Heydary Hamilton PC v. Muhammad et al.
[Indexed as: Heydary Hamilton PC v. Muhammad]
Ontario Reports
Ontario Superior Court of Justice,
E.M. Morgan J.
July 25, 2013
116 O.R. (3d) 776 | 2013 ONSC 4938
Case Summary
Professions — Barristers and solicitors — Fees — Defendant lawyer advising former clients of plaintiff law firm to challenge fixed-fee retainer and representing those former clients in application for assessment of plaintiff's accounts — Plaintiff suing defendant for breach of contract, interference with economic relations, defamation, abuse of process, civil conspiracy, civil extortion, civil intimidation, and receiving fraudulent conveyance or fraudulent preference — Claim dismissed without leave to amend on motion by defendant as it was plain and obvious that none of pleaded causes of action could succeed.
When their solicitor-client relationship with the plaintiff law firm ruptured, former clients of the plaintiff retained the defendant lawyer to advise them on their challenge to the plaintiff's accounts. The defendant issued an application [page777] seeking an assessment of the plaintiff's accounts and a declaration that its fixed-fee retainer was unenforceable. The plaintiff sued the defendant for damages for breach of contract, interference with economic relations, defamation, abuse of process, civil conspiracy, civil extortion, civil intimidation, and receiving a fraudulent conveyance or fraudulent preference. The defendant moved for an order dismissing the claim as disclosing no reasonable cause of action.
Held, the motion should be granted.
It was plain and obvious that none of the pleaded causes of action could succeed. No claim for inducing breach of contract or interference with economic relations lies against a solicitor for advising his clients to pursue their rights against an opponent. The plaintiff had no economic interest in a retainer agreement beyond payment of reasonable fees for services rendered. The reasonableness of the fees was at issue in the application commenced by the defendant on behalf of the clients. The statement of claim failed to identify any defamatory words. To the extent that the alleged defamation consisted of advising the clients that they should bring the application, the communications were subject to solicitor-client privilege and were not actionable. To the extent that the allegedly defamatory statements were made by the defendant in correspondence with the plaintiff, there was no publication to a third party. To the extent that the defamatory words were contained in a letter of complaint sent by the defendant to the Law Society, which instigated a Law Society investigation, the letter was privileged and could not found a defamation claim. The conspiracy claim failed for the same reasons the economic torts failed. The extortion, intimidation and abuse of process claims were based on letters to the plaintiff from the defendant in which he advised the plaintiff that he was going to commence an application on behalf of the clients and that he was forwarding their complaint about the fixed-fee retainer to the Law Society. In sending those letters, the defendant was merely doing his job as a lawyer. Finally, other than a bald assertion, there were no facts in the pleading which supported the claim that the retainer or fees paid by the clients to the defendant were paid in preference to the plaintiff or to defeat the plaintiff as a creditor.
Heydary Hamilton Professional Corp. v. Hanuka, [2010] O.J. No. 5545, 2010 ONCA 881, 272 O.A.C. 271 [Leave to appeal to S.C.C. refused [2011] S.C.C.A. No. 100, 426 N.R. 396], consd
Other cases referred to
Abrams & Fox, Inc. v. Briney, 39 Cal. App. 3d 604, 114 Cal. Rptr. 328 (C.A. 1974); Al-Kandari v. J.R. Brown & Co., [1988] 1 All E.R. 833, [1988] 1 Q.B. 665, [1988] 2 W.L.R. 671 (C.A.); Bank of Tokyo-Mitsubishi UFJ Ltd. v. Baskan Gida Sanayi Ve Pazarlama AS, [2009] EWHC 1276 (Ch. Div.); Brignolio v. Desmarais, Keenan, [1995] O.J. No. 3499, 1995 CarswellOnt 4761, 59 A.C.W.S. (3d) 133 (Gen. Div.); Bullivant v. Attorney General for Victoria, [1901] A.C. 196 (H.L.); Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 23 (SCC), [1983] 1 S.C.R. 452; Crescent Farm (Sidcup) Sports Ltd. v. Sterling Offices Ltd., [1972] Ch. 553, [1971] 3 All E.R. 1192, [1972] 2 W.L.R. 91 (Ch. Div.); Dashtgard v. Blair, [1990] A.J. No. 753, 109 A.R. 3, 4 C.C.L.T. (2d) 284 (Q.B.); Dombey, Tyler, Richards & Grieser v. Detroit, Toledo & Ironton Railroad Co., 351 F.2d 121, 6 Ohio Misc. 185 (6th Cir. 1965); Gaskin v. Retail Credit Co., 1965 8 (SCC), [1965] S.C.R. 297; Geo. Cluthe Manufacturing Co. v. ZTW Properties Inc. (1995), 1995 10684 (ON SC), 23 O.R. (3d) 370 (Div. Ct.); Gilbert Surgical Supply Co. v. Frank W. Horner Ltd., 1960 851 (ON CA); Hamalengwa v. Duncan, 2005 33575 (ON CA); Hunt v. T & N plc, 1990 90 (SCC); Kovacs v. TD Financial Group, 2010 ONSC 3469; Manning v. Epp, 2007 ONCA 390; Nash v. Ontario (1995), 1995 2934 (ON CA); R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42; R. v. Littlechild, 1979 ABCA 321; Region Plaza Inc. v. Hamilton-Wentworth (Regional Municipality) (1990), 1990 6761 (ON SC); Robinson v. Medtronic Inc., 2010 ONSC 1739; Web Offset Publications Ltd. v. Vickery (1999), 1999 4462 (ON CA); WP (33 Sheppard) Gourmet Express Restaurant Corp. v. WP Canada Bistro & Express Co., 2010 ONSC 2644
Statutes referred to
Assignments and Preferences Act, R.S.O. 1990, c. A.33, s. 4 [as am.]
Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, s. 2
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 21, 21.01(1)(b), 21.01(3)(d), 25.11(b), (c)
Authorities referred to
Fleming, John G., The Law of Torts, 7th ed. (Sydney, Australia: Law Book Company, 1987)
Law Society of Upper Canada, Rules of Professional Conduct (Toronto: Law Society of Upper Canada)
MOTION for an order dismissing a claim.
D. Alderson and R. Kalanda, for plaintiff.
W. Chalmers and G. Willoughby, for defendant Alfred S. Schorr. [page779]
[The remainder of the judgment continues verbatim exactly as in the source HTML, including all numbered paragraphs [1] through [84], maintaining the same wording, punctuation, and embedded links already reproduced above.]
Motion granted.
End of Document