Court of Appeal for Ontario
BEFORE: Sharpe, van Rensburg and Brown JJ.A.
BETWEEN
Farsad Kiani
Plaintiff (Appellant)
and
Annalyn G. Smith and Pamela Pengelley
Defendants (Respondent)
COUNSEL:
V. Ross Morrison, for the appellant
Iain Peck and Tania Campisi, for the respondent
HEARD AND RELEASED ORALLY: March 31, 2015
On appeal from the order of Justice David Corbett of the Superior Court of Justice, dated October 6, 2014.
ENDORSEMENT
1The claim asserted by the appellant relates to:
the alleged conduct of the respondent Smith, a Texas lawyer, in connection with litigation in Texas against a company of which the appellant was the principal; and
the alleged conduct by that same lawyer in relation to enforcement proceedings brought in Ontario based upon the Texas judgment.
2The motion judge struck the claim on a rule 21 motion as disclosing no cause of action.
3We agree with the motion judge that the claim is misconceived.
4The conduct of Smith in the Texas proceedings concerned conversations between her, as counsel for the opposing party, and a former employee of one of the appellant’s companies, a potential witness in the case, and her statement that she might call that witness on behalf of her client. Those statements, as pleaded, whether in conspiracy or intentional infliction of harm, are not actionable. It is conceded that as the respondent was acting for the opposite party in litigation, she owed the appellant no legal duty. There is no allegation that anything done in Texas was contrary to Texas law. We also agree with the motion judge that as the claim rests on Smith’s conduct of litigation in Texas, it would be incumbent on the appellant to raise any objection to that conduct in the courts of Texas.
5To the extent the pleading asserts interference with contractual relations, we note that the only contract pleaded is that of the witness as an employee of the corporation, not the plaintiff.
6With respect to the allegations resting on the Ontario enforcement action, as the motion judge found, the allegation of a breach of the implied undertaking rule must be dealt with within the context of the Ontario action.
7In our view, the motion judge was well within his discretion in ruling that this was a clear case in which leave to amend should be refused.
8We see no merit in the contention that, having heard and decided the companion motion brought by the Ontario solicitor, the motion judge should have recused himself from hearing this motion. Both matters were scheduled to be heard together, and the statement alleged to give rise to a reasonable apprehension of bias was nothing more than a proposition of law upon which the appellant had been fully heard.
9Accordingly, the appeal is dismissed.
10Costs to the respondent fixed at $7,000, inclusive of disbursements and taxes.
“Robert J. Sharpe J.A.”
“K. van Rensburg J.A.”
“David Brown J.A.”
