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Torts - Negligence - Solicitor

. Regan v. Esterbauer

In Regan v. Esterbauer (Ont CA, 2024) the Court of Appeal held (interestingly) that where a solicitor's negligence claim, that alleged that a court finding was made 'negligently' by impugned representing counsel, amounts to a collateral attack on the finding (presumably as the only route to challenge it was an appeal against the related order):
[10] In order to succeed in his claim against the respondents, Mr. Regan must establish that, but for the respondents’ alleged negligence or breach of contract, the contempt finding by Gray J. and the decision of this court on appeal would have been different. We reject each of the grounds Mr. Regan raises.

[11] First, as the motion judge correctly found, this challenge amounts to an impermissible collateral attack on the decisions of Gray J. and this court on appeal: Lang Michener LLP v. King, 2017 ONSC 1917, at paras. 26-32, rev’d on other grounds, 2018 ONCA 471. On that basis, the motion judge correctly allowed the motion to dismiss Mr. Regan’s action as an abuse of process.
. Caledon (Town) v. Darzi Holdings Ltd.

In Caledon (Town) v. Darzi Holdings Ltd. (Ont CA, 2022) the Court of Appeal considered practice matters and intervenor status of former counsel when facing a civil claim for ineffective assistance of counsel:
[22] The well-established practice of this court on criminal appeals in which ineffective assistance of counsel is advanced as a ground of appeal is that responding Crown counsel adduces the evidence responding to the appellant’s allegations. Typically, Crown counsel will file an affidavit from the former counsel that responds to the allegations of ineffective assistance of counsel. Either party may file the transcript of any cross-examination on that affidavit. This reflects the principle that the preparation of the materials for a motion for fresh evidence is controlled by the parties to the appeal.

[23] The same principle should apply in this civil appeal. Consequently, it will be for the Town’s counsel to file any affidavit from Former Counsel and file any necessary responding motion record regarding the fresh evidence.

[24] However, given the novelty of the appellants’ attempt to advance ineffective assistance of counsel as a ground of appeal and the obvious reputational interest of Former Counsel in the motion for fresh evidence, I grant Former Counsel leave to intervene as an added party on the appeal pursuant to r. 13.01(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, but with his rights limited as follows:
(i) Former Counsel may file a responding factum on the motion to adduce fresh evidence of no more than 10 pages, limited to the issue of whether ineffective assistance of counsel exists as a ground of appeal in civil proceedings in this province;

(ii) That factum shall be delivered on or before Friday, September 23, 2022, but following the appellants’ delivery of their formal fresh evidence motion record, with supplementary factum; and

(iii) Whether Former Counsel may make submissions at the hearing of the motion for fresh evidence is a matter to be decided by the panel hearing that motion and the appeal.


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Last modified: 24-02-24
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