SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: C-283-13

DATE: 2014-01-23

RE: ALLISON GARRETT, Plaintiff

AND:

OLDFIELD, GREAVES, D’AGOSTINO, G. EDWARD OLDFIELD, TERRANCE J. BILLO, CATHERINE P. WATSON (CATHERINE P. WATSON PROFESSIONAL CORPORATION), STEIBER BERLACH LLP, ELIZABETH BOWKER, IAIN PECK, GUARANTEE COMPANY OF NORTH AMERICA, TEMPLE INSURANCE, SOUTHEAST GREY SUPPORT SERVICES, IRWIN DOWKER, HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF COMMUNITY AND SOCIAL SERVICES and BUD CARTER, Defendants

BEFORE: The Honourable Mr. Justice D.A. Broad

COUNSEL:
Plaintiff – self-represented

W.H. Peter Madorin, Counsel for the Defendants OLDFIELD, GREAVES, D’AGOSTINO, G. EDWARD OLDFIELD, and TERRANCE J. BILLO

William J. Leslie, Counsel for the Defendants CATHERINE P. WATSON and (CATHERINE P. WATSON PROFESSIONAL CORPORATION)

James Cook, Counsel for the Defendants STEIBER BERLACH LLP, ELIZABETH BOWKER and IAIN PECK

Giovanna Asaro, Counsel for the Defendants GUARANTEE COMPANY OF NORTH AMERICA, TEMPLE INSURANCE, SOUTHEAST GREY SUPPORT SERVICES and IRWIN DOWKER

Heather Burnett, Counsel for the Defendants HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF COMMUNITY AND SOCIAL SERVICES and BUD CARTER

HEARD: January 6 and 7, 2014

ENDORSEMENT

Background and Parties

[1] The plaintiff was formerly employed by the defendant Southeast Grey Support Services (“SEGSS”) as an administrative clerk. SEGGS is a not-for-profit corporation which provides support services for mentally and physically challenged individuals to assist them in finding employment and independent living arrangements in the community. SEGSS receives funding for its operations from the Province of Ontario through the Ministry of Community and Social Services (the “Ministry”). The defendant Bud Carter (“Carter”) was an employee of the Ministry and acted as a supervisor of community and development services at the Ministry's office at London, Ontario.

[2] Following the termination of the plaintiff's employment with SEGSS on August 14, 2008, the plaintiff commenced an action against SEGSS and the defendant Irwin Dowker (“Dowker”) who was the Executive Director of SEGSS at the time of her termination (the “Original Action”). The Statement of Claim in that action (the “Original Statement of Claim”) was issued on April 24, 2009. The defendant Terrance J. Billo (“Billo”) of the firm of Oldfield, Greaves, D”Agostino (“OGD”) acted for the plaintiff at the commencement of the Original Action. When Billo had to withdraw due to illness, the defendant G. Edward Oldfield (“Oldfield”) a partner in OGD took over the conduct of the Original Action and continued to represent the plaintiff until the conclusion of the Original Action, as set forth below.

[3] In the Original Statement of Claim the plaintiff claimed damages for wrongful dismissal, damages for breach of good faith causing mental distress, damage to reputation and humiliation, general damages for negligence related to the presence of alleged mould contamination in the workplace, damages for reprisal under the Occupational Health and Safety Act, R.S.O. 1990, c.O.1, damages for discrimination and harassment in employment under the Human Rights Code, R.S.O. 1990, C.H.19 and special damages.

[4] The Original Action was defended by SEGSS and Dowker and ultimately proceeded to a pretrial. During the course of the pretrial the Original Action was settled and Minutes of Settlement were executed providing for SEGSS and Dowker to pay an all-inclusive sum of $45,000 to the plaintiff in exchange for an executed release from the plaintiff in favor of SEGSS and Dowker. The Minutes of Settlement provided for an order to be taken out dismissing the Original Action without costs. The Minutes of Settlement further provided that the settlement amount of $45,000 was allocated $40,000 to general damages and $5000 in costs, and that otherwise each party would bear their own costs.

[5] The settlement amount in the sum of $45,000 was paid to the plaintiff by SEGSS and the insurers for SEGSS and Dowker, the defendants Guarantee Company of North America (“Guarantee”) and Temple Insurance (“Temple”). Judgment was taken out on consent on September 28, 2012 dismissing the Original Action.

