



COURT OF APPEAL FOR ONTARIO

CITATION: Zhang v. Shanfield, 2013 ONCA 537

DATE: 20130903

DOCKET: C56677

Sharpe, Epstein and Lauwers JJ.A.

BETWEEN

Yuli Zhang and Changchun Xing

Plaintiffs (Appellants)

and

Stephen Shanfield

Defendant (Respondent)

Yuli Zhang and Changchun Xing in person

Mason Greenaway for the respondent

Heard: August 26, 2013

On appeal from the judgment of Justice Richard C. Gates
    of the Superior Court of Justice, dated January 25, 2013.

ENDORSEMENT

[1]

The appellants appeal the dismissal of their action in negligence
    against the respondent solicitor who represented them with respect to a
    personal injury claim arising out of a motor vehicle accident. The matter was
    heard by way of summary judgment over several days and the motion judge
    delivered detailed reasons for judgment in which he canvassed the evidence and
    explained why, in his view, the appellants claims had no prospect of success
    and that summary judgment was appropriate.

[2]

We are not persuaded that the motion judge erred.

Xings Claim

[3]

With respect to the appellant Xing, there is no evidence the respondent
    was instructed to pursue a tort claim on Xings behalf. The respondent did
    advance an FLA claim that was settled by the successor lawyer. There is no
    evidence that Xing had a SABs claim or that the respondent was instructed to
    pursue any such claim.

[4]

It follows that the motion judge did not err in dismissing the appeal
    with respect to Xings claim.

Zhangs Claim

[5]

The appellant Zhang asserts claims for damages with respect to both her
    tort claim and to her SABs claims.

(a) Tort

[6]

We see no merit in the contention that by naming Xing as a co-plaintiff,
    the respondent solicitor somehow compromised Zhangs tort recovery. There was
    clear liability on the part of the hit-and-run driver that would allow Zhang to
    recover her full damages from the driver (for which her own insurer would be
    liable), so that even if Xings negligence contributed to the accident, Zhangs
    tort recovery would not have been affected.

[7]

The appellants agreed to the settlement of Zhangs tort claim
    recommended by the successor lawyer.

[8]

We agree with the motion judges conclusion that there is no basis in
    fact to support a claim against the respondent with respect to Zhangs tort
    claim.

(b) SABs

[9]

While the respondents counsel conceded that there was no evidence in
    the record that the respondent had ever given Zhang a full briefing on her
    possible entitlement to SABs, we are not persuaded that the motion judge erred
    in concluding that Zhang had suffered no loss with respect to her SABs claims.
    The evidence of medical expenses incurred by Zhang in China well before the
    respondent was retained was insufficient to establish a claim against him with
    respect to any loss for medical SABs.

[10]

Nor
    did the evidence substantiate a claim against the respondent with respect to attendant
    care, housekeeping and home maintenance SABs. Zhang met with her insurers
    representatives almost two years before she retained the respondent and made no
    mention of requiring or intending to seek attendant care benefits. If there
    were any such expenses, they were incurred in China before she returned to
    Canada and before she met with and retained the respondent.

[11]

With
    respect to non-earner benefits (NEBs), the record indicates that Zhang applied
    for income replacement benefits (IRBs) prior to retaining the respondent and
    thereby certified that she was earning income from employment before the time
    of the accident. She also filed a medical certificate confirming her
    eligibility for IRBs but failed to file the required supporting documentation
    from her employers. The SAB regulation disallowed a claim for NEBs where the
    claimant is qualified for IRBs. Had she pursued her claim for IRBs, her tort
    recovery would have been reduced. We agree, accordingly, with the motion judges
    conclusion that the evidence failed to establish any compensable claim in
    relation to the negligence alleged against the respondent with respect to the
    manner in which he dealt with Zhangs SABs claims.

[12]

Finally
    we observe that the motion judge pointed out that, as there has never been a
    refusal by the insurer to pay IRBs or NEBs, the limitation period has not
    commenced to prevent her from claiming those benefits now.

[13]

We
    conclude, accordingly, that the motion judge did not err in finding that there
    was no evidence led by the appellants that was capable of supporting a claim in
    damages against the respondent for the manner in which he dealt with the SABs
    claims.

Disposition

[14]

For
    these reasons the appeal is dismissed. The respondent is entitled to costs, which
    we fix at $5000 inclusive of disbursements and applicable taxes.

Robert J. Sharpe J.A.

Gloria Epstein J.A.

P. Lauwers J.A.


