COURT OF APPEAL FOR ONTARIO

CITATION: Rahman v. Elia Associates, 2025 ONCA 16

DATE: 20250114

DOCKET: COA-24-CV-0609

Roberts, Miller and Pomerance JJ.A.

BETWEEN

Aqib Rahman

Plaintiff (Appellant)

and

Elia Associates, Victor James Yee, Antoni Gabriel Casalinuovo and Richard Anatol Elia

Defendants (Respondents)

Aqib Rahman, acting in person

Tim Gleason and Megan Phyper, for the respondents

Heard: January 7, 2025

On appeal from the order of Justice Ranjan K. Agarwal of the Superior Court of Justice, dated May 29, 2024.

REASONS FOR DECISION

[1] This is an appeal from a decision striking a claim as disclosing no reasonable cause of action.

[2] The appellant is the owner of a condominium unit in a building owned by Peel Standard Condominium Corporation No. 779 (“PSCC 779”). The appellant and PSCC 779 have been embroiled in litigation before various tribunals and courts. At issue on this appeal is the claim brought by the appellant against the lawyers who acted for PSCC 779 in the litigation. The appellant’s statement of claim alleged that the lawyers for PSCC 779 committed fraud, perjury, negligence, and breach of fiduciary duty.

[3] The motion judge struck the appellant’s claim pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The appellant challenges this ruling on appeal.

[4] We see no error in the motion judge’s approach. He applied the governing principles, assuming the pleaded facts to be true for the purposes of the analysis. He found that the appellant’s claim disclosed no reasonable cause of action and could not possibly succeed. This conclusion was unassailable.

[5] Regarding the claim of fraud, the respondents were solicitors representing an opposing party in litigation. Any statements made by the respondents for the purpose of litigation, in the ordinary course of litigation or in documents properly used and regularly prepared for use in the litigation, were the subject of absolute privilege: Salasel v. Cuthbertson, 2015 ONCA 115, 124 O.R. (3d) 401, at para. 35; see also Kokic v. Johnson, 2025 ONCA 4, at para. 7. The rule of absolute privilege extends also to communications made by counsel prior to the commencement of proceedings, that (i) directly concern actual contemplated litigation and (ii) are intimately connected with, made for the purpose of, preparatory to, or incidental to the commencement of proceedings: Salasel, at para. 36. In addition, the immunity of absolute privilege is not limited to actions for defamation: Salasel, at para. 38; see also Kokic, at paras. 1-2, 7.

[6] Here, the statements alleged by the appellant to be fraudulent were made during ongoing litigation or for the purpose of actual contemplated litigation. The statements, made by the respondents on behalf of their clients, were about the very dispute that gave rise to the court proceedings. Therefore, the motion judge correctly ruled that absolute privilege was a complete defence to the allegations of fraud. As he held: “statements made by a solicitor in pleadings or documents filed with the court in a judicial proceeding or in submissions to the court are not actionable.”

[7] The motion judge also found that, even absent absolute privilege, the claim could not succeed because the appellant failed to plead all of the constituent elements of fraud. For example, the appellant’s pleading referred in general terms to “loss” but failed to particularize the details of any loss allegedly caused by fraud. Nor did the pleadings allege reliance on the statements alleged to be fraudulent. We see no error with this aspect of the motion judge’s decision.

[8] On the claim of perjury, the motion judge correctly observed that there is no civil cause of action for perjury: Admassu v. Macri, 2010 ONCA 99, at para. 38.

[9] The motion judge also correctly held that there was no tenable claim in negligence or for breach of fiduciary duty, given that a solicitor owes no duty of care to an opposing party: see Shuman v. Ontario New Home Warranty Program, 2001 CarswellOnt 3666 (S.C.), at para. 25, aff’d 2002 CarswellOnt 2213 (C.A.), leave to appeal refused, [2002] S.C.C.A. No. 366; see also Yan v. Hutchinson, 2023 ONCA 97, at para. 17, leave to appeal refused, [2023] S.C.C.A. No. 203.

[10] While not requested by the appellant, the motion judge also considered whether the appellant should be granted leave to amend his pleadings. We agree with the motion judge’s conclusion that this is “one of those clear cases where leave to amend should be denied.” The deficiency in this case – no legal basis for any alleged cause of action – cannot be cured by amendment.

[11] The appellant argued that the motion judge erred in failing to consider the evidence that the appellant filed. The evidence did not bear on the motion to strike the claim. It was relevant only to the summary judgment motion before the court. Having struck the claim under r. 21.01(1)(b), it was unnecessary for the motion judge to consider the request for summary judgment. Because the evidence had no impact on the outcome of the motion to strike, the motion judge’s failure to refer to it was not an error.

[12] Finally, the appellant argued before us that the motion judge was biased. The record discloses no support for that allegation. The motion judge applied the law to the pleadings before him. His conclusion was firmly rooted in the applicable legal principles. The record discloses no basis for a reasonable apprehension of bias.

[13] The appeal is therefore dismissed. The respondents are entitled to their costs from the appellant, as requested on a partial indemnity basis, in the amount of $6,810.51, all inclusive.

“L.B. Roberts J.A.”

“B.W. Miller J.A.”

“R. Pomerance J.A.”