Court of Appeal for Ontario

Date: December 6, 2018 Docket: C65233

Justices: Sharpe, van Rensburg and Hourigan JJ.A.

Between

Randeep (Ron) Singh Chatha Plaintiff (Appellant)

and

Satinder Kaur Johal, Akashdeep Rana, Uminder Singh, Jaskaran Singh, Satnam Singh, John Doe Number 1, and John Doe Number 2 Defendants (Respondent)

Counsel:

• Paul Morrison and William Main, for the appellant
• Allison Speigel and Timothy Morgan, for respondent

Heard: October 29, 2018

On appeal from: The order of Justice Robert J. Nightingale of the Superior Court of Justice, dated March 15, 2018.

Hourigan J.A.:

A. Overview

[1] The respondent, Satinder Johal, notarized an affidavit that was later relied upon by a journalist in writing an article about the appellant. As a result of the publication of the article, the appellant sued the respondent and a number of parties asserting various causes of action, including defamation. However, it soon became apparent that he had missed the limitation period for a defamation claim. Consequently, the appellant amended his statement of claim to allege that the respondent was negligent in notarizing the affidavit. That claim was struck without leave to amend on a Rule 21 motion on the ground that it did not disclose a cause of action. These reasons explain why I would dismiss the appeal of the motion judge's order.

B. Facts

[2] This case took place against the backdrop of the recent leadership race in the Conservative Party of Canada (the "CPC"). The appellant was affiliated with the candidacy of Kevin O'Leary; the respondent's father was affiliated with the candidacy of Maxime Bernier.

[3] On March 19, 2017, the respondent notarized an affidavit that was sworn by six affiants (the "Affidavit"). Within the body of the Affidavit an allegation was made that the appellant, in violation of the rules of the CPC, offered to pay for the affiants' memberships in the party. The text of the Affidavit in its entirety is as follows:

I WAS APPROCHED [sic] BY RON CHATHA FROM THE KEVIN O LEARY TEAM TO PROVIDE NAME AND ADDRESS FOR MY SELF AND FRIENDS. SO THEY COULD SIGN UP FOR THE CONSERVATIVE PARTY OF CANADA NOT TO WORRY ABOUT THE FEES AS THEY WILL TAKE CARE OF IT. BUT I DISCUSSED WITH MY FRIENDS THEY SAID THEY HAD TO PAY FOR THE MEMBERSHIP SO WE DECIDED NOT [sic] SIGN UP FOR MEMBERSHIP.

[4] The Affidavit was provided to a journalist at The Globe and Mail. It formed part of a story published on March 19, 2017, which repeated the allegation that the appellant offered to purchase memberships for the affiants. The opening paragraph of that story read:

A signed affidavit provided to The Globe and Mail alleges that one of the conservative leadership candidate Kevin O'Leary's key organizers in the Sikh-Canadian community in Brampton, Ont., offered to pay for party membership – a clear breach of party rules.

[5] The appellant issued a statement of claim on July 11, 2017, wherein he sued the respondent and the deponents of the Affidavit in defamation, publication of injurious falsehoods, and abuse of process. With respect to the respondent, there was a plea that she "knew or ought to have known that she was commissioning a false Affidavit, an act which would clearly be considered professional misconduct under the Rules of Professional Conduct of the Law Society of Upper Canada."

[6] On August 16, 2017, the respondent delivered a demand for particulars that asked, among other things, when and how the appellant first became aware of the article. In an initial response to the demand for particulars, the appellant advised that he first became aware of the article prior to publication, when he was asked to comment on the story by the journalist writing it. Counsel for the appellant clarified on December 11, 2017, that his client first became aware of the published article when it became available online on March 19, 2017.

[7] In his initial response to the demand for particulars, the appellant also advised that four of the deponents had sworn additional affidavits wherein they denied ever meeting him or participating in the activities described in the Affidavit. Further, the appellant advised that two of the deponents had sworn additional affidavits wherein they stated that they did not swear the Affidavit and never met him or the respondent.

[8] There does not appear to be an issue between the parties that, given when the appellant became aware of the article, his defamation claim was statute barred. As a consequence of that fact, on January 16, 2018, the appellant served the respondent with an amended statement of claim (the "Amended Claim"). In this document, the claim for defamation was removed and, in its place, a claim for negligence was added. It is alleged that the respondent was "grossly negligent in her professional duties as a licensed lawyer in the preparation and/or swearing" of the Affidavit. Further, it is alleged that she "failed to meet the standard of a competent, responsible and prudent professional in the circumstances".

