COURT OF APPEAL FOR ONTARIO

CITATION: Gottlieb v. Stikeman Elliott LLP, 2009 ONCA 60

DATE: 20090122

DOCKET: C48141

Sharpe, Blair and Rouleau JJ.A.

BETWEEN:

Myron I. Gottlieb

Appellant

and

Stikeman Elliott LLP, Peter F.C. Howard, Marvin Yontef, Patrick J. O’Kelly, Elizabeth Pillon, Kathleen G. Ward, Jocelyn Hannah, Michael Ovitz, Roy Furman, Lynx Ventures LP, Robert Webster, Gary Gill, Maria Messina, Chris Craib, Deloitte & Touche, KPMG and KPMG Investigation and Security Inc.

Respondents

Melvyn L. Solmon and Jonathon Kappy, agents for the appellant

Benjamin Zarnett and Sandon Shogilev for the respondents Stikeman Elliott LLP, Peter F.C. Howard, Marvin Yontef, Patrick J. O’Kelly, Elizabeth Pillon, Kathleen G. Ward and Jocelyn Hannah

J.L. McDougall Q.C. and B.R. Leonard for Deloitte & Touche

Joseph M. Steiner and Lawren Murray for KPMG & KPMG Investigation and Security Inc. and Gary Gill

Daniel Bernstein for Maria Messina and Chris Craib

Richard P. Stephenson for Michael Ovitz, Roy Furman and Lynx Ventures LP

Heard and released orally: January 19, 2009

On appeal from the Order of Justice James Spence of the Superior Court of Justice dated November 19, 2007.

ENDORSEMENT

[1] The appellant’s claim, alleging that the defendants conspired to accuse him falsely of fraud, was commenced in the face of on-going criminal proceedings against the appellant in relation to that very fraud. Although the appellant’s claim is cast in terms of conspiracy, the motion judge characterized it as being essentially one of malicious prosecution. He struck the claim on the ground that an essential element, namely, favourable determination of the criminal proceedings, was not pleaded.

[2] Even if the claim is be regarded as one of conspiracy to injure, central to that conspiracy as it is pleaded is the allegation that the appellant was falsely implicated in a fraudulent scheme with which he had been charged prior to bringing this action. We agree with the motion judge that such a claim cannot proceed in the face of the on-going criminal proceedings or in the absence of a determination favourable to the appellant in the criminal proceedings.

[3] Before us, counsel for the appellant argued that within the statement of claim can be read an allegation of a conspiracy to fabricate certain specific evidence and that a cause of action lies even if the appellant is convicted in the criminal proceedings. It is difficult to see how such a claim could be dealt with prior to the determination of the criminal proceedings as it would be impossible to know what, if any, damages the appellant had suffered until he has been acquitted or convicted on the criminal charges.

[4] We need not decide, however, whether such a claim exists in law as even on a broad and generous reading of this detailed statement of claim it simply does not assert this narrower cause of action as a distinct and identifiable claim. The statement of claim is plainly based on the assertion that the respondents falsely accused the appellant of fraud. Even if the narrower and distinct cause of action now advanced in argument exists in law, the “further further amended” statement of claim would have to be entirely recast to plead that cause of action so as to permit scrutiny under Rule 21. Given the history of this matter, there is no basis to give the appellant leave to amend the claim.

[5] As the statement of claim fails to disclose a valid cause of action, ordering that it be stayed pending determination of the criminal proceedings would be inappropriate.

[6] Accordingly, we agree with the motion judge that the claim should be struck out in its entirety as disclosing no cause of action.

[7] The appellant sought to file fresh evidence. In our view, the fresh evidence would have no impact on the outcome of the appeal. As a result, the motion to file fresh evidence is dismissed and the appeal is dismissed with costs to the respondents in the following amounts, inclusive of disbursements and GST:

Stikeman Elliott LLP et al. $19,000

Deloitte Touche $13,000

KPMG et al. $13,000

Michael Ovitz et al. $ 7,500

Maria Messina et al. $ 5,000

“Robert J. Sharpe J.A.

“R.A. Blair J.A.”

“Paul Rouleau J.A.”