COURT OF APPEAL FOR ONTARIO
RE:
MUNYONZWE HAMALENGWA (Appellant) – and – BRUCE DUNCAN (Respondent)
BEFORE:
CRONK, LANG and JURIANSZ JJ.A.
COUNSEL:
Munyonzwe Hamalengwa
in person
Paul D. Stern
for the respondent
HEARD:
September 8, 2005
On appeal from the judgment of Justice Victor Paisley of the Superior Court of Justice dated January 20, 2005.
E N D O R S E M E N T
Introduction
1This is an appeal from the order of Paisley J. of the Superior Court of Justice dated January 20, 2005 striking the appellant’s claim under rule 21.01 on the basis that it disclosed no cause of action.
2The appellant, a lawyer, brought an action against a judge who sent a letter of complaint about him to the Complaints and Investigations Department of the Law Society of Upper Canada. After investigating the complaint, the Law Society decided no action was warranted and closed its file.
3In his action, the appellant claimed damages for libel and slander, breach of his constitutional rights, breach of fiduciary duty, emotional anguish, and wrongful interference with professional and economic interests.
4The motion judge struck the entire action on the basis that the respondent was protected by judicial immunity as well as the absolute privilege given to any person who files a complaint with a statutory regulatory body and, in addition, because the statement of claim did not contain particulars to support the appellant’s allegation of malice. The motion judge also awarded costs against the appellant on a substantial indemnity basis.
5The appellant appeals the motion judge’s decision and his costs award in favour of the respondent.
Analysis
6The respondent stated in his complaint letter, “There is also a possibility that Legal Aid is paying Mr. Hamalengwa for work actually done by Mr. Lettman”. We are satisfied that this statement is capable of having a defamatory meaning. Mr. Lettman is a non-lawyer who represented a client of the appellant who was charged with a summary conviction offence. Even if a lawyer can bill Legal Aid for work done by a paralegal, the sentence is capable of being understood to suggest irregularity in the appellant’s bills to Legal Aid.
7Nevertheless, the action was properly struck on each of the several grounds given by the motion judge. We reach this conclusion for several reasons.
8First, the respondent’s letter is protected by the absolute privilege given to any person who makes a complaint to a quasi-judicial regulatory authority. See Sussman v. Eales (1986), 25 C.P.C. (2d) 7 at 8 (O.C.A.); Roach v. Long, [2002] O.J. No. 2471 at 3 (Div. Court). The respondent’s letter was sent to the Law Society, the quasi-judicial body that is statutorily responsible for investigating and disciplining lawyers in Ontario, and so is protected by absolute privilege.
9In his statement of claim, the appellant alleged that the letter was seen and read by another judge and that the respondent acted with malice. The other judge was the author of a letter that accompanied the respondent’s letter to the Law Society. Both the Law Society and the appellant regarded and treated the two letters as constituting one complaint. In these circumstances, absolute privilege applies to the joint complaint of the two complainants.
10Second, the respondent’s communication to the Law Society is protected by judicial immunity. The appellant relied on Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249 to argue that judicial immunity does not allow judges to make malicious and racially motivated comments. Moreau-Bérubé involved judicial review of the New Brunswick Judicial Council’s recommendation that a judge be removed from office. It is not relevant to the matter under appeal.
11The respondent’s letter to the Law Society, while not itself an adjudicative act, was closely and directly connected to his adjudication of the summary conviction charge before him and flowed from the important judicial function of protecting the administration of justice and criminal defendants from potential misconduct by lawyers. Whatever limits there may be on judicial immunity, in the circumstances of this case the respondent is protected by judicial immunity from civil action.
12Third, assuming that the respondent’s letter is not protected by judicial immunity or absolute privilege, the appellant’s pleading fails to provide particulars to support his allegation of malice. The appellant submits that the malice in this case is racial animus. He relies on this court’s decision in R. v. Brown (2003), 2003 52142 (ON CA), 64 O.R. (3d) 161 for the proposition that if racial profiling is to be proven, it must be done by inference drawn from circumstantial evidence.
