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Torts - Negligence - Solicitor. De Longte v. De Longte
In De Longte v. De Longte (Ont CA, 2025) the Ontario Court of Appeal allowed an intervention (as an 'added party') in a family law appeal, here by the appellant's former counsel where the appellant raised 'ineffective assistance of counsel' grounds.
The court also allowed the intervenor to augment the record (which is rare for intervenors), here by a sealed affidavit - and issued a declaration that solicitor-client privilege had been waived:[1] The proposed intervener seeks to be added as a party to this appeal. Other than filing an affidavit in response to Mr. De Longte’s allegations of ineffective assistance of counsel and a 15-page factum, he does not seek to augment the record on the appeal. He asks to be able to seek costs and shall be liable for costs. Ms. De Longte consents to the motion. Mr. De Longte opposes it.
[2] The proposed intervener is the former trial lawyer for Mr. De Longte in this family law dispute (“the solicitor”). The trial judge granted his removal as counsel of record prior to the end of the trial because of a breakdown in his relationship with Mr. De Longte.
[3] In his submissions respecting the trial costs and as grounds for his appeal of the trial judgment, Mr. De Longte alleges that he received ineffective assistance from the solicitor during his trial. These allegations include that the solicitor was ineffective in his examination and cross-examination of witnesses, failed to proffer relevant exhibits and did not object to all of the respondent’s tendered exhibits.
[4] On September 17, 2024, Mr. De Longte commenced an action against the solicitor and his firm for professional negligence based on essentially the same allegations of ineffective assistance as he relied on during his trial costs submissions and as he puts forward on his appeal.
[5] Mr. De Longte will seek to file fresh evidence on the appeal in relation to the ineffective assistance of counsel ground. He has asserted other grounds of appeal that are intertwined with the ineffective assistance of counsel allegations.
[6] Rule 13.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, prescribes the criteria for intervention as an added party:13.01(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceedings; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.
(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just. [7] As interpreted by this court, the nature of the dispute between the parties on appeal is crucial to the determination of whether the intervention should be permitted. Where the intervention is sought in a private dispute, “the standard to be met by the proposed intervener is more onerous or more stringently applied”: Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 23.
[8] Further, the nature of the contribution to be made by the proposed intervener is another important consideration. The proposed intervener’s contribution to the litigation must be useful and more than “mere repetition of the position advanced by a party”: Jones, at para. 29.
[9] Applying these principles to the present case, I am satisfied that the solicitor should be added as a party to the appeal. He does not seek to intervene in the matrimonial issues in dispute between the parties. Rather, he wishes to intervene in the issue of ineffective assistance of counsel that Mr. De Longte pursues on appeal. The trial judge declined to determine this issue, leaving it to be adjudicated on appeal.
[10] The proposed intervention is not novel and has been permitted on appeals in the context of ineffective assistance of counsel allegations. The solicitor has a recognized interest in the subject matter of the ineffective assistance of counsel allegations and is the only party who is in a position to respond to them. As such, the solicitor will be able to complete the record before the appeal panel which will assist in the proper adjudication of this issue. See: Butty v. Butty (2009) 96 O.R. (3d) 713 (C.A.); SMTCL Canada Inc. v. Master Tech Inc., 2017 ONCA 291.
[11] Amicus queried the necessity of the intervention. First, the solicitor can provide a full response to Mr. De Longte’s allegations in the existing solicitor’s negligence action. Second, as the claim of ineffective assistance of counsel in a civil context is rarely available, the appeal on that ground may be dismissed as frivolous: W.(D.) v. White (2004), 2004 CanLII 22543 (ON CA), 189 O.A.C. 256 (C.A.), leave to appeal to S.C.C. refused, [2004] S.C.C.A. No. 486; 8150184 Canada Corp. v. Rotisseries Mom’s Express Ltd., 2016 ONCA 115.
[12] Strathy C.J.O. addressed the same concerns about necessity in SMTCL Canada Inc. and concluded at para. 10 of his reasons that intervention was warranted in order to have a full record because “the search for the truth should be an over-arching concern” and “the interests of justice favour a complete evidentiary record.” I would apply the same reasoning to this case.
