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Evidence - Privilege - Absolute. Curtis v. McCague Borlack LLP
In Curtis v. McCague Borlack LLP (Ont CA, 2024) the Ontario Court of Appeal considered an appeal, here involving a lawsuit brought against opposing counsel in a prior proceeding involving the appellants which was dismissed on grounds of 'absolute privilege'.
Here the court considers the interaction of absolute privilege [here an action against opposing counsel] and malicious prosecution, here while considering the issue of a pleading amendment:[13] We agree with the motion judge that there is no basis to conclude that an amendment could salvage the claim of Ms. Rebello. What might have some application in this case, but only in connection with one aspect of the claim advanced by Mr. Curtis, is the last sentence of the Halsbury’s excerpt quoted in Amato and by the motion judge at para. 34: “A separate action for malicious prosecution or the malicious institution or abuse of civil proceedings may lie independently of the law of defamation.” The Supreme Court noted in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at p. 199, that: “the existence of absolute immunity is a threat to the individual rights of citizens who have been wrongly and maliciously prosecuted.”
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[17] The statement of claim also includes the causes of action of negligence and/or gross negligence, conspiracy to injure by lawful and unlawful means, fraudulent misrepresentation, and negligent and/or intentional infliction of emotional distress, mental anguish, psychological suffering, injury to dignity, embarrassment, and humiliation. To be very clear, none of these can be pursued against the respondents in the face of absolute privilege. . Curtis v. McCague Borlack LLP
In Curtis v. McCague Borlack LLP (Ont CA, 2024) the Ontario Court of Appeal considered an appeal, here involving a lawsuit brought against opposing counsel in a prior proceeding involving the appellants which was dismissed on grounds of 'absolute privilege':[8] The motion judge did not err in finding that the claim against Mr. Turkienicz and McCague Borlack in relation to his conduct as counsel for other clients in the Rebello action was barred by absolute privilege. Mr. Turkienicz owed no duty to the appellants in that action. ...
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[9] In refusing leave to amend the claim, the motion judge cited the doctrine of absolute privilege as explained in Amato v. Welsh, 2013 ONCA 258, 362 D.L.R. (4th) 38, at para. 34. He quoted, at para. 23, the strong words of LaBrosse J. in Bluteau v. Griffiths, 2023 ONSC 1004, who said, at para. 29:It is well established that the doctrine of absolute privilege prevents claims based on communications that take place during, incidental to, and in furtherance of a court proceeding. It makes no difference if the words used are knowingly false and spoken with malice: they are subject to immunity from suit. [10] The motion judge found Bluteau to be “particularly salient” because, as he noted at para. 26:Mr. Curtis essentially alleges that Mr. Turkienicz knowingly allowed an employee of Paragon Security which provides security guard services in the building in which the plaintiffs live, to swear an affidavit which did not disclose particular security reports that the plaintiffs allege were relevant to the affidavit being sworn. As in Bluteau, even if that allegation is true, I would question whether that omission is one properly attributable to Mr. Turkienicz as opposed to the person who swore the affidavit. [11] The doctrine of absolute privilege is deeply rooted in Canadian common law. The policy basis for the doctrine is the protection of vigorous and undistracted advocacy, on which the adversarial system turns. As Brett M.R. said in Munster v. Lamb (1883), 11 Q.B.D. 588 (Eng. C.A.), at pp.603-604:If upon the grounds of public policy and free administration of the law the privilege be extended to judges and witnesses, although they speak maliciously and without reasonable or probable cause, is it not for the benefit of the administration of the law that counsel also should have an entirely free mind? Of the three classes – judge, witness, and counsel – it seems to me that a counsel has a special need to have his mind clear from all anxiety. [12] Mr. Curtis argues that the doctrine’s limited purpose is to provide counsel with immunity only from defamation actions. As we see it, although the contours of the doctrine are not fixed, as Cronk J.A. observed in Amato, at para. 35, it plainly applies beyond defamation. As Levine J.A. stated in Hamouth v. Edwards & Angell, 2005 BCCA 172, 253 D.L.R. (4th) 372, at para. 37:Granting absolute privilege to lawyers when they act in the course of their duties to their clients is for the public benefit. It frees lawyers from fear that in advocating their client’s cause they will be sued if what they say on behalf of a client is found not to be true. ....
