Court Information

COURT OF APPEAL FOR ONTARIO DATE: 2022-04-27 DOCKET: C69661

BEFORE: Fairburn A.C.J.O., Pepall and Sossin JJ.A.

BETWEEN: Gaurav Tewari Plaintiff (Appellant)

AND: Jennifer Mathers McHenry, Jessica Donen and Mathers McHenry & Co. Defendants (Respondents)

COUNSEL: Gaurav Tewari, acting in person Daniel Iny and Melanie Anderson, for the respondents

HEARD: and released orally: April 22, 2022

ON APPEAL FROM: the order of Justice Catriona Verner of the Superior Court of Justice, dated June 23, 2021, with reasons at 2021 ONSC 4523.

REASONS FOR DECISION

[1] This is an appeal from an order striking the appellant’s claim without leave to amend. The appellant sued his former employer for wrongful dismissal and applied to the Ontario Labour Relations Board for relief. His former employer defended against the claim. The appellant then sued the respondents, the lawyers to the former employer, for various causes of action.

[2] The appellant argues that the motion judge erred in striking his claim without leave to amend. He argues that this was a novel claim and that the respondents should not be immune from liability for their conduct.

[3] The motion judge struck the entirety of the claim against the respondents as their work was covered by absolute privilege. She found that all of the appellant’s claims against the respondents relate to their work in representing the employer in the court claim and counterclaim, and in the Ontario Labour Relations Board proceedings. In other words, the motion judge explained, “all of the claims relate to lawyers’ work done in preparation for a court or tribunal proceeding.” Further, the motion judge noted that “[t]he [appellant] does not contest the fact that all of his claims relate to words spoken or written in contemplation of litigation.”

[4] As well, the motion judge refused to grant leave to amend the claim, finding that the clearest of cases threshold had been met.

[5] In our view, there is no merit to this appeal. The motion judge was right to strike the claim. The respondents had no duty to the appellant. Their interactions were only through litigation and the respondents’ duty in that litigation was to their client, not to the appellant. Nor do we see error in the motion judge’s decision to refuse to grant leave to amend this wholly deficient Statement of Claim. The appeal is dismissed.

[6] Costs will be ordered to be paid by the appellant to the respondents in the amount of $4,500, all-inclusive.

“Fairburn A.C.J.O.”

“S.E. Pepall J.A.”

“L. Sossin J.A.”