



COURT OF APPEAL FOR ONTARIO

CITATION: Mitchinson v. Baker, 2015 ONCA 623

DATE: 20150917

DOCKET: C59535

Gillese, Pepall and Benotto JJ.A.

BETWEEN

Elisabeth Eveline Mitchinson and Timothy G.
    Mitchinson

Plaintiffs (Appellants)

and

David Baker and Lawyers Professional Indemnity
    Company

Defendants (Respondents)

Elisabeth Mitchinson and Timothy Mitchinson, acting in
    person

Adam J. Huff, for the respondent Lawyers Professional
    Indemnity Company

Louis C. Sokolov and Krishana Persaud, for the
    respondent David Baker

Heard: September 9, 2015

On appeal from the order of Justice James A. Ramsay of
    the Superior Court of Justice, dated September 23, 2014.

By the
    Court
:

OVERVIEW

[1]

David Baker (the respondent) represented Elisabeth Mitchinson in a
    human rights complaint that she brought relating to the termination of her
    employment. He settled the complaint on terms that were favourable to Ms.
    Mitchinson. Ms. Mitchinson, however, was unhappy with the respondents fee,
    which was more than the estimate that he had given to her. As a result, she
    fired him before the settlement was finalized and then took steps to have his
    account assessed.  In the following two years, Ms. Mitchinson and her husband
    (the appellants) commenced a number of proceedings relating to the
    respondents account.

[2]

The basis for the action which gives rise to this appeal is the
    appellants allegation that the respondent agreed to cap his fee at $30,000 but
    subsequently charged Ms. Mitchinson more than that amount. The defendants in
    this proceeding are the respondent and the Lawyers Professional Indemnity
    Company (LPIC).

[3]

LPIC brought a motion to strike the statement of claim against it on the
    basis that it disclosed no reasonable cause of action.

[4]

The respondent moved to have the action dismissed as against him on the
    basis that it was frivolous, vexatious, and an abuse of process of the court.

[5]

The motions judge granted both motions.

[6]

The appellants appeal.

[7]

For the reasons that follow, we see no basis for interfering with the
    decision below.

ANALYSIS

(1)


LPIC

[8]

In their claim against LPIC, the appellants asserted that LPIC was aware
    that the respondent had committed fraudulent misrepresentation when he mis-estimated
    his legal fees but, nonetheless, LPIC chose to represent the respondent in the
    various legal proceedings which they had commenced. Thus, the appellants alleged,
    LPIC was an accessory after the fact to the respondents alleged fraudulent
    misrepresentation.

[9]

The motions judge correctly found that no duty of care exists between
    an insurer and a party adverse in interest to its insured and that no action
    lies against the lawyers acting for ones adversary in litigation. His reasons
    also explain why the allegations in the appellants statement of claim did not
    disclose a reasonable cause of action in respect of conspiracy, intentional
    infliction of mental distress, abuse of process, or accessory after the fact. We
    see no error in the motions judges reasons or result in respect of these
    various alleged causes of action.

[10]

The
    appellants also submitted that the motions judge improperly considered the
    evidence when he decided the LPIC motion.  We do not agree.

[11]

Under the heading Pleadings Disclosing no Reasonable
    Cause of Action, at page 8 of his reasons, the motions judge stated: This
    motion is decided on the pleadings alone.  A review of the motions judges
    reasons show that he did, indeed, decide LPICs motion based only on the
    pleadings. For example, when dealing with the appellants submission that LPIC
    was liable on the basis of conspiracy, the motions judge noted that conspiracy
    requires an intention to cause harm to a person and that no such intention was
    pleaded or could be inferred from the acts pleaded.

(2)


The Respondent

[12]

The
    appellants are correct that the motions judge considered evidence when he decided
    the respondents motion. However, the motions judge made no error in doing so, given
    that the respondents motion was brought under rules 21.01(3)(d) and 25.11 of
    the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194.

[13]

The
    appellants submit that the motions judge used the wrong test when deciding
    whether their action was an abuse of process. They rely on
Metrick v. Deeb
,
    2003 CanLII 804 (ON CA) for this submission.

[14]

The
    legal test set out in
Metrick
does not apply to the respondents
    motion.  The test articulated in
Metrick
is for the tort of abuse of
    process.  The respondents motion is based not on the
tort
of abuse of
    process but on the
doctrine
of abuse of process.  Those two matters are
    fundamentally different in law and each has its own legal requirements.

[15]

The
    Supreme Court of Canada decision in
Toronto (City) v. C.U.P.E., Local 79
, 2003 SCC 63,

[2003] 3 S.C.R. 77,
    at paras. 35-53, explains that the doctrine of abuse of process is
    discretionary and not confined to set categories. The general purpose of the
    doctrine is to bar proceedings that are inconsistent with public policy
    considerations such as finality, judicial economy, consistency of results, and
    the integrity of the justice system. The motions judge was applying these
    principles when he found, at page 6 of his reasons, that this action, as against
    the respondent, was an abuse of process.  He found that the action had been
    brought not to vindicate a wrong suffered but to provide leverage in another
    proceeding: the appellants application for assessment of the respondents
    account.

[16]

The
    motions judge also found that the allegation of fraudulent misrepresentation
    could not succeed because, among other things, an estimate of fees does not
    amount to a representation of fact or a promise and no reasonable person could
    find that the respondent intended to mislead when he gave an estimate of his fees.
    We do not see an error in this determination. In reaching this conclusion, it
    is important to recognize two things.  First, the motions judges determination
    that the allegation of fraudulent misrepresentation could not succeed was made
    as part of the respondents abuse of process motion.  Consequently, as
    previously explained, the motions judge was entitled to consider evidence in
    making that determination.  Second, and in any event, the appellants pleadings
    acknowledge that the quoted fee was an estimate only.

[17]

The
    appellants also submitted that the motions judge erred in his treatment of
    their request to admit.  The request to admit was not part of the record before
    us and, therefore, cannot properly be considered on this appeal. In any event,
    however, LPIC responded to the request to admit and denied the allegations, and
    the respondent filed his affidavit in response to the request to admit, which affidavit
    was effectively a denial.

[18]

Finally,
    we do not accept the appellants claim that the motions judge was biased nor
    did the record reflect any basis for a reasonable apprehension of bias. A
    review of the transcript shows that the motions judges interventions 
    including his responses such as enough, enough, enough, enough and [y]oure
    not helping yourself by saying that  were aimed at controlling the court
    process and helping the parties to focus on matters of relevance to the
    motions.  They do not leave the impression that the motions judge lacked an
    impartial mind when deciding the motions.

DISPOSITION

[19]

Accordingly,
    the appeal is dismissed with costs to the respondent and to LPIC fixed at
    $6,500 and $3,500 respectively.

Released: September 17, 2015 (E.E.G.)

E.E. Gillese
    J.A.

S.E. Pepall J.A.

M.L. Benotto J.A.