13The appellant’s statement of claim made specific reference to the judge’s letter. Accordingly, both the letter and its attachments could be considered on the Rule 21 motion. They indicate that the circumstances include the following:
the appellant signed a legal aid certificate for an accused on May 6, 2003;
a Mr. Lettman appeared for the accused before the respondent on September 5 and 12, 2003. On September 12, the accused pleaded guilty and Mr. Lettman was prepared to proceed with sentencing but the respondent, on his own initiative, adjourned the matter so a pre-sentence report could be prepared. The matter was put over to October 22;
Mr. Lettman did not appear on October 22, 2003 and the respondent put the matter over a week;
Mr. Lettman did not appear on October 30, and the accused informed the judge that Mr. Lettman’s secretary advised he was having some emergency and Mr. Hamalengwa would be coming. Neither appeared;
after the second consecutive unexplained occasion when no counsel appeared for the accused, the respondent wrote to Mr. Lettman advising the matter had been re-scheduled for November 14 and directing that he appear to show why he should not be found in contempt;
the appellant responded to this letter to Mr. Lettman, and appeared on November 14 to complete the sentencing;
in court, Mr. Lettman had allowed the respondent to believe that he was counsel for the accused and, on inquiry, his office failed to indicate that he was not a lawyer;
both Mr. Lettman and the appellant worked out of an office called “International Lawyers”. The appellant was the only lawyer there; and
the appellant advised the court that Mr. Lettman had appeared for the accused as his agent, but he was not aware of the scheduled dates.
14Assuming without deciding that the test in Brown, which is a criminal case, applies, we are of the view that the test was not met in this case. In Brown, in deciding if the circumstances were capable of supporting an inference of racial profiling, the court considered whether the circumstances corresponded to the phenomenon of racial profiling and, in addition, whether they provided a basis for the court to infer that the involved police officer was lying about why he or she singled out the accused person for attention. In Brown, among other things, there was evidence that the officer had prepared a second set of notes to justify the stop and there were discrepancies between the times recorded in his notebook and those that he gave to the breathalyzer technician. The court decided that the circumstances were capable of supporting an inference of racial profiling and so should be considered by a trial court.
15In contrast, the circumstances of this case are not capable of supporting an inference of racial profiling or that the respondent complained to the Law Society because of racial animus. The transcripts indicate that it appeared to the respondent that Mr. Lettman was performing the appellant’s work on a legal aid certificate while representing himself to be a lawyer. Before this court, the appellant emphasized that he had advised the respondent that he only billed Legal Aid for work he performed. However, the information provided to the respondent left open the question how Mr. Lettman was being paid for his work. But for his failure to appear twice, Mr. Lettman was ready to represent the accused to the completion of sentencing. In these circumstances, there is nothing that undermines the integrity of the respondent’s suspicion of irregularity. This is unaffected by the circumstance that the Law Society’s subsequent investigation resulted in the conclusion that no further action was warranted on the complaint.
16The same analysis applies to the appellant’s claim for Charter damages. Thus, the action was properly struck out.
17The appellant also appeals the scale of the motion judge’s award of costs against him. He submits that as an officer of the court he has a duty to speak out against injustice and to attempt to improve the administration of justice. While that may be, we would not interfere with the motion judge’s exercise of discretion in awarding costs. An allegation of racial animus is analogous to allegations of fraud, misconduct or dishonesty, which are viewed as a sufficient basis to award costs on the substantial indemnity scale when not substantiated. For this reason alone, it cannot be said that the motion judge erred in principle or that his award of costs is plainly wrong. Accordingly, there is no basis for appellate intervention with the motion judge’s costs award: see Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303 at para. 27.
18For the reasons given, the appeal is dismissed. The respondent is entitled to his costs of the appeal, fixed in the amount of $10,000.00, inclusive of disbursements and GST.
“E.A. Cronk J.A.”
“S.E. Lang J.A.”
“R.G. Juriansz J.A.”