[17] The statement of claim also includes the causes of action of negligence and/or gross negligence, conspiracy to injure by lawful and unlawful means, fraudulent misrepresentation, and negligent and/or intentional infliction of emotional distress, mental anguish, psychological suffering, injury to dignity, embarrassment, and humiliation. To be very clear, none of these can be pursued against the respondents in the face of absolute privilege. . Tewari v. Sekhorn
In Tewari v. Sekhorn (Ont CA, 2023) the Court of Appeal considered 'absolute' privilege, here where a claim was struck:[3] The motion judge granted the respondents’ motion to strike the statement of claim, without leave to amend. Citing Salasel v. Cuthbertson, 2015 ONCA 115, 124 O.R. (3d) 401, at para. 35, he noted that “the conduct of the Defendants during the course of the litigation and any steps that were preparatory, preliminary, intimately connected, necessary or incidental to the institution of that legal proceeding is absolutely privileged in law”. As held in 1522491 Ontario Inc. v. Stewart, Esten Professional Corporation, 2010 ONSC 727, 100 O.R. (3d) 596, at paras. 33-34, absolute privilege extends even to false or malicious statements made in pleadings and factums. As a result, reading the statement of claim generously and assuming all facts alleged in it were true, Mr. Tewari’s action for conspiracy could not succeed. The motion judge further found Mr. Tewari’s claim that the respondents breached their fiduciary duty was untenable, given that they represented parties whom Mr. Tewari was suing, and Mr. Tewari did not allege that he ever had any solicitor-client relationship with them. . Yan v. Hutchinson
In Yan v. Hutchinson (Ont CA, 2023) the Court of Appeal considers the doctrine of 'absolute privilege', where "judges, counsel, jury, witnesses or parties" are sued for utterances in court or tribunal proceedings:[18] Sixth, Ms. Yan sued several parties for defamation. However, the law of defamation bars a lawsuit against someone who is protected by “absolute privilege” for utterances in court or tribunal proceedings. The motion judge correctly instructed himself on the law, citing this court’s decision in Salasel v. Cuthbertson, 2015 ONCA 115, 124 O.R. (3d) 401, at para. 35:The doctrine of absolute privilege contains several basic elements: no action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognized by law; the privilege extends to documents properly used and regularly prepared for use in the proceedings; and a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings: Amato v. Welsh, [2013] O.J. No. 1857, 2013 ONCA 258, at para. 34. . Kurdina v. Toronto Community Housing Corporation
In Kurdina v. Toronto Community Housing Corporation (Div Court, 2022) the Divisional Court considered an issue of absolute privilege (here, 'witness immunity'):[5] The Deputy Judge was not incorrect in finding that the issue had already been fully litigated before the LTB, including all appeals. The Appellant appealed the LTB decision to this court, which appeal was dismissed: 2021 ONSC 544. Leave to appeal was denied by both the Court of Appeal and the Supreme Court of Canada. This was the proper way to address any issue that the Appellant had with the LTB proceeding, including any alleged misrepresentation in the course of testimony. On the appeal, this court found that the LTB’s decision about the credibility of the Respondent’s witness disclosed no error of law: 2021 ONSC 544, at para. 13.
[6] Moreover, the Appellant’s claim for misrepresentation, and therefore her appeal, is precluded by the doctrine of witness immunity. The doctrine of witness immunity is summarized in Peter Sankoff, The Law of Witnesses in Canada, § 21:14, as follows:There are two important aspects to the rule. The first is that anything testified to by a witness in judicial proceedings enjoys absolute privilege for the purposes of the law of defamation and cannot, therefore, be the subject of a civil action for slander. The second aspect is arguably even more significant, for it precludes anyone from bringing a civil action for harm supposedly caused by a witness's testimony. [7] In Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115, 236 N.S.R. (2d) 104, at paras. 101-107, 112-119, Cromwell J.A. (as he then was) found that it was undisputed that witness immunity extends to all negligence actions and not just defamation, and described this as settled law. See also: Cook v. Milborne, 2018 ONSC 419, at paras. 51-52.
