Court of Appeal for Ontario

Date: 2025-04-07
Docket: COA-24-CV-0857

Coram: L.B. Roberts, Gary Trotter, J. George

Between

Michelle Botosh
Plaintiff (Appellant)

and

Rajka Soric, Rajka Soric Medicine Professional Corporation, Belanger & Assoc. Investigations Inc., Kelly Paul Hart and Mitchell Kent Kitagawa
Defendants (Respondents)

Appearances:

• Michelle Botosh, acting in person
• Justin Martin and Nada Nicola-Howorth, for the respondents, Rajka Soric and Rajka Soric Medicine Professional Corporation
• Stephen Cavanagh, for the respondents, Mitchell Kent Kitagawa and Kelly Paul Hart
• Christian Farahat, for the respondents, Belanger & Assoc. Investigations Inc.

Heard: 2025-04-01

On appeal from the judgment of Justice Marc E. Smith of the Superior Court of Justice, dated September 24, 2024.

Reasons for Decision

Background

[1] In November 2003, the appellant sustained physical injuries when she fell on an uneven curb. The appellant commenced an action against the City of Ottawa and construction companies responsible for the state of the uneven curb that caused her to fall (“the first action”). On August 22, 2013, Warkentin J. granted the appellant judgment in the amount of $334,184.24, with costs of $200,000. The appellant did not appeal this judgment.

[2] On April 20, 2023, the appellant commenced a new action against the respondents (the “2023 action”). The respondents were all part of the defence team in the first action: the defendants’ medical expert who conducted an independent medical examination and opined about the appellant’s injuries; the investigators who were retained by defence counsel to conduct surveillance of the appellant; and defence counsel. In her 2023 action, she claimed several million dollars in general, aggravated and punitive damages for health problems she says were caused by trauma from the manner in which the first litigation was conducted by: the medical expert because of her trial testimony that supported the defence position; the investigators for the manner in which they carried out surveillance; and the lawyers for the steps they took as part of the defence. The motion judge struck out the appellant’s 2023 action without leave to amend and awarded costs on a partial indemnity basis in the amount of $7,000 to each set of respondents.

Grounds of Appeal

[3] The appellant appeals the order striking out her statement of claim without leave to amend. She submits that the motion judge erred by: incorrectly applying the “plain and obvious” test to strike out her claim; finding that the respondents had immunity from suit; and denying her procedural fairness by deciding the motion on its merits without a full record and prior to a defence being filed, as well as by denying her leave to amend her claim. She also seeks leave to appeal the motion judge’s costs order in favour of the respondents.

Analysis

[4] We see no basis to interfere with the motion judge’s decision.

[5] The motion judge properly followed the governing principles applicable to striking out pleadings. There was no need for a fuller record or filed statements of defence. This was not a motion for summary judgment and the record was complete: the pleading and other deficiencies that grounded the motion judge’s decision to strike the pleading were apparent on the face of the statement of claim.

[6] The motion judge’s principal basis for striking the claim without leave to amend is dispositive of this appeal. He concluded that the 2023 action was an abuse of process. In support of that conclusion, it was open to the motion judge to find, correctly in our view, that the appellant’s 2023 claim was a collateral attack on and an attempt to re-litigate Warkentin J.’s 2013 decision because the issues pursued in the 2023 action were raised or could have been dealt with at that trial or on appeal, which the appellant failed to do. As the motion judge noted, the impetus for the appellant’s 2023 action is her unhappiness with the 2013 judgment.

[7] Moreover, we also agree with the motion judge’s conclusion that there was no basis pleaded for her claim of intrusion upon seclusion because she waived any privacy interest in her medical records by bringing her first personal injury action: Baines v. Sigurdson Courtlander Burns and Silverstone Barristers & Solicitors, 2015 ONCA 80, paras. 5 and 6.

[8] Nor was there any basis properly pleaded by the appellant for her claims against the adverse parties’ expert witness, investigators or lawyers for acting on behalf of their clients. It is well-established that witnesses enjoy broad immunity from suit: Samuel Manu-Tech Inc. v. Redipac (1999); Reynolds v. Kingston, 2007 ONCA 166, para. 14. So, too, do lawyers and their agents in acting for their own clients because they generally owe no duty of care or fiduciary duty to an opposing party: Yan v. Hutchinson, 2023 ONCA 97, para. 17. The appellant’s claims as pleaded are not exceptional and do not fall outside the scope of these immunities.

[9] Finally, there is no error in the motion judge’s decision not to allow the appellant leave to amend her statement of claim. Given his reasons for striking out the statement of claim, with which we agree, the motion judge’s determination that no amendments could cure the defects in the appellant’s statement of claim was reasonable and is subject to appellate deference: FNF v. Wag and Train, 2023 ONCA 92, para. 11.

[10] The motion judge’s partial indemnity costs award of $7,000 for each group of respondents was reasonable, fair and measured in the circumstances of this case. The motion judge’s finding that the 2023 action represented an abuse of process and the appellant’s bald allegations of fraud and misconduct against the respondents would have warranted much higher costs on a substantial indemnity basis. We see no basis for appellate intervention with the costs order.

Disposition

[11] The appeal is therefore dismissed. The appellant shall pay to each set of respondents their appeal costs in the following amounts:

• To Rajka Soric and Rajka Soric Medicine Professional Corporation: $5,000;
• To Kelly Paul Hart and Mitchell Kent Kitagawa: $3,750;
• To Belanger & Assoc. Investigations Inc.: $5,000.

“L.B. Roberts J.A.”
“Gary Trotter J.A.”
“J. George J.A.”