COURT OF APPEAL FOR ONTARIO

CITATION: Kokic v. Johnson, 2025 ONCA 4

DATE: 2025-01-02

DOCKET: COA-24-CV-0881

George, Favreau and Gomery JJ.A.

BETWEEN

Esad Kokic

Appellant

and

Trenton Dempsey Johnson, LLB

Respondent

Esad Kokic, acting in person

Michael R. Kestenberg, for the respondent

Heard: in writing

Determination pursuant to r. 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, with respect to the appeal from the order of Justice Cynthia Petersen of the Superior Court of Justice, dated June 25, 2024.

REASONS FOR DECISION

[1] The respondent is a lawyer who represented two litigants in a successful application brought against the appellant. The appellant appealed that decision, and also filed a complaint with the Law Society of Ontario (“LSO”) about the manner in which the respondent had conducted himself in the litigation. Both the appeal and the complaint were dismissed.

[2] The appellant then commenced an action against the respondent in which he sought punitive damages in the amount of $230,000 and a direction that the LSO commence disciplinary proceedings. In his statement of claim, the appellant alleged that the respondent intentionally misstated facts and made deliberate misrepresentations to the court.

[3] The respondent brought a motion to dismiss this action pursuant to r. 2.1.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as it did not disclose any cause of action recognized in law. The motion judge granted the motion and struck the appellant’s claim, finding that “the [respondent’s] conduct, as alleged in the Statement of Claim, does not constitute a violation of the [appellant’s] rights” and that, as the respondent did not have a solicitor-client relationship with the appellant, even if it were proven that the respondent had engaged in misconduct, it would “not entitle the [appellant] to any remedial order from this court”.

[4] The appellant appeals that order to this court. His appeal has not yet been perfected.

[5] On October 3, 2024, counsel for the respondent sent correspondence to this court’s Intake Office requesting that the appeal be dismissed pursuant to r. 2.1 because it appears on its face to be frivolous, vexatious and an abuse of process. Pursuant to r. 2.1.01(6), this court provided notice to the appellant that the appeal may be dismissed, and invited him to file written submissions. He has not done so.

[6] Rule 2.1 provides “a streamlined procedure for disposing of proceedings and motions that on their face are frivolous, vexatious or otherwise an abuse of process”: Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806, 5 C.P.C. (8th) 280, at para. 43. Its application is “limited to the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading and there is a basis in the pleadings to support the resort to the attenuated process”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8, leave to appeal refused, [2015] S.C.C.A. No. 488. That said, while the circumstances in which it applies are limited, the rule serves an important role in screening out meritless claims that drain the limited resources of the justice system.

[7] In our view, this is a meritless appeal that rests entirely on unsustainable allegations against the respondent. As the motion judge observed, “[the appellant] commenced a legal action against [the respondent] that has no basis in law”, in which he was “effectively trying to have his complaint to the [LSO] and his appeal heard again in a different forum.” We agree with the motion judge’s assessment for three reasons: 1) the respondent did not have a solicitor-client relationship with the appellant, and therefore he owed no duty of care to the appellant; 2) the doctrine of absolute privilege insulates the respondent from liability for communications he made on behalf of his clients and in furtherance of the litigation: see Amato v. Welsh, 2013 ONCA 258, 362 D.L.R. (4th) 38, at para. 34; and 3) the doctrine of collateral attack bars the appellant from commencing another proceeding for the purpose of relitigating issues already decided in another matter, which this clearly is: see Bell v. Fiska, 2022 ONCA 683, at para. 13; Simpson, at para. 41.

[8] For these reasons the appeal is dismissed pursuant to r. 2.1.01.

“J. George J.A.”

“L. Favreau J.A.”

“S. Gomery J.A.”