COURT OF APPEAL FOR ONTARIO
RE: MOPAL CONSTRUCTION LIMITED (Plaintiff/Respondent) – and – POWELL MOTORSPORT ADVANCED DRIVING SCHOOL INC. and JOHN RICHARD POWELL (Defendants/ Appellants)
BEFORE: GILLESE, ARMSTRONG and BLAIR JJ.A.
COUNSEL: J. Paul Fletcher for the appellants (defendants) H. Richard Bennett for the respondent (plaintiff)
HEARD: March 3, 2004
On appeal from the order of Justice J.E. Sheppard of the Superior Court of Justice dated March 18, 2003.
A P P E A L B O O K E N D O R S E M E N T
1We see no basis for interfering with the order of the motions judge.
2To the extent that the counterclaim alleges an independent actionable wrong as the basis for punitive damages, it is a claim for defamation or at least a defamation-like claim. The law is well-established that a counterclaim based on such allegations in a statement of claim cannot stand because the allegations are absolutely privileged. This principle is not confined strictly to allegations of defamation: see Dooley v. C.N. Weber Ltd. (1994), 1994 7300 (ON SC), 19 O.R. (3d) 779 (Gen. Div.), at pp. 7-8; aff’d [1995] O.J. 940 (C.A.). Whiten v. Pilot Insurance Co., 2002 SCC 18, [2002] S.C.J. 19 (S.C.C.) does not alter this law.
3As to costs, there was a basis on the record before him to justify the motion judge’s exercise of discretion and there is no basis for interfering with his disposition in this regard.
4Accordingly, the appeal is dismissed.
5Costs, payable to the respondent, are fixed at $5,000 all inclusive.