Jamal v. Jamal, 2010 ONCA 794

CITATION: Jamal v. Jamal, 2010 ONCA 794

DATE: 20101124

DOCKET: C52146

COURT OF APPEAL FOR ONTARIO

Rosenberg, Moldaver and Karakatsanis JJ.A.

BETWEEN

Sarfraz Jamal, Rizwan Jamal, Faizal Jamal and R&R Forklift

Plaintiffs (Appellants)

and

Abbas Jamal, Imtiaz Jamal, Jamsons Industrial Supplies Inc., Yukta Group Inc., Gregory C. Hertzberger, personally, and Gregory C. Hertzberger, David P. Olsen and A. Kelsey Orth, carrying on the practice of law under the name and style “Hertzberger, Olsen & Associates”

Defendants (Respondents)

John A. Fehrenbach, for the appellants

Ross F. Earnshaw and David Potts, for the respondent Gregory C. Hertzberger

Heard and released orally: November 19, 2010

On appeal from the order of Justice L. M. Walters of the Superior Court of Justice dated April 22, 2010.

ENDORSEMENT

[1] Counsel for the appellants accepted as a correct statement of the law of absolute privilege the statements made by Cullity J. in Moseley-Williams v. Hansler Industries Ltd., 2004 66313 (ON SC), [2004] O.J. No. 5253, and by the Divisional Court in 1522491 Ontario Inc., v. Stewart, Esten Professional Corp., 2010 ONSC 727, [2010] O.J. No. 765 (Ont. Ct. (Div. Ct.)). He submits, however, that the prospect of litigation was so remote from the June 14, 2005 letter that it could not be protected by absolute privilege.

[2] In support of this position counsel for the appellant has taken the court to certain excerpts from the cross-examination of the respondent which he says shows that the litigation was not contemplated at the time of the June 14, 2005 letter. His main contention is based on the chronology and in particular that litigation counsel retained by the defendants did not file a statement of claim.

[3] While the chronology had to be considered, the motion judge took that into account. She accepted the respondent’s affidavit which demonstrates that the letter was a preparatory step taken with a view to judicial proceedings. That letter was immediately followed up with a letter directly to the appellants which confirmed that the letter to the suppliers was sent with a view to judicial proceedings. The findings made by the motion judge at para. 27 of her reasons bring the case within the confines of absolute privilege. While counsel for the appellants has pointed to excerpts in the cross- examination of the respondent that might be relevant to malice and qualified privilege, that testimony does not undermine the findings establishing absolute privilege.

[4] Accordingly, the appeal is dismissed with costs fixed at $8,500 inclusive of disbursements and applicable taxes.

Signed: “M. J. Moldaver J.A.”

“M. Rosenberg J.A.”

“Karakatsanis J.A.”