $9,000 inclusive of disbursements and HST. As
    also agreed, the costs award below is reversed so that it is now in favour of
    the appellants.

R.G. Juriansz J.A.

I.V.B. Nordheimer J.A.

M. Jamal J.A.





[1]

Goldentuler Estate v. Crosbie
, 2017 ONCA 591