[6] The Defendant Catherine P. Watson (Catherine P. Watson Professional Corporation) (“Watson”) acted for SEGSS and Dowker in the defence of the contract claim in the Original Action. The Defendant law firm of Steiber Berlach LLP (“Steiber”) acted for Guarantee and Temple in defending the insured bodily injury aspects of the Original Action. Elizabeth Bowker (“Bowker”) and Iain Peck (“Peck”) are lawyers with Steiber and each had some degree of involvement with the Original Action, Peck’s being very peripheral.

Claims and Allegations in Current Action

[7] The plaintiff commenced the current action by the issuance of a Statement of Claim on April 3, 2013 (the “New Action”). The Statement of Claim in the New Action comprises 39 pages and 111 paragraphs. The claims advanced by the Plaintiff against the various defendants in the Statement of Claim for the New Action may be summarized as follows:

Defendant(s)

Claim and Amount

Ministry, Carter, SEGSS, Donker, and Watson

Damages for negligence and breach of duty of care - $300,000
Damages for human rights and constitutional violations - $100,000
Damages for conspiracy - $100,000

Steiber, Bowker, Peck, Guarantee and Temple

Exemplary damages for breach of confidence - $150,000
Damages for human rights and constitutional violations - $100,000
Damages for conspiracy - $100,000

OGD, Billo and Oldfield

Damages for negligence, breach of duty and breach of standard of care - $300,000
Damages for human rights and constitutional violations - $100,000
Damages for conspiracy - $100,000

All defendants

Aggravated damages for malice, defamation, breach of confidence and privacy by sending confidential legal and medical information regarding the plaintiff, harassment, extortion and intentional infliction of mental suffering - $300,000
Punitive damages - $500,000

[8] The plaintiff alleges that the Ministry, Carter, SEGSS, Dowker and Watson "owed the plaintiff a duty of care and breached that standard of care" by allowing the plaintiff to become disabled at the workplace failing to ensure a safe work environment, terminating the plaintiff's employment because she became disabled, withholding medical and health benefits from the plaintiff, trying to unsuccessfully have the plaintiff denied unemployment benefits, allowing its proxies to “maliciously character assassinate” the plaintiff, and withholding inspection reports on the premises from the plaintiff. The basis for including the Ministry and Carter as defendants in the action was stated by the plaintiff to be that, because the Ministry provides funding to SEGSS, it is the "employer" of SEGSS.

[9] The plaintiff alleges that Watson, the lawyer representing SEGSS in the Original Action, breached her privacy by disclosing confidential legal and medical information to Steiber, the lawyers for SEGSS’ insurers. She alleged that each of these defendants breached an implied covenant of good faith and fair dealing between employers and employees.

[10] The plaintiff alleges that Steiber, Bowker, Peck, Guarantee and Temple breached her privacy by receiving confidential information about her without her consent, by sending a file with confidential legal and health information to an expert and to others,and by paying an expert for a report which was libelous of the plaintiff. She alleges that Bowker, although not a party in the Original Action, took control of the carriage of it and that "this was with the agreement of the other solicitors."

[11] The plaintiff makes numerous allegations against each of Billo and Oldfield which consist of solicitor's negligence, breach of confidence and breach of privacy. As against Oldfield she alleges that he was in a conflict of interest, was untruthful with her and committed breach of trust by taking funds from the settlement funds received in trust to apply it to his firm's legal account, without an assessment.

[12] Against all defendants, the plaintiff alleges constitutional and human rights violations on the basis that she was denied a fair hearing on the pretrial, that they failed to ensure that she received equal treatment in the provision of services and facilities and discriminated against her because of disability. She alleges that the defendants "knowingly, negligently and recklessly" failed to take action to protect her at a time when they knew she was especially vulnerable and alleges that their conduct was high-handed, outrageous, reckless, entirely without care and was deliberate, callous and disgraceful in disregarding her legal rights under the Human Rights Code and the Charter of Rights and Freedoms.

[13] Plaintiff alleges that the defendants agreed to fabricate and suppress evidence to deceive the Court and subvert the administration of justice, and that the agreement made amongst all or some of the individual defendants constituted an unlawful conspiracy to cause the plaintiff emotional harm, public embarrassment, humiliation, mental suffering and damages.

