Endorsement

Court File No.: CV-24-3698
Date: 2025-01-20
Ontario Superior Court of Justice

Re: Douglas LaFramboise, Plaintiff
And: Robert Kostyniuk, Defendant

Before: M.T. Doi
Counsel:
Michael R. Kestenberg, for the Moving Defendant
Douglas LaFramboise, self-represented Plaintiff

Heard: In Writing

Overview

[1] The registrar’s office referred this action to me pursuant to Rule 2.1.01(7) following receipt of a written request from counsel for the Defendant, Robert Kostyniuk (“Kostyniuk”), pursuant to Rule 2.1.01(6).

[2] I directed the registrar to notify the Plaintiff, Douglas LaFramboise (“LaFramboise”), that the court was considering an order to dismiss the action under Rule 2.1.01, and invited written submissions from the parties on whether the action should be dismissed. I have now reviewed the submissions that were filed.

[3] As set out below, I am satisfied that the action is clearly an abuse of process. Accordingly, the action is dismissed.

Rule 2.1

[4] Under Rule 2.1.01, the court may stay or dismiss a proceeding that appears on its face to be frivolous, vexatious, or otherwise an abuse of process of the court. The application of the rule is, “limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to resort to the attenuated process:” Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 at para 8; Mohammad v. McMaster University, 2023 ONCA 598 at para 6; Wu v. Toronto (City), 2024 ONCA 810 at paras 3-4; Halik v. 580 Christie Street Co-Ownership Inc., 2024 ONSC 5722 (Div Ct) at para 5.

[5] Rule 2.1 is “interpreted and applied robustly so that a motion judge can effectively exercise his or her gatekeeping function to weed out litigation that is clearly frivolous, vexatious, or an abuse of process:” Scaduto at para 8; Visic v. Elia Associates Professional Corporation, 2020 ONCA 690 at para 8; 580 Christie at para 6.

[6] A motion under Rule 2.1 focuses on the pleadings and any submissions of the parties made under the rule. No evidence is submitted on a Rule 2.1 motion: Visic at para 8; Scaduto at paras 9 and 11-12. A court may review reasons and pleadings from other proceedings in determining whether the case is abusive: Visic at para 8, citing Khan v. Law Society of Ontario, 2020 ONCA 320 at para 9.

Analysis

[7] As set out below, I am satisfied that the action is clearly an abuse of process for raising a collateral attack on prior decisions of the Superior Court of Justice and the Court of Appeal. In addition, I am satisfied that absolute privilege clearly bars LaFramboise’s claims in this action, and that Kostyniuk owed no duty to LaFramboise as claimed.

[8] This action arose from a prior action in which Kostyniuk successfully acted for a plaintiff, Sylvia Zwaan (“Zwaan”), in an unlawful conversion action against LaFramboise. At trial, Zwaan obtained judgment against LaFramboise as the trial judge found that an unlawful conversion had occurred when LaFramboise deposited Zwaan’s $36,200.00 insurance cheque into his personal bank account without authority: Zwaan v. Laframboise, 2024 ONSC 23 at para 79. The trial judge ordered the return of the insurance funds to Zwaan, granted prejudgment interest, and directed LaFramboise to pay $50,000.00 in punitive damages. Zwaan’s claim against LaFramboise’s law firm was dismissed. The Court of Appeal dismissed an appeal from the trial decision: Zwaan v. LaFramboise, 2024 ONCA 800 at para 2.

[9] In the Zwaan action, LaFramboise claimed that Kostyniuk had intentionally suppressed evidence by failing to adduce bank statements at trial to assist Zwaan in committing perjury. The Court of Appeal rejected this argument and held that Zwaan did not perjure herself. The decision of the Court of Appeal is conclusive and cannot be collaterally attacked by LaFramboise issuing a new proceeding against Kostyniuk who was Zwaan’s lawyer in that action.

[10] In addition, I am satisfied that this action is clearly barred by the doctrine of absolute privilege. Absolute privilege operates to bar all tort claims based on communications during, incidental to, and in furtherance of court proceedings: Tewari v. Sekhorn, 2024 ONCA 123 at para 3; Amato v. Walsh, 2013 ONCA 258 at para 34; Isaac v. Mesiano-Crookston, 2019 ONSC 6973 at para 40; Mukwa v. Farm Credit Canada, 2021 ONSC 1632 at para 50. Sound policy reasons ground the doctrine of absolute privilege. If a party could be sued for conduct in a civil case, there would be no end to litigation. A person dissatisfied with the outcome of a first action could bring a second action claiming misconduct by a party or lawyer in the first, a third action if unsuccessful in the second, and so on: Davidoff v. Paderewski, 2020 ONSC 1171 at para 20; aff’d 2021 ONCA 194 at para 2.

[11] In this action, LaFramboise claims that Kostyniuk suppressed evidence at the Zwaan trial and knowingly allowed Zwaan to perjure herself. As set out earlier, these allegations were rejected by the Court of Appeal. To the extent that Kostyniuk chose not to lead evidence at trial, he cannot be sued in a separate action for this by virtue of the doctrine of absolute privilege: Baker v. Poser at para 19; Web Offset Publications Ltd. v. Vickery, aff’d 1999 4462 (ON CA). Kostyniuk’s remedy was to seek to appeal or set aside the trial decision. LaFramboise appealed the trial decision and lost.

[12] Relying on rule 5.1-2 of the Rules of Professional Conduct of the Law Society of Ontario, LaFramboise claims damages in this action based on allegations that Kostyniuk intentionally suppressed material information that should have been disclosed in accordance with the rule. However, there is no right to sue for an alleged breach of a rule of professional conduct: Reilly v. Johnson and Junger Law Firm, 2016 ONCA 768 at para 10; Ahsan v. Minden Gross LLP, 2024 ONSC 1307 at para 5.

[13] I do not accept LaFramboise’s submission that Kostyniuk owed a duty of care in the Zwaan action, whether in negligence or otherwise. I find that Kostyniuk’s clear duty in the Zwaan action was to pursue his own clients’ interests, not the interests of others: Davidoff (SCJ) at para 22, citing Geo. Cluthe Manufacturing Co. v. ZTW Properties Inc., para 28. Were it otherwise, and subject to limited exceptions that do not apply here, a lawyer would be in a constant conflict of interest between his own client and the opposing party at trial: 9383859 Canada Ltd. v. Saeed, 2020 ONSC 4883 at paras 30-32.

Outcome

[14] Taking everything into account, I am satisfied that this action clearly cannot succeed and should be dismissed as an abuse of process. This is not a close call and I find that there is a clear basis in the statement of claim for applying the attenuated process under Rule 2.1.01 that should be exercised by the court to properly discharge its gatekeeping function: Visic at para 8.

[15] Accordingly, the action is dismissed.

Date: January 20, 2025
M.T. Doi