[9] The respondent brought a motion to strike the Amended Claim. The motion judge found, among other things, that the appellant had failed to plead a duty of care or plead that there was sufficient proximity between the appellant and the respondent to ground a duty of care. Further, the motion judge found that the respondent, as a lawyer preparing and swearing an affidavit, owed no duty of care to the appellant to ensure its accuracy. The motion judge explicitly found that the negligence claim was merely a "dressed-up" version of the defamation claim that was no longer pled and is statute barred.

[10] In the result, the negligence claim was struck. Given the existence of what the motion judge considered to be incurable defects in the Amended Claim, leave to amend was not granted.

[11] After commencing this appeal, the appellant provided this court with a draft amended statement of claim (the "Draft Amended Claim"). The purpose of this document presumably is to remedy the defects in the Amended Claim. As will be discussed below, this new pleading includes, among other things, a plea that there is sufficient proximity between the parties to establish a duty of care.

C. Analysis

[12] In providing his Draft Amended Claim the appellant has effectively conceded that the motion judge did not err in striking the Amended Claim. The real issue in this appeal is whether the claim in negligence is so fundamentally defective that the motion judge was correct in denying leave to amend.

[13] Counsel for the appellant submits that the motion judge's analysis was flawed because there was no consideration of Ms. Johal's duties as a notary, as opposed to her duties as a lawyer. In so doing, the appellant submits that the motion judge failed to appreciate his actual argument – namely, that the respondent, in her capacity as a notary, owed him a duty of care. The appellant argues that the duties owed by a lawyer acting as a notary are different from the duties owed by a lawyer acting as a lawyer. A lawyer provides advice, legal representation and legal services to a client. The duties of a notary include verifying the identity of the affiant, the place and time of swearing, and that the affiant actually swears that the contents of the affidavit are true.

[14] I am not persuaded by this argument. The Amended Claim contained multiple allegations made against the respondent in her capacity as a lawyer, including an allegation that she drafted the Affidavit. The motion judge properly considered those allegations as part of his duty of care analysis.

[15] I do accept the respondent's submission that the proper analytical approach in reviewing the issue of duty of care is to examine each of her impugned actions to determine whether they can support a claim for negligence. Counsel for the respondent identified four categories of allegations, which I adopt for the purposes of my analysis.

(1) The respondent knew the Affidavit contained false evidence

[16] First, are allegations that the respondent acted negligently because she prepared and notarized the Affidavit, knowing that it contained false evidence. A related claim is that the respondent knowingly allowed one or more imposters to execute the Affidavit. An allegation that a party knowingly took certain actions cannot form the basis of a claim in negligence, as one of the primary functions of negligence law is to compensate accidental victims: Allen M. Linden & Bruce Feldthusen, Canadian Tort Law, 10th ed. (Toronto: LexisNexis Canada, 2015), at p. 117-18. The appellant does not assert any claim based upon an intentional tort. Therefore, the motion judge properly struck these allegations without leave to amend.

(2) The Affidavit was not in a proper format

[17] Second, are allegations that the respondent acted negligently because the Affidavit was not in a proper format. Certainly, there can be no doubt that the Affidavit does not comply with the requirements of r. 4.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for filing in a court. However, it cannot be credibly asserted that had the Affidavit been in a proper format, the reporter for The Globe and Mail would have been less inclined to accept it for use in the story he was preparing. Indeed, the obverse might be true. Again, the motion judge did not err in striking these allegations without leave to amend.

(3) The respondent failed to verify the truth of the contents of the Affidavit

[18] Third, are allegations that the respondent acted negligently because she failed to verify that the contents of the Affidavit were true and accurate. However, the jurisprudence establishes that a lawyer does not owe a duty to third parties to verify the accuracy of the information contained in an affidavit he or she drafts or commissions: Piccolotto v. Kanhai, 2015 ONSC 4807, at paras. 14-16; Gerling Global General Insurance Co. v. Siskind, Cromarty, Ivey & Dowler (2002), 59 O.R. (3d) 555 (S.C.), at paras. 15-16.

[19] There are good policy reasons for this, including that imposing such a duty of care could potentially place a lawyer in a conflict of interest with his or her client. In addition, as a practical matter, it would make even the routine swearing of affidavits a time consuming and prohibitively expensive proposition. In my view, this jurisprudence is persuasive and the duties of a lawyer or notary when commissioning an affidavit should not be expanded as urged upon us by the appellant.