[13] Moreover, this court’s determination of the issue of ineffective assistance of counsel may resolve all or at least part of Mr. De Longte’s claim against the solicitor, one way or the other. If so, this will benefit the administration of justice and the parties to avoid a multiplicity of proceedings and be in keeping with “the just, most expeditious and least expensive determination of every civil proceeding on its merits” in accordance with the general principles enshrined in r. 1.04 of the Rules.
[14] As for prejudice, there is none. As earlier noted, Ms. De Longte has consented to the intervention. Mr. De Longte was not able to raise any possibility of prejudice. The appeal has not yet been scheduled for hearing and will not be scheduled for some time until Mr. De Longte’s pending motion in the Superior Court to set aside the trial judgement under r. 25(19) of the Family Law Rules, O. Reg. 114/99, has been scheduled and disposed of.
[15] The proposed intervener also requests a declaration that Mr. De Longte has waived solicitor and client privilege with respect to the content of the solicitor’s file and solicitor and client communications pertaining to the matters in dispute. I make that declaration. By his trial costs submissions and grounds of appeal, he has clearly waived that privilege.
[16] While I do not agree with Mr. De Longte’s suggestion that the materials submitted by the solicitor go beyond what was necessary to respond to the allegations of ineffective assistance of counsel, I do agree that, as proposed fresh evidence, they should be filed in a sealed envelope and not form part of the record until the appeal panel accepts the fresh evidence.
[17] Accordingly, order to go as follows:1. The solicitor is granted leave to intervene in Mr. De Longte’s fresh evidence motion and the appeal;
2. I declare that Mr. De Longte has waived solicitor and client privilege with respect to the content of the solicitor’s file and solicitor and client communications pertaining to the matters in dispute;
3. Mr. De Longte shall serve and file his fresh evidence motion in relation to the allegations of ineffective assistance of counsel within 30 days of the release of these reasons;
4. The solicitor may serve and file a responding affidavit in response to the fresh evidence motion and appeal within 30 days of delivery of Mr. De Longte’s fresh evidence motion;
5. The solicitor may cross-examine Mr. De Longte on his affidavit respecting the allegations of ineffective assistance of counsel;
6. Mr. De Longte may cross-examine the solicitor on his responding affidavit;
7. The parties shall agree on the order and schedule for cross-examinations to be completed within 30 days of the delivery of the solicitor’s responding affidavit;
8. The solicitor shall be entitled to deliver a factum not to exceed 15 pages in length;
9. The solicitor shall be entitled to seek costs and shall be liable for costs, in the discretion of the panel hearing the appeal; and
10. If any adjustments need to be made to this schedule, the parties may seek a case conference before Lauwers J.A. [18] The parties shall file any materials related to the fresh evidence motion in a sealed envelope or as directed otherwise by Lauwers J.A. . Furney v. Hazan
In Furney v. Hazan (Ont CA, 2025) the Ontario Court of Appeal allowed part of a plaintiff appellant's appeal against a successful defendant's R21 motion.
Here the court considers when opposing counsel may be liable for their actions:[10] .... we reject the motion judge’s conclusion that Mr. Chhina was insulated from liability because he was acting under instructions from his client. There is a general rule that a lawyer in a commercial transaction owes no duty of care to any party other than their client: Diamond Contracting Ltd. v. MacDearmid (2006), 2006 CanLII 24444 (ON CA), 214 O.A.C. 92 (C.A.), at para. 3. However, where the allegation is, as in this case, that the lawyer knowingly participated in a fraud or was reckless or wilfully blind to a fraud, the lawyer is not immune from liability simply on the basis that he was acting on instructions from a client: see for example Canbook Distribution Corp. v. Borins, 45 O.R. (3d) 565 (S.C.) at paras. 18-22. . Rahman v. Elia Associates
In Rahman v. Elia Associates (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from an earlier striking of a lawsuit against a condo corporation for no reasonable cause of action.
Here the court affirms that there is no negligence cause of duty owed by opposing counsel to a party:[9] The motion judge also correctly held that there was no tenable claim in negligence or for breach of fiduciary duty, given that a solicitor owes no duty of care to an opposing party: see Shuman v. Ontario New Home Warranty Program, 2001 CarswellOnt 3666 (S.C.), at para. 25, aff’d 2002 CarswellOnt 2213 (C.A.), leave to appeal refused, [2002] S.C.C.A. No. 366; see also Yan v. Hutchinson, 2023 ONCA 97, at para. 17, leave to appeal refused, [2023] S.C.C.A. No. 203. . 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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