DATE: 20050221

DOCKET: C42252

COURT OF APPEAL FOR ONTARIO

MACPHERSON, SHARPE and JURIANSZ JJ.A.

B E T W E E N :

ANDREW MARK ALEXANDER LAWRENCE

Plaintiff (Appellant)

• and -

PEEL REGIONAL POLICE FORCE, CAROL LAWRENCE and THERESA MACLEAN

Defendants (Respondent)

Counsel: Joseph Markin for the appellant Theresa MacLean and Carolyn MacLean for the respondent Theresa MacLean

Heard: February 15, 2005

On appeal from an order of Justice Randall S. Echlin of the Superior Court of Justice dated May 19, 2004.

SHARPE J.A.:

[1] In his statement of claim, the appellant alleges that his spouse Carol Lawrence falsely and maliciously accused him of criminal misconduct while the couple was going through a bitter divorce. He claims damages arising from his arrest, detention, and trial on those charges, of which he was acquitted. This appeal arises from the claim the appellant asserts against the respondent, who was the solicitor for Carol Lawrence in the divorce proceeding. The motion judge struck out the statement of claim pursuant to Rule 21 on the ground that it failed to disclose a reasonable cause of action. For the following reasons, I would allow the appeal and permit the matter to proceed to trial.

[2] The statement of claim makes the following allegations against the respondent:

• Seeking an advantage in the divorce proceedings, the respondent advised Carol Lawrence to fabricate allegations of criminal conduct against the appellant, which the respondent knew to be false or which she ought to have known to be false and was oblivious as to whether or not they were false (para. 9).
• The respondent counselled, directed, advised, and instructed Carol Lawrence to make complaints to the police that caused the police to lay seven criminal charges against the appellant on May 15, 2001 (para. 9).
• The respondent directed Carol Lawrence to lay three additional charges against the appellant on separate occasions between May 15 and September 2002 (the year almost certainly should be 2001). On each occasion, police attended at the appellant’s residence and then left without taking further action or laying charges (para. 12).
• On October 5, 2001, police charged the appellant with two additional offences because of charges laid by Carol Lawrence upon the advice and direction of the respondent (para. 13).
• The respondent advised and coached Carol Lawrence to give false evidence against the appellant in the criminal proceedings in order to gain an advantage in the matrimonial litigation (para. 19).
• The respondent acted with purposeful and malicious intent (para. 20).
• By advising Carol Lawrence to make false allegations and to give false evidence “with reckless disregard for the truth and consequences of such conduct”, the respondent is responsible in law for the harm suffered by the appellant (para. 23).

[3] The respondent moved for summary judgment and to strike the statement of claim as disclosing no reasonable cause of action but then abandoned the summary judgment motion. As the motion proceeded only under Rule 21, the truth of the allegations as pleaded must be assumed.

[4] In my view, the motion judge erred in finding that the facts pleaded in the statement of claim disclose no reasonable cause of action. I am far from persuaded that it is “plain and obvious” that if those facts were proved at trial, the appellant’s claim would be dismissed as unfounded in law.

[5] The test under Rule 21 focuses on the facts that are pleaded. The forms of action have long since been abolished. If the facts as pleaded are capable of supporting a claim in law, the pleading should not be struck merely because the pleader has failed to attach the appropriate legal label to the facts.

[6] The appellant pleads intentional and malicious conduct precisely directed at him by the respondent. In my view, those facts are at least arguably capable of implicating the respondent in several intentional torts, including false imprisonment, malicious prosecution, abuse of process, and civil conspiracy. These intentional torts, unlike negligence, are not defeated by the rule that a lawyer owes no duty to the opposing party in litigation.

[7] The line of cases relied upon by the motion judge holding that a breach of the rules of professional conduct does not give rise to a civil claim by the opposite party (see, e.g., Shuman v. Ontario Home Warranty Program, [2001] O.J. No. 4102 (Sup. Ct.); Bignolio v. Desmarais, Keenan, [1995] O.J. No. 3499 (Gen. Div.), aff’d [1996] O.J. No. 4812 (C.A.)) are distinguishable. Here, the appellant alleges the malicious commission of intentional torts, a claim that does not depend upon the professional rules of conduct governing lawyers.

[8] I recognize that in this case it is not pleaded that the respondent had any direct contact with the police, who imprisoned and prosecuted the appellant. However, no established legal principle prevents a third party from being considered liable as an instigator of an intentional tort. The torts of abuse of process and civil conspiracy are still developing, and their outer limits have not been defined. The legal issues this case raises would be best considered on a full record after trial.

[9] I am conscious of the need to protect lawyers engaged in bitter matrimonial litigation from unfounded claims. Summary judgment remains available to screen out baseless claims. Furthermore, should a claim of this nature proceed to trial and fail, given the very serious nature of the allegations severe costs sanctions could be expected to follow.

[10] We recognize that contentious issues relating to solicitor client privilege may well arise, but they are not a consideration at this stage.

[11] For these reasons, I would allow the appeal, set aside the order below, and award costs to the appellant of $1,500 for the motion and $2,000 for the appeal, both figures inclusive of G.S.T. and disbursements.

“Robert J. Sharpe J.A.”

“I agree R.G. Juriansz J.A.”

MACPHERSON J.A. (Dissenting):

[12] In his endorsement, the motion judge wrote:

When asked to boil the cause of action down to one phrase, Mr. Markin said the claim is for “inducing a false impression”.

Counsel contends that the motion judge misheard him, and that he actually said “imprisonment”, not “impression”.

[13] Even accepting counsel’s submission about what was said, I do not think that it makes a difference. The statement of claim, even read liberally, does not plead false imprisonment.

[14] In addition, the motion judge reviewed the entire pleading and concluded:

I find, having reviewed the pleading only, and having assumed the proof and truth of all allegations for the purpose of this application that Mr. Lawrence has failed to plead a reasonable cause of action.

[15] I do not think that the motion judge erred in reaching this conclusion. The pleadings are vague and general. They refer to some conduct on the part of the respondent, but do not properly translate that conduct into recognizable causes of action.

[16] I would dismiss the appeal with costs fixed at $2000, inclusive of disbursements and GST.

“J.C. MacPherson J.A.”

RELEASED: February 21, 2005