[8] In Salasel v. Cuthbertson, 2015 ONCA 115, 124 O.R. (3d) 401, at para. 35, the Ontario Court of Appeal summarized the doctrine of absolute privilege as follows:The doctrine of absolute privilege contains several basic elements: no action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognised by law; the privilege extends to documents properly used and regularly prepared for use in the proceedings; and, a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings: Amato v. Welsh, 2013 ONCA 258, at para. 34. [9] The Appellant is precluded from bringing a claim for misrepresentation against the Respondent for statements made in the proceeding before the LTB because any such statements are protected by the doctrine of absolute privilege. The opportunity to challenge the testimony of the Respondent’s witness was by appeal. The Appellant pursued an appeal and was ultimately unsuccessful. The action was thus properly dismissed by the Deputy Judge. This appeal is frivolous, vexatious and without any basis in law. I am satisfied that the frivolous or abusive nature of the appeal is apparent on the face of the notice of appeal. . Collins v. Canada Post Corporation
In Collins v. Canada Post Corporation (Ont CA, 2022) the Court of Appeal considered a claim of 'absolute privilege':[10] The motion judge found that the claims against Norton Rose in the Superior Court action relate entirely to their participation as counsel in the Federal Court proceedings and include allegations that Norton Rose commissioned a misleading affidavit and omitted to advise the Federal Court of material facts. He held that the claims against Norton Rose were barred by the doctrine of absolute privilege, which provides that no action can be brought against (among others) counsel for statements made in the ordinary course of a judicial proceeding: Salasel v. Cuthbertson, 2015 ONCA 115, 124 O.R. (3d) 401, at para. 35. . Salasel v Cuthbertson
In Salasel v Cuthbertson (Ont CA, 2015) the court stated this with respect to absolute privilege:Absolute privilege
[35] The doctrine of absolute privilege contains several basic elements: no action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognised by law; the privilege extends to documents properly used and regularly prepared for use in the proceedings; and, a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings: Amato v. Welsh, 2013 ONCA 258, at para. 34.
[36] At issue in this case is a communication made by counsel for the respondent physicians before the actual commencement of legal proceedings. As noted by Cullity J. in Moseley-Williams v. Hansler Industries Ltd. (2004), 2004 CanLII 66313 (ON SC), 38 C.C.E.L. (3d) 111 (Ont. S.C.), aff’d [2005] O.J. No. 997 (Ont. C.A.), Ontario has adopted a broader application of the rule of absolute privilege to such pre-suit statements than jurisdictions such as British Columbia, Alberta and England. The scope of the Ontario rule was summarized comprehensively by the Divisional Court in 1522491 Ontario Inc. v. Steward, Esten Professional Corp., 2010 ONSC 727, 100 O.R. (3d) 596, at paras. 37 and 39 to 44:[37] In Ontario, absolute privilege may extend to communications by a party's solicitor made before the actual commencement of proceedings.
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[39] As Cullity J. points out in Moseley-Williams, the following statement from Fleming has been referred to with approval in Ontario decisions:The privilege is not confined to statements made in court, but extends to all preparatory steps taken with a view to judicial proceedings.... But the statement or document must be directly concerned with actual contemplated proceedings. [40] However, Cullity J. also found that the authorities do not appear to support an extension of the privilege to all occasions when the possibility of litigation is contemplated, or even when a threat of litigation is made, or when a lawyer is endeavouring to assert and protect a client's rights.
[41] Thus, when a defendant in these circumstances moves to dismiss the claim on the ground of absolute privilege, the decision the court has to make is whether the communication was made “for the purpose of, or preparatory to, the commencement of [judicial] proceedings”.
[42] Something more than merely a contemplation of the possibility of litigation is required. The court must decide whether the occasion is “incidental” or “preparatory” or “intimately connected” to judicial proceedings and not one that is too remote.
[43] It is in this sense that Cullity J. accepted that “... some inquiry into the purpose of their publication would appear to be unavoidable”… That case dealt with a motion for judgment under rule 20. On a rule 21.01(1)(b) motion, the “inquiry” is made on the assumed truth of the facts pleaded in the statement of claim.
[44] It must be stressed that “it is the occasion, not the communication, that is privileged. The privilege belongs to the occasion by reason of the setting.” [Citations omitted; emphasis in original.] Determining whether an occasion is preparatory to, or intimately connected with, judicial or quasi-judicial proceedings involves, as Cullity J. aptly put the matter in Moseley-Williams, at paras. 57 and 58, an exercise of ascertaining where a line is to be drawn so that the degree of connection between the occasion and the judicial proceeding is not too remote.
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