



COURT OF APPEAL FOR ONTARIO

CITATION: Inspektor v. Solmon, 2018 ONCA 796

DATE: 20181002

DOCKET: C65261

Simmons, Miller and Fairburn JJ.A.

BETWEEN

Lynette C. Inspektor and
    Eric R. Inspektor

Plaintiffs (Appellants)

and

Melvyn L. Solmon

Defendant (Respondent)

Eric R. Inspektor, acting in person

Ian McKellar, for the respondent

Heard: September 27, 2018

On appeal from the order
    of Justice Edward M. Morgan of the Superior Court of Justice, dated March 14,
    2018, with reasons reported at 2018 ONSC 1743.

REASONS FOR DECISION

[1]

The appellants claim that the respondent was
    professionally negligent in failing to protect their interests in the negotiation
    of the settlement of an action brought against them. They also maintain the
    respondent failed to account for funds paid towards their legal bill and misappropriated
    other funds secured by a mortgage, and that he consequently owes them money.

[2]

The respondent brought a motion for summary judgment
    to dismiss the appellants action. T
he
    motion judge observed that the appellants had really put no foot forward at
    all on the motion.


Rather, the record demonstrated that the appellants were fully
    informed of the terms of the settlement agreement, that they agreed to those
    terms, and that the terms actually inured to their benefit.  Moreover, there was
    no evidence to suggest that the respondents billings were inappropriate or
    excessive. The motion judge
dismissed the appellants action on the basis
    that there was no genuine issue for trial.

[3]

This is an appeal from the order dismissing the claim. The
appellants raise three grounds of appeal.

[4]

First, the appellants argue that the motion
    judge erred by mischaracterizing the allegations in their statement of claim.
    They say that the motion judge mischaracterized their complaint as being about
    an improvident settlement. They maintain that their complaint is actually about
    the respondents failure to negotiate a non-disparagement clause. We reject
    this submission.

[5]

Although the motion judge characterized the
    appellants complaint as broader than what is now suggested, a characterization
    that is supported by the allegations in the statement of claim, the motion
    judge specifically addressed the issue raised on appeal. He simply rejected the
    allegation made. In that regard, the motion judge noted that correspondence in
    the record showed that the respondent advised the appellants that a
    non-disparagement clause would not be agreed to by the plaintiffs in the
    predicate action, but that the settlement agreement was still an advantageous
    one and that this was acknowledged by the appellants.

[6]

The appellants also argue that the motion judge misconstrued
    their position regarding the respondents billings. The appellants say that the
    motion judge erred in characterizing their complaint as the respondent charging
    them too much for services rendered. Rather, the appellants say that their
    complaint is that the respondent owed them money arising from what they allege
    was a misappropriation of $150,000 from a mortgage given to his firm to secure
    specific legal fees.

[7]

Although we should not be taken as agreeing, in
    any way, that the respondent mishandled any of the appellants money, as a
    practical matter, nothing turns on this issue. The fact is that Mr. Inspektor
    signed a statutory declaration, acknowledging that he owed the respondent an
    amount of money that far exceeds the $150,000 claim.

[8]

In any event, we disagree that the motion judge
    mischaracterized the issue as one relating to the amount of fees owed. Read
    contextually, the statement of claim shows that the appellants allege that the
    respondent charged too much for services rendered. Moreover, the appellants
    factum in this court continues to allege that the respondent charged them too
    much. The motion judge accurately summarized their complaint and rejected it.
    We would not interfere.

[9]

As for the appellants argument that the
    respondent should not have been permitted to address certain facts in his affidavit
    filed in response to their claim, we disagree. The appellants alleged serious
    misconduct on the part of the respondent and it was open to him to address the
    issues raised in order to defend against the allegations made.

[10]

Second, the appellants maintain that the motion
    judge failed to review and give sufficient weight to the documentary evidence
    they filed.
The appellant alleges in particular that the motion judge
    failed to give effect to documentary evidence relating to fees charged by and
    monies paid to the respondent. It
was unnecessary for the
    motion judge to review the entire record before him in his reasons. The failure
    to advert to some evidence does not mean that it was not considered. Read
    contextually, the reasons make clear that the motion judge had regard to the
    whole record and relied on documents that were material to the issues before
    him. In any event,
based on our review of the record, the referenced
    documents do not contradict the documentary evidence provided by the respondent
    concerning fees charged, fees reimbursed by the insurer or monies acknowledged
    by the respondent as having been paid.
We would not interfere
    on that basis.

[11]

Finally, the appellants claim that the motion
    judge erred in concluding that there was no genuine issue for trial. We find
    that the motion judge understood the test for granting summary judgment and
    correctly reviewed the law on this point. It was open to the motion judge to
    conclude that a trial was not required to arrive upon a just and fair
    determination of the matter. The test for granting summary judgment focuses on
    material facts. The facts now in dispute were not material to the resolution of
    this matter.

[12]

The appellants also raised an
    issue regarding the motion judges refusal to release a transcript of the
    motion hearing. We have no evidence indicating that the appellants ordered a
    transcript. Rather, the record indicates Mr. Inspektor requested release of the
    audio recording of the hearing, a matter entirely within the discretion of the
    motion judge. In any event, as the motion was heard based on a written record,
    no transcript of the hearing was required for the purposes of the appeal.

[13]

The appeal is
    dismissed.

[14]

Costs to the respondent
    in the amount of $3,200, inclusive of disbursements and HST.

Janet
    Simmons J.A.

B.W.
    Miller J.A.

Fairburn J.A.


