COURT FILE NO.: 268/02

DATE: 20030513

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Ben Yen, Plaintiff, Appellant; and Joachim Loh, Defendant, Respondent.

HEARD: April 22, 2003;

BEFORE: Lane, Then and Lang, JJ.

COUNSEL: Plaintiff, Appellant, in person; John Webster, for the Defendant, Respondent

ENDORSEMENT

[1] This is an appeal by the plaintiff from an order dated April 11, 2002, striking out the Statement of Claim and dismissing the action under Rule 21 as showing no cause of action, without leave to amend.

[2] The Statement of Claim consisted of a single paragraph:

Mr. Joachim Loh is not providing me with a letter, which is to witness that I had told him face to face that I am being forced to sell my properties (Buildings in Stephenville, Newfoundland) under pressure and duress before I signed any document which I need to support my claim to recover my buildings. Because he is not standing up for justice and write me that letter, I will never be able to recover my buildings in which I sold under pressure and duress. I have been burdened and suffered with tremendous mental anguish and will continue to burden and suffer with mental anguish for the rest of my life which in turn will cause me physical illness and shortening my life, and financial losses, and therefore I am claiming that Mr. Joachim Loh to write me that letter, (to stand up for justice as a lawyer should) or to pay me 10 Million dollars as compensation for all my mental anguish and sufferings, and financial losses.

[3] The Judge’s endorsement in full is:

Order striking out the Statement of Claim as disclosing no cause of action. Order as per draft order filed; costs to the defendant fixed at $1,000.

[4] At the outset of the appeal, the issue of our jurisdiction had to be addressed because the alternative claim greatly exceeded our monetary limit. The action had been begun under the Simplified Rules in February, 2002, but had somehow been accepted for filing despite the excessive amount claimed. Before us, Mr. Yen decided to reduce his alternative claim to $25,000 to bring it within our jurisdiction, stating that all he really wanted was the letter but the court office had told him he had to claim some amount and he chose one. On consent, therefore, the Statement of Claim was amended to claim $25,000 in the alternative. We then proceeded to hear the appeal.

[5] Mr. Yen submitted that Mr. Loh was acting as his lawyer here in Ontario with respect to some land and buildings in Stephenville, Newfoundland which he was under pressure to sell. Mr. Yen attended upon Mr. Loh to sign the transfer documents and says he told Mr. Loh, as is pleaded, that he was being forced to sell under pressure and duress. After Mr. Loh acknowledged this statement, Mr. Yen says he signed the papers and the property was duly transferred. One serious problem with these submissions is that important facts are not in the Statement of Claim and therefore not properly before us. The most important missing fact is the nature of the relationship with Mr. Loh.

[6] Evidently, Mr. Yen now regrets having sold the property and wishes to recover it. He has not started proceedings to do so, but believes that he must first strengthen his position by obtaining a letter from Mr. Loh confirming the conversation. He says he asked for such a letter and was refused and so brought this action.

[7] There are a number of problematic aspects to this action. The requested letter is in effect a witness statement for a contemplated action. It would not be admissible evidence standing by itself; Mr. Loh would still have to be called. A suit against a potential witness claiming damages, even in the alternative, may breach the fundamental immunity of witnesses from suit for anything done in or about the giving of testimony. The evidence could clearly be obtained by subpoena or examination in the contemplated action rather than by this method. The claim as submitted to us by the plaintiff assumes that a lawyer has a duty to assist the client by confirming the client’s version of events.

[8] The test for the dismissal of an action under Rule 21 is that it is ‘plain and obvious’ that the action cannot succeed.[^1] As the motions judge gave no reasons, we do not know on which, if any, of the problems just mentioned the decision is based. We therefore have to proceed with a fresh consideration of the matter.

[9] Witnesses are absolutely immune from suit for any act or omission in or about the process of preparing to give and giving evidence in any court.[^2] If, as seems to be the case, the present action is intended to compel a potential witness, Mr. Loh, to give a statement confirming the plaintiff’s version of events, or suffer damages, it offends this principle and cannot be allowed to proceed. On this assumption, we cannot find any error in the result below.

[10] On the other hand, if the intention of the plaintiff is to require his former solicitor to co-operate with him by giving the solicitor’s own recollections of the matter, whether or not in agreement with the recollections of the plaintiff, it is not plain and obvious that a solicitor may not owe such a duty. However, any such duty cannot possibly extend to a duty to support and confirm the client’s recollections; it can only extend to reporting the solicitor’s own recollections.

[11] It appears to us that the letter sought may be inadmissible at the trial and the evidence may be obtained more easily and more cheaply by subpoena in an action to set aside the sale of the property. The plaintiff may well find himself being required to bear the costs of the whole unnecessary exercise if he persists in this action rather than pursuing his evidence in more convenient and less expensive ways.

[12] In our view, given that he is unrepresented, that there had been no prior motion involving this action, and that the problem may be eliminated by amendment, Mr. Yen should have been given leave to amend to confine his claim to a statement from the defendant as to the defendant’s recollections with no claim for damages. The utility of so doing is doubtful, but that is not a matter before the court on a Rule 21 motion.

[13] We are concerned by the absence of reasons for the decision appealed from. Reasons are essential if we are to preserve the appearance, as well as the reality, of justice being done.

[14] The appeal is allowed, but only to the extent of permitting the plaintiff to amend his Statement of Claim within twenty days to limit his claim as indicated above. Leave to the defendant to deliver a defence within a further twenty days. There will be no costs.

Lane J.

Then J.

Lang J.

DATE: May 12, 2003

[^1]: Hunt v. Carey Canada Ltd. 1990 90 (SCC), [1990] 2 S.C.R. 959.

[^2]: Samuel Manu-Tech Inc. v. Redipac Recycling Corp. (1999) 1999 3776 (ON CA), 124 O.A.C. 125 (Ont. C.A.)