Court File and Parties

COURT FILE NO.: 19-59262 DATE: 2020-02-25 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Alexander Davidoff Self-represented Plaintiff

• and -

Paderewski Society Home (Niagara), Rachel Goerz, and Niagara Regional Housing (NRH) Kristin M. Bailey, for the Defendant, Paderewski Society Home (Niagara) Michael Kestenberg for the Defendant, Rachel Goerz Defendants Scott Crocco for the Defendant, Niagara Regional Housing (NRH)

HEARD: February 13, 2020 at St. Catharines

RULING ON MOTION

P.R. SWEENY J.

Introduction

[1] In March 2014, Paderewski Society Home (Niagara) (Paderewski) commenced an action against Leopold Skorski, Alexander Davidoff, and Alexandra Davidoff (the Defamation Claim) for defamation arising out of an article published on the website known as Mayorgate, entitled “Seniors Languish in Intimidation” (the Article). Rachel Goerz was the lawyer for Paderewski in the defamation claim prior to the trial. Another lawyer represented Paderewski at the trial.

[2] In a decision dated November 3, 2017, J.R. Henderson J. found Alexander and Skorski liable for defamation respect to some but are not all of the alleged defamatory statements made in the Article. The claim against Alexandra Davidoff was dismissed at the end of the plaintiff’s case.

[3] The trial judge awarded Paderewski $10,000 for general damages and approximately $35,000 for costs. Alexandra was awarded $2,000 for costs.

[4] Alexandra and Alexander have now brought separate claims alleging malicious prosecution and intimidation arising out of the defamation claim.

[5] Alexandra’s claim names Paderewski and Goerz as defendants. Alexander’s claim names Paderewski, Goerz and Niagara Regional Housing (NRH) as defendants.

[6] The defendants have each brought motions under rule 21.01 of the Rules of Civil Procedure to strike out the claims on the basis that the claims disclose no reasonable cause of action.

[7] For the reasons that follow, the claims are struck out as disclosing no reasonable cause of action without leave to amend.

Rule 21.01(1)(b)

[8] Under Rule 21.01 (1), a party may move before a judge…(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence and the judge may make an order or grant summary judgment accordingly.

[9] In Brozmanova v. Tarshis, 2018 ONCA 523, in dealing with rule 21.01 (1) (b), Brown J.A. at para. 25 wrote:

The focus of the motion is the substantive legal adequacy of the claim or defence. The essence of the motion is that the defendant’s wrongdoing as described in the statement of claim is not a violation of the plaintiff’s legal rights, with the result that the plaintiff is not entitled to a remedy even if he or she were able to prove all that material facts set out in the statement of claim.

[10] On a motion to strike a pleading, the facts as pleaded are assumed to be true unless they are patently ridiculous or incapable of proof. If all the deficiencies in the plaintiff’s claims are incurable by amendment, the pleading will be struck out without leave to amend.

[11] The plaintiffs clarified at the commencement of argument that they were not relying on the allegation of intimidation. Therefore, it is not necessary to address that issue.

Malicious Prosecution

[12] The four requisite elements required to succeed in action for malicious prosecution as set out in Nelles v. Ontario, [1989] 2 SCR 170 at paragraph 42 are:

a) the proceedings must have been initiated by the defendant; b) proceeding must have been terminated in favour of the plaintiff; c) the absence of reasonable and probable cause; d) malice, or a primary purpose other than that of carrying the law into effect.

[13] The tort of malicious prosecution applies to criminal proceedings and also applies to disciplinary proceedings. However, the tort of malicious prosecution does not apply to civil proceedings.

[14] The plaintiffs point to the decision of Drainville v. Vilchez, 2014 ONSC 4060 at paragraph 7 which reads as follows:

Normally the person or entity against whom a malicious prosecution suit is brought is the police or the Crown. However, there are rare cases like this one where the complainant has been the defendant, without creating even a ripple of the surface of the lake of analytic discipline. In fact, this tort arose out of private litigation, not actions against public officials. The target of this suit is the person who was “actively instrumental in setting the prosecution in motion”. In this case, it is the defendant who initiated and was actively instrumental in initiating proceedings against the plaintiff when he complained to the police about the alleged actions of the plaintiff.

