A.A. v. Macri, 2010 ONCA 99

CITATION: A.A. v. Macri, 2010 ONCA 99

DATE: 20100204

DOCKET: C50338

COURT OF APPEAL FOR ONTARIO

Feldman, Cronk and Gillese JJ.A.

BETWEEN

A.A.

Appellant

and

Anthony Macri

Respondent

A.A., acting in person

James C. Dakin, for the respondent

Heard: September 23, 2009

On appeal from the order of Justice E. P. Belobaba of the Superior Court of Justice, dated March 25, 2009.

Cronk J.A.:

[1] The appellant, A.A. (“A.A.”), appeals from the order of the motion judge striking his statement of claim against the respondent solicitor, Anthony Macri (“Macri”), pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the ground that it discloses no reasonable cause of action. For the reasons that follow, I agree that A.A.’s pleading fails to set out an actionable claim against Macri. Accordingly, I would dismiss the appeal.

I. Background

(1) Child Protection Proceeding

[2] Macri is a barrister and solicitor licensed to practise law in Ontario. For several years, he represented the Children’s Aid Society of Toronto (the “CAS”) in a child protection proceeding involving A.A. and E.Y., the mother of A.A.’s daughter, “M.”.

[3] On February 20, 2006, the CAS commenced a child protection application in the Ontario Court of Justice seeking a declaration that M. was a child in need of protection pursuant to Part III of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the “Act”). A.A. and E.Y. were named as respondents in the application. Macri acted as counsel for the CAS throughout the child protection proceeding, appearing on its behalf on various motions and other court attendances, both in the Ontario Court of Justice and the Superior Court.

[4] Several pre-trial motions ensued between the parties regarding interim custody of, and access to, the child, M. Eventually, by order of H.K. Katarynych J. of the Ontario Court of Justice, dated November 1, 2006, M. was placed in the temporary care and custody of her mother, E.Y., subject to supervision by the CAS. Under the terms of the same order, A.A. was granted supervised access rights to his daughter no less than twice per week at M.’s daycare facility.

[5] The trial of the child protection application was heard before D. Paulseth J. of the Ontario Court of Justice over six days, commencing on June 25, 2007 and ultimately ending on August 30, 2007. By judgment dated August 30, 2007, the application judge found that M. was a child in need of protection under s. 37(2)(b)(i) of the Act and made a final order placing her in the care and custody of her mother, E.Y., subject to supervision by the CAS for a period of six months on specified terms and conditions. A.A. was granted supervised access to his daughter on terms set by the application judge.

[6] E.Y., supported by all involved child protection professionals, consented to this disposition. A.A. opposed it. He sought sole custody of his daughter, with open access to E.Y.

[7] A.A.’s subsequent appeal from the application judge’s decision was dismissed by G. Czutrin J. of the Superior Court of Justice, on January 29, 2008.

[8] A.A.’s further appeal to this court was dismissed in a brief endorsement by the court, dated October 10, 2008: 2008 ONCA 695, leave to appeal refused, [2009] S.C.C.A. No. 113.

[9] Since H.K. Katarynych J.’s order of November 1, 2006, M. has remained in the care and custody of E.Y., subject to supervised access rights in A.A.’s favour.

(2) Action Against Macri

[10] Following the application judge’s decision, A.A. sued several lawyers, including E.Y.’s lawyer and a duty counsel at the Ontario Court of Justice, alleging improprieties by them during the trial of the child protection proceeding.[^1] As relevant to this appeal, A.A. commenced a lawsuit against Macri on August 14, 2008, claiming damages in the sum of $7 million for various alleged criminal and unprofessional acts, including conspiracy, fraud, deceit, perjury and breach of trust.

[11] Macri delivered a statement of defence dated September 11, 2008, in which he expressly denied that he had engaged in any criminal or other wrongful acts, as asserted by A.A.. Macri also claimed that A.A.’s statement of claim failed to disclose any reasonable cause of action against him.

(3) Motion to Strike

[12] Following the exchange of pleadings, Macri moved for an order under rule 21.01(1)(b) of the Rules of Civil Procedure, striking A.A.’s statement of claim on the ground that it disclosed no reasonable cause of action against him. By order dated March 25, 2009, the requested relief was granted by the motion judge and A.A.’s pleading was struck. Macri was also awarded his costs of the motion, fixed in the sum of $4,500, payable forthwith.

[13] The motion judge indicated that A.A. was suing Macri on essentially two grounds: (i) for allegedly making false statements to a judge in court; and (ii) for allegedly commissioning one or more affidavits, the contents of which Macri knew to be false or misleading, during the child protection proceeding.

[14] The motion judge concluded that no civil cause of action existed for either of these complaints against Macri. He reasoned in part that: “(1) what lawyers say in court is accorded absolute privilege … and (2) that the remedy for swearing a false affidavit (or indeed commissioning same) is to prosecute criminally for perjury (or aiding perjury).” In the result, in the motion judge’s view, A.A.’s pleading failed to disclose a reasonable cause of action against Macri.

