Ontario Superior Court of Justice (Divisional Court)
Pahl v. Steve Scherer Pontiac Buick GMC Ltd.
Date: 2005-09-29
Docket: 05-240-DV
Counsel: David Harris, for Respondent / Plaintiff, Bobbie Pahl J. Sebastian Winny, for Appellants / Defendants, Steve Scherer, Pontiac Buick GMC Ltd., Joe Scherer
Per curiam (orally):
1This is an appeal by leave of Reilly J. from part of an interlocutory Order of Glithero J., dated December 3, 2004 which granted leave to the plaintiff to amend her Statement of Claim.
2This request came in response to a Demand for Particulars in which the defence provided information pursuant to which the claim for amendment arose.
3The authorities appear clear in Ontario that when statements are made in judicial proceedings, a defence of absolute privilege follows: Hall v. Baxter (1922), 22 O.W.N. 207 (Ont. H.C.).
4This principle was followed in a number of Ontario cases including Dooley v. C.N Weber Ltd. (1994), 19 O.R. (3d) 779 (Ont. Gen. Div.); (note p. 278 paragraph (e)) and Samuel Manu-Tech Inc. v. Redipac Recycling Corp. (1999), 38 C.P.C. (4th) 297 (Ont. C.A.) (note paragraph 13).
5Many trial judges' decisions following that principle were noted in submissions.
6The plaintiff, in submission, argues that the protection is not absolute if made improperly or maliciously and that the appellant is required to demonstrate that it was plain and obvious such claim could not succeed in law as well as he has raised the matter of abuse of process.
7With respect to the test of abuse of process, it is well established that there are two elements required to establish such a claim.
8One of these essential elements does not exist in this case. That is "some overt act or threat, distinct from the proceedings themselves, in furtherance of that purpose" [Fleming The Law of Torts 8th Edition, p. 623 cited with approval in Dooley, supra.
9It is noted that in Hall v. Baxter, supra, when discussing such privilege at 209, it is noted that "the privilege is extended to statements though made falsely and maliciously".
10It is as well cited that in Dooley v. C.N. Weber Ltd., [1995] O.J. No. 940 (Ont. C.A.) the Ontario Court of Appeal held at p. 2 that "the allegations of sexual harassment in the pleadings and in particulars supplied by the respondent are privileged".
11It is, therefore, ordered that paragraph 5 of the Order of Glithero J. dated December, 2004 be set aside and in its place there be an order dismissing the plaintiffs motion for leave to amend her Statement of Claim.
12The appellant will have its costs of the appeal fixed in the amount of $3,651.00 inclusive of GST and its costs of the motion for leave to appeal before Reilly J., fixed in the amount of $2,500.00 inclusive of GST.
13The parties will resolve the matter of costs before Glithero J. and failing such resolution within 30 days, shall submit written submissions to the Court in respect thereof.
Appeal allowed.