(4) The respondent failed to identify the affiants

[20] Fourth, are allegations that the respondent acted negligently when she failed to identify the affiants before notarizing the Affidavit. In support of these allegations, the respondent relies on Gerling where Nordheimer J. (as he then was) stated at para 16:

The representations which the lawyer makes in commissioning the document are limited to the identity of the deponent, the place and time when the document is sworn and that the deponent has sworn that the contents of the document are true. If any of those representations should subsequently turn out to be untrue, inaccurate or misleading then the issue will become one of whether the lawyer was negligent in the manner in which he confirmed those representations. For example, if a lawyer commissioned a deponent's affidavit without making reasonable inquiries to determine the identity of the deponent, then the lawyer might be liable in negligent misrepresentation to a party who relied on the document if it subsequently transpires that the person who swore the document was not, in fact, the named deponent.

[21] That case leaves open the possibility that a notary/lawyer could be held liable to a third party for not fulfilling his or her duties in verifying the identity of an affiant and/or not having the affiant present when an affidavit is executed. No case law has been provided where such a claim has been asserted. In the present case, as noted above, there is an allegation in the response to the demand for particulars that two of the affiants deny meeting the respondent and executing the Affidavit.

[22] This is a novel cause of action and in order to determine whether a duty of care arises based on this allegation, it is necessary to conduct the analysis mandated by Anns v. Merton London Borough Council, [1977] UKHL 4, [1978] AC 728. This test has been adopted by the Supreme Court of Canada in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 52, and can be paraphrased as follows:

(1) To establish a prima facie duty of care the plaintiff must prove that:

(a) the harm complained of is a reasonably foreseeable consequence of the alleged breach and;

(b) there is sufficient proximity between the parties that it would not be unjust or unfair to impose a duty of care on the defendants.

(2) Before a duty of care will be recognized, there must not be reasons to limit any prima facie duty based on policy considerations.

[23] In my view, leaving aside the issue of foreseeability, there is insufficient proximity between the appellant and the respondent to ground a duty of care. I reach that conclusion for the following three reasons.

[24] First, as the Supreme Court of Canada noted in Odhavji, at paras. 48-50, when assessing proximity a court may examine, among other things, the expectations of the parties, representations, reliance, and the nature of the property or interest involved. In the present case, there was no allegation that the respondent made any representation to the appellant or that there was any reliance on the part of the appellant. In fact, the opposite is true. None of the hallmarks of proximity relied on by our courts are present and there is nothing in the circumstances of this case that would suggest that it is reasonable or fair to impose a duty.

[25] Second, in the Draft Amended Claim, at para. 14.1, the appellant pleads that there is sufficient proximity because:

(a) the Plaintiff was well-known to this Defendant;

(b) this Defendant was a member of the same political and ethnic community in Brampton, Ontario;

(c) the father of this Defendant was a political adversary of the Plaintiff; and

(d) this Defendant herself had an acrimonious relationship with the Plaintiff.

[26] The plea that the appellant and the respondent have an acrimonious relationship militates against a finding that they are in a relationship of proximity. It highlights that they are adverse in interest, which suggest some form of intentional wrongdoing and is inconsistent with negligence and the notion of legal proximity.

[27] Third, the case relied upon by the appellant in support of its claim in negligence, Tondera v. Vukadinovic, 2011 ONCA 596, demonstrates the flaw in the appellant's argument. In Tondera, the appellant affiants claimed that the respondent lawyer, acting in her capacity as a notary, owed them a duty of care when she signed an affidavit in their absence, without ensuring their understanding of the document. In setting aside the motion judge's decision to strike the claim, this court held that the lawyer may owe a duty of care to the affiants in these circumstances, but that evidence would be required to determine the matter.

[28] In the case at bar, it is arguable that the affiants of the Affidavit, like the appellants in Tondera, could assert a negligence claim against the respondent. The relationship between the respondent and the affiants has the hallmarks of proximity, including reliance and a reasonable expectation of the affiants that the respondent would properly exercise her duty as a notary/lawyer. Those elements are absent in the relationship between the appellant and respondent.

(5) Conclusion: A claim in negligence cannot succeed

[29] In summary, a claim in negligence against the respondent cannot succeed and, accordingly the motion judge did not err in striking the claim without leave to amend. The gravamen of the appellant's claim is really that the respondent participated in making false claims against him that found their way into a newspaper story. These actions might ground a claim in defamation or injurious falsehood; they do not form the basis for a negligence claim. In this regard, I agree with the comments of the motion judge that the negligence claim is merely a defamation claim dressed up to avoid a limitation period.

D. Disposition

[30] I would dismiss the appeal and award the respondent her costs of the appeal, fixed in the all-inclusive amount of $11,500.

Released: December 6, 2018

"C.W. Hourigan J.A."

"I agree. Robert J. Sharpe J.A."

"I agree. K. van Rensburg J.A."