[14] It is clear that the claims advanced by the plaintiff in the New Action arise firstly, from the identical circumstances which formed the subject matter of the Original Action, and secondly, from the settlement of the Original Action at the pretrial. There are no allegations advanced against any defendant arising out of fresh circumstances not having to do with the subject matter of the Original Action or its settlement.

[15] The following Motions are before the Court:

Date of Motion

Parties

Nature of Motion

Grounds

June 13, 2013

Ministry and Carter

To strike statement of claim

(a) noncompliance with section 7 of the Proceedings against the Crown Act;
(b) Res judicata;
(c) Limitations Act, 2002
(d) discloses no cause of action;
(e) claims are bald, frivolous and vexatious
(f) Rules 21.01(b) and 25.06(1)

July 23, 2013 (Amended August 27, 2013 to include Guarantee and Temple following amendment of Statement of Claim to add them)

SEGSS, Donker, Guarantee and Temple

To strike statement of claim, or in alternative, to dismiss action as an abuse of process or in addition, or in the alternative, summary judgment dismissing action

(a) action barred by the doctrines of res judicata, action estoppel and/or abuse of process
(b) action barred by the terms of executed release in favor of SEGSS and Dowker
(c) discloses no reasonable cause of action
(d) no genuine issue for trial with respect to claims for defamation, breach of confidence and/or breach of privacy
(e) Limitations Act, 2002
(f) Rules 20.01(3), 21.01(b), 21.01(3)(d), 25.11, 25.06 and 57

August 7, 2013

Steiber, Bowker and Peck

Strike statement of claim, or in the alternative summary judgment dismissing claim

(a) discloses no reasonable cause of action;
(b) claims not supported by any or sufficient allegation of material facts;
(c) plain and obvious that the action cannot succeed;
(d) no genuine issue requiring a trial
(e) Rules 21.01(1)(b), 21.03(d), 20, 25.06, 25.11, 26 and 57

August 13, 2013

Watson

Strike statement of claim

(a) discloses no reasonable cause of action and is an abuse of process;
(b) claims not supported by any or sufficient allegations of material facts;
(c) plain and obvious that action cannot succeed;
(d) no genuine issue requiring a trial

November 11, 2013

Plaintiff

Summary judgment against all defendants

(a) no genuine issues requiring a trial re defences of Defendants
(b) Rule 20

Motion by the Ministry and Carter

[16] The Ministry and Carter submit that the Statement of Claim for the New Action should be struck as against them on four bases:

(a) it is a nullity because no Notice of Claim was served on the Crown at least 60 days prior to the commencement of the action, as required by section 7(1) the Proceedings against the Crown Act, R.S.O. 1990, c. P.27 (the “PACA”);

(b) the action is an abuse of process because it seeks to re-litigate issues that were finally decided in the Original Action;

(c) the claim is statute-barred under the Limitations Act, 2002, SO 2002, c. 24, Sch. B, ss 4.5; and

(d) the Statement of Claim fails to disclose a reasonable cause of action.

[17] The plaintiff does not dispute that she did not serve a Notice of Claim pursuant to the PACA.

[18] The authorities make it clear that service of a Notice of Claim pursuant to the PACA constitutes a necessary pre-condition to the right to sue the Crown and that failure to give the required notice renders an action against the Crown a nullity (see Sidhu v. Ontario (Attorney General) 2012 ONSC 6993, [2012] O.J. No. 5846 (S.C.J.) at para. 39 and the cases therein referred to). The provision of the PACA is mandatory and there is no discretion in Crown counsel or the Court to waive the requirement (see Olesiuk v. LeCompte 1991 7313 (ON SC), [1991] O.J. No. 365 (Ont. Ct.(Gen. Div.)) at para. 29). The notice requirement under the PACA extends to claims for vicarious liability (see Beardsley v. Ontario, (2001) 2001 8621 (ON CA), 57 O.R. (3d) 1 (C.A.) at para. 17).

[19] I find that the Statement of Claim is a nullity as against the Ministry and Carter for failure to comply with the notice requirement of the PACA and it should be struck out as against them. In light of this finding, it is unnecessary to deal with the other grounds submitted by them.

Motion by SEGSS, Donker, Guarantee and Temple

[20] SEGSS and Dowker rely on the doctrine of abuse of process and on the limitation period in the Limitations Act, 2002 in seeking to have the Statement of Claim struck pursuant to Rule 21.01(3)(d) or summary judgment dismissing the action granted pursuant to Rule 20. SEGSS, Dowker, Guarantee and Temple all say that the Statement of Claim discloses no reasonable cause of action as against them, and in the alternative, say that the Statement of Claim raises no issue requiring a trial.