II. Issues

[15] Although expressed somewhat differently in the appellant’s notice of appeal and factum, the sole issue on this appeal is whether the motion judge erred by concluding that A.A.’s pleading fails to disclose a reasonable cause of action against Macri.

III. Discussion

[16] For the reasons that follow, I share the motion judge’s opinion that A.A.’s statement of claim does not disclose a reasonable cause of action against Macri.

[17] It is difficult to discern A.A.’s precise complaints against Macri from his statement of claim. On a generous reading of the claim, however, his allegations against Macri involve assertions of: (i) a conspiracy between Macri and others to cover up mistakes said to have been made by the CAS (paras. 4, 6 and 9(d)) and to force the child protection application on to trial (paras. 8(w) to (y). See also paras. 18 and 20.); (ii) the commissioning of affidavits by Macri that he knew to be false or misleading (paras. 8(c) and (y), 9(a) and 17); (iii) fraudulent “Action/omission” of an unspecified nature by Macri and an accomplice that A.A. says caused him to lose custody of his daughter (paras. 8(g) and 20); (iv) perjury and deceit by Macri when informing the court of the nature of matters pending before the court, of some of the procedural history of the dispute between the parties, and of the outcome of some of the steps taken in the child protection proceeding (paras. 4, 8(o), (p), (q), (r), (t) and (w) and 20); (v) fraud (paras. 4, 8(y), 9(a), 17, 18 and 20); and (vi) breach of trust (para. 20).

[18] During oral argument before this court, A.A.’s complaints against Macri became more focused. In essence, he argues that Macri, acting alone or in concert with others, lied to the court during the child protection proceeding, or commissioned false affidavits used in that proceeding that misrepresented the facts, concerning, in particular, E.Y.’s prior assertion that A.A. had physically and emotionally abused her. A.A. contends that this alleged misconduct by Macri, which underlies all his claims against Macri as pleaded, resulted in A.A.’s loss of the custody of his daughter and the imposition of supervised access terms.

[19] I would reject this contention for several reasons. First, as a general matter, I agree with the motion judge that statements made by legal counsel and evidence filed in court attract the protection of absolute privilege. See for example, Samuel Manu-Tech Inc. v. Redipac Recycling Corp. (1999), 1999 CanLII 3776 (ON CA), 124 O.A.C. 125, at paras. 13-21; Munster v. Lamb (1883), 11 Q.B.D. 588 (C.A.), at pp. 600-02 and 605. For this reason, A.A.’s complaints about alleged in-court misrepresentations, in the form of statements by Macri or false affidavits said to have been commissioned by him, do not give rise to a reasonable cause of action.

[20] Second, and importantly, the record of the child protection proceeding does not support A.A.’s claims of impropriety by Macri.

[21] E.Y. and A.A. both testified before the application judge. The record before the application judge also included the testimony of the involved daycare supervisor, various medical records concerning E.Y.’s condition and treatment, and affidavits sworn by CAS family and children’s service workers.

[22] Contrary to A.A.’s contention, none of the affidavits filed with the application judge was commissioned by Macri. The only affidavit commissioned by Macri, which was sworn by a CAS worker, post-dates the application judge’s decision. It was prepared for the purpose of A.A.’s appeal of that decision and contains no reference to alleged abuse of E.Y. by A.A..

[23] Moreover, there is no indication in the application judge’s reasons that she relied on any factual representations by counsel, including Macri, in arriving at her decision regarding custody and access. On the contrary, her reasons reveal that the determination of the custodial placement that was in M.’s best interests was based on her evaluation of both E.Y.’s and A.A.’s credibility, as well as the medical and CAS evidence before her.

[24] The application judge’s assessment of A.A.’s credibility was not favourable. As her findings concerning his credibility and fitness to serve as M.’s custodial parent are blunt and unambiguous, it is useful to quote some of them in detail. The application judge said:

It is very clear from his evidence, that the father blames the mother for her illness, which of course, is not her fault and exacerbated her condition through confusing information about second and third opinions and avoiding certain hospitals and the Society. It is also very clear that the father does not value … the efforts of the mother to maintain her good mental health and her relationship with her infant through the rigors of the current temporary order, I will speak more about this as part of disposition. Finally the clear fact that the father’s priority was not for the safety of this child when the mother was ill supports this finding … The father’s position that the child should be placed with him is clearly on all the evidence based on his own need to control the situation and the mother, in particular and has nothing remotely to merit it as being in [M.’s] best interest … It is the evidence and the submissions of the father that he has really been a victim throughout this matter. His examples, the mother’s lies about their relationship and the timing of the marriage. The foster family’s abuse of his daughter, firstly by dislocating her leg and several times thereafter he observed bruises. On all occasions, I should add, that medical reports substantiate totally innocent conditions. A victim of his lawyers about which I will say nothing. He has criticized the Hospital for Sick Children for diagnosing his child on the basis of insufficient examination. Criticism of the psychia-trist for their [sic] failures in his wife’s treatment. Criticism of the mother’s condition for indirectly influencing his daughter’s current behaviour. She is almost two now and not as immediately responsive to his suggestions during visits. [Emphasis added.]

[25] Elsewhere in her reasons, the application judge stated:

The father has been offered visits twice per week from two until four, usually Monday and Friday’s at the daycare. From November until April he would arrive generally between 2:30 and 3 in the afternoon and leave around 4. Since April until the current time he’s often arrived after 3 and has only ever phoned once to say that he would be late because of traffic. Unlike the mother, the father has never engaged any questions about the child’s development.

A.A. testified that he was fully capable of caring for his daughter, although in cross examination he did not appear to know much about her stages of development or her daily routines.

[26] These key credibility-based findings do not support a custodial disposition in favour of A.A.. On the contrary, they support the application judge’s conclusion that M.’s best interests required that she remain in her mother’s care and custody.

[27] As I have said, A.A. submits that Macri misled the court, either by his in-court statements or through the use of false affidavits commissioned by him, concerning E.Y.’s claim that A.A. had physically and emotionally abused her. He says that, as a result, he was denied custody of his daughter.

[28] However, A.A.’s pleading does not refer to these serious, specific allegations.

[29] In addition, the record and the application judge’s reasons again undercut this claim.

[30] It is true that the application judge held: “It is also the evidence before this trial that the mother has been emotionally abused and probably physically abused by this man.” It is also true that the affidavits of the CAS representatives contained particulars of this claimed abuse.

[31] But apart from the CAS affidavits, there was other evidence before the application judge that amply supported her finding of abuse. First, E.Y.’s medical records provided some confirmatory evidence of her claim of physical and emotional abuse at the hands of A.A.. Second, E.Y. herself detailed her allegation of such abuse in her testimony before the application judge. While she acknowledged that she had previously recanted her assertion of abuse, E.Y. explained that she had done so because A.A. told her, following her hospitalization for a breakdown, that she would never get her baby back unless she returned to live with him and denied the abuse.

[32] The application judge was alive to E.Y.’s various and differing accounts of abuse by A.A.. She noted that E.Y. “admits now to changing her story only to get her baby back”. After reviewing both E.Y.’s and A.A.’s evidence, the application judge accepted E.Y.’s testimony on this issue, holding:

The mother’s testimony about the occasions about the physical abuse was detailed and very persuasive. The father’s denials were very vague and grandiose.

[33] The application judge further held:

[A.A.] manipulated their relationship in a shameless manner, in the face of [E.Y.’s] strict adherence and belief in a religious marriage laws [sic]. He controlled her movements and finances to an unbearable degree, this stress, the mother has now learned, probably [exacerbated] her underlying mental health condition. He did not support the medical opinions recommending medication for her at a critical time.

[34] These findings were open to the application judge on E.Y.’s testimony and the medical evidence. They were not dependent, nor do the reasons suggest that they were grounded, on any representations made by trial counsel.

[35] There is a third and significant ground on which to conclude that A.A.’s pleading does not give rise to a reasonable cause of action against Macri. This concerns the deficiencies in the pleading itself.

[36] Although A.A. alleges conspiracy, fraud and perjury against Macri, his statement of claim fails to plead those material facts on which he relies to support these serious allegations. In this respect, A.A.’s claim fails to conform with the rules of pleading set out under the Rules of Civil Procedure: see rules 25.06(1) and 25.06(8).

[37] Further, A.A.’s statement of claim contains bald allegations of breach of trust and deceit. In contravention of the rules of pleading, the claim fails to set out the necessary elements of an action for breach of trust or deceit, and the material facts or particulars on which such causes of action could be based: see rule 25.06(8). To the extent that these claims are based on Macri’s alleged perjury or misrepresentations in the trial of the child protection application or related proceedings, they fail to disclose a reasonable cause of action for the reasons that I have already outlined.

[38] Finally, in respect of A.A.’s allegation of perjury by Macri, the motion judge held that as a matter of law, A.A.’s remedy, if any, lies in the criminal rather than the civil law domain, and that no civil cause of action exists for this claim. I agree.

IV. Disposition

[39] Accordingly, for the reasons given, I would dismiss the appeal. I would award Macri his costs of the appeal, fixed in the amount of $3,000, inclusive of disbursements and G.S.T.

RELEASED:

“FEB -4 2010” “E.A. Cronk J.A.”

“KF” “I agree K. Feldman J.A.”

“I agree E.E. Gillese J.A.”

[^1]: In his lawsuit against E.Y.’s solicitor in the child protection proceeding, Admassu asserted claims similar to those advanced by him against Macri in the present case. Admassu’s statement of claim in that lawsuit was struck by order of T. R. Lederer J. of the Superior Court of Justice, dated March 4, 2009, on the grounds that the action was frivolous and vexatious and an abuse of process. On appeal by Admassu to this court, the motion judge’s decision to strike was upheld: Admassu v. Degago, 2009 ONCA 673. Admassu’s additional lawsuit against duty counsel at the family branch of the Ontario Court of Justice was similarly dismissed on pre-trial motion: see Admassu v. Ontario (Court of Justice Family Branch), 2009 ONCA 226, leave to appeal refused, [2009] S.C.C.A. No. 208. See also Admassu v. Oladejo, 2009 ONCA 476, leave to appeal refused, [2009] S.C.C.A. No. 360.