[15] This case does not assist the plaintiffs. In that case, the defendant although not the police or crown, was a person who instigated the prosecution. The defendant was not a person who instigated a civil action against the plaintiff.

[16] The plaintiffs also rely on Khanna v. Royal College of Dental Surgeons of Ontario, (2000) 47 O.R. (3d) 95 to support the claim against the lawyer. The court wrote at para. 3:

The case against the defendant Bronstein is framed in malicious prosecution. The case is novel in that it is brought against a solicitor who did not institute disciplinary proceedings against the plaintiff but took over the prosecution and conducted it thereafter on behalf of the Royal College of Dental Surgeons until its unsuccessful termination. In the majority’s view, the pleadings, if they can be proven, would constitute a case of malicious prosecution.

[17] In Khanna, it was a professional discipline proceeding which is an acknowledged proceeding for the purposes of the tort of malicious prosecution. It does not stand for the proposition that a lawyer involved in a civil lawsuit could be liable to another party.

[18] On this basis alone, the actions cannot be maintained against any of the defendants. However, I shall briefly address the other arguments raised by the defendants.

Absolute Privilege Bars the Claim

[19] The defendant Goerz submits that it is well-established that the doctrine of absolute privilege applies to bar all tort claims based on communication that take place during, incident to, and in furtherance to a court proceeding. The privilege extends to any action, however framed, and is not limited to actions for defamation (see Cook v. Milbourne, 2018 ONSC 419, paras. 17 and 18).

[20] This absolute privilege is supported by sound policy reasons. If a party can be sued for its conduct of a civil action, there could be no end to the litigation. A lawsuit could be commenced based on the second action and then again on the third action.

[21] On the basis of that privilege, no claim lies against Goerz or Paderewski.

No Duty Owed by Lawyer to Opposing Party

[22] There can be no claim against Goerz because she was a lawyer for the opposing party in litigation. The law is well-established that a lawyer owes no duty to another party litigation (see Geo. Cluthe Manufacturing Co. v. ZTW Properties Inc. (1995), 23 O.R. (3d) 370 (Div. Ct.)).

[23] The claim against NRH is untenable as it is based on malicious prosecution.

[24] For these reasons, the claims are struck out without leave to amend as any proposed amendment would not cure the deficiencies (see Isaac v. Mesiano-Crookston, 2019 ONSC 6973).

Costs

[25] I received costs outlines from the defendants at the hearing of the motion and the defendants and plaintiff were given an opportunity to address costs.

[26] The defendants claim their costs of the motion and the action. The defendants were successful on this motion. On the hearing of the motion, counsel for Goerz took the lead. The motions were argued efficiently, and the material was prepared efficiently. The defendants are entitled to their partial indemnity costs.

[27] I reviewed the costs outline of the defendant NRH and find the amounts claimed reasonable. I fix the partial indemnity costs in the amount of $2,400 all-inclusive.

[28] I have reviewed the costs outline of Paderewski and find the amounts claimed reasonable. I fix the partial indemnity costs of the defendant Paderewski at $3,200 all-inclusive for each claim.

[29] I have reviewed the costs outline of the defendant Goerz and find the amounts reasonable. I fix the partial indemnity cost at $4,750 all-inclusive for each claim.

Order

[30] An Order shall issue as follows:

(1) The claim is struck out without leave to amend; (2) The plaintiff shall pay costs to the defendant, Paderewski, fixed in the amount of $3,200.00 all-inclusive; (3) The plaintiff shall pay costs to the defendant, Goerz, fixed in the amount of $4,700.00 all-inclusive; (4) The plaintiff shall pay costs to the defendant, NRH, fixed in the amount of $2,400.00 all-inclusive.

Sweeny J. Released: February 25, 2020