[21] It is clear that the plaintiff is attempting, in the New Action, to re-litigate the claims for wrongful termination, negligence in exposing her to mould in the workplace, discrimination and harassment contrary to section 5 of the Human Rights Code and reprisal in the workplace, including opposing benefits, sought by her in the Original Action. The Original Action was settled that a pretrial where the plaintiff was represented by counsel. The plaintiff entered into Minutes of Settlement, having received advice from her counsel, received the settlement funds and executed a full and final release in favour of SEGSS and Dowker. With respect to these claims, it would be an abuse of process to permit the action to proceed against SEGSS and Dowker and their insurers.

[22] The doctrine of abuse of process proceeds from the inherent power of the court to prevent misuse of the court's procedure, which would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. One circumstance in which abuse of process has been applied is where the litigation before the Court is found to be in essence an attempt to relitigate a claim which the Court has already determined (see Toronto City v. C.U.P.E.), Local 79, 2002 CarswellOnt 4328 (S.C.C.) at para. 37, citing Canam Enterprises Inc. v Coles (2000), 2000 8514 (ON CA), 51 O.R. (3d) 481 (C.A.) at paras 55-56).

[23] The claims in the Statement of Claim related to wrongful termination, negligence in exposing the plaintiff to mould in the workplace, discrimination and harassment contrary to section 5 of the Human Rights Code and reprisal in the workplace should therefore be struck as an abuse of process.

[24] The moving parties submit that the claims of the plaintiff against them in the Statement of Claim based upon (a) breach of duty of care and breach of fiduciary duty, (b) breach of privacy and breach of confidence (c) breach of the Charter and the Human Rights Code and (d) defamation disclose no reasonable cause of action and should be struck out pursuant to Rule 21.01(1)(b).

[25] It is well-established that, to succeed under Rule 21.01(1)(b), a defendant must show, on the assumption that the facts alleged in the pleading are true, that it is plain and obvious that the plaintiff's claim will fail because it contains a radical defect (see Hunt v. Carey 1990 90 (SCC), [1990] 2 S.C.R. 959 (S.C.C.) at para33. The rule is designed to test whether a cause of action is reasonable. The focus of the motion is on the substantial legal adequacy of the claim (see Hurst v. PriceWaterhouseCoopers LLP, Canada [2009] O.J. No. 1415 (S.C.J.) at para. 17).

[26] With respect to the claim related to an alleged duty of SEGSS, Dowker, Guarantee and Temple to protect the plaintiff's interests in the settlement of the Original Action based on a breach of duty of care and breach of fiduciary duty, it is noted that the defendants were adverse in interest to the plaintiff in the Original Action, in which she was represented by independent counsel. It is clear that there is no authority to support the proposition that a litigant, or his or her lawyer, owes a duty of care to an opposing party (see Geo. Cluthe Manufacturing Co. v. ZTW Property Inc. 1995 10684 (ON SC), [1995] O.J. No. 4897 (Div. Ct.) at p. 10). Moreover, is also established law that no duty of care is owed by an insurer to a party who is adverse an interest to that insurer's insured. Any duties owed by an insurer are owed to its own insured (see 1013952 Ontario Inc. v. Sakinofsky [2009] O.J. No. 4096 (S.C.J.) at para. 32).

[27] It is well-established that a fiduciary duty is a trust-like duty involving an obligation to put the beneficiary's interest ahead of all other interests (see B. (K.L.) v. British Columbia [2003] 2 S.C.R. 304 (S.C.C.) at para. 40). It follows that SEGSS, Dowker, Guarantee and Temple, being all adverse in interest to the plaintiff, could not have owed any duties of a fiduciary nature to the plaintiff in the context of the Original Action.

[28] In my view, assuming the facts in the Statement of Claim to be true, it is plain and obvious that the claims based upon breach of duty and care and breach of fiduciary duty cannot succeed and therefore do not disclose reasonable causes of action.

[29] With respect to the claims of breach of privacy and breach of confidence, the Statement of Claim alleges that medical records and witness statements relating to the plaintiff were disclosed by SEGSS and Dowker to their counsel Ms. Bowker and Ms. Watson, and in turn these documents were provided to the expert retained by the insurers for SEGSS and Dowker, Guarantee and Temple.

[30] Assuming the facts in the Statement of Claim to be true, they do not support a claim for breach of privacy, the elements of which were set forth in the case of Jones v. Tsige 2012 ONCA 32 (C.A.) at paras. 70 and 71 as follows:

(a) the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns;

(b) the defendant's conduct must be intentional; and

(c) a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish.

[31] Similarly, the facts alleged in the Statement of Claim do not support a claim based upon the tort of breach of confidence, the elements of which were summarized in the case of B.W.International Inc. v. Thomson Canada Ltd. 1996 8182 (SCJ) at para. 18, as follows:

(a) the information must have been necessary quality of confidence about it;

(b) the information must be imparted in circumstances importing an obligation of confidence; and

(c) the defendant must make unauthorized use of the information to the detriment of the party communicating it.

[32] The disclosure by SEGSS and Dowker to their counsel of all documents and information relevant to the issues raised in the Original Action was required by the Rules of Civil Procedure. The allegation that the insurers Guarantee and Temple were not parties to the Original Action and therefore were not entitled to receive documents disclosed in the context of that action is without merit. An insured is entitled to the look to his or her insurer to defend an action brought against him or her pursuant to the contract of insurance, and the insured is obliged to cooperate fully with the insurer in the defence, including providing disclosure of all documents and information relevant to the claim.

[33] Similarly, counsel for the defendant or his or her insurer is entitled to retain and instruct experts and to provide relevant documentation and information to assist the expert in formulating an opinion with respect to the issues in the action.

[34] The allegations of breach of privacy and breach of confidence therefore fail to disclose any reasonable causes of action.

[35] The plaintiff, in the Statement of Claim, alleges that the moving parties have breached her rights under the Charter and the Ontario Human Rights Code by failing to protect her in the course of the Original Action, and in particular, during the pretrial at which the Original Action was settled.

[36] With respect to the claims of the plaintiff based upon the Charter, it is well-established that the Charter has no application to private litigation. It applies only to government action and cannot be used to found an action against a corporation or a private individual. Further, the fact that the organization or corporation is receiving state funding is not sufficient to make that party subject to the Charter (see Cerqueira v. Ontario 2010 ONSC 3954 (SCJ) at paras. 40-41).

[37] The manner in which the plaintiff's rights under the Human Rights Code were breached by the moving parties is not made clear in the Statement of Claim in reference to the conduct and settlement of the Original Action. The moving parties, as adverse in interest to the plaintiff in the Original Action, were not providing services to a larger public of which the plaintiff is a member, nor was there a direct service relationship between them and the plaintiff. The Ontario Human Rights Tribunal has held that the litigation process between adverse parties lies outside its jurisdiction under the Code (see Cooper v. Pinkofskys [2008] O.H.R.T.D. No. 391 at para. 11).

[38] Insofar as the claims under the Human Rights Code in the Statement of Claim are based upon the facts underlying the Original Action, any such claims were released by the plaintiff as against SEGSS and Dowker in the Full and Final Release by which she released any claims based upon "the allegations raised in the action commenced as Court Action number 09-114, commenced in the Ontario Superior Court of Justice at Owen Sound” (which included the same claims under the Human Rights Code. I am permitted to have regard to the Full and Final Release as it is specifically referred to in the Statement of Claim.

[39] The claims founded upon the breaches of the Charter and the Human Rights Code therefore do not disclose reasonable causes of action.

[40] Although reference is made in the body of the Statement of Claim to defamation, no distinct claim based upon defamation is set forth in the prayers for relief at paragraphs 1 to 8 thereof. The claim made in the body of the Statement of Claim appears to be that the moving parties defamed the plaintiff in the context of defending the Original Action by alleging that she was a con artist who suffered from psychological problems and whose home was filled with cat feces. She alleges that these defamatory statements were contained in witness statements and affidavits and were provided to the expert retained on behalf of SEGSS and Dowker in the Original Action.

[41] It is well-established that an action for libel or slander does not lie for words written or spoken in the ordinary course of any proceedings before a court recognized by law, based upon the defence of absolute privilege (see Fabian v Margulies (1985) 1985 2063 (ON CA), 53 O.R. (2d) 380 (C.A.). This principle applies even though the words may have been written or spoken maliciously, without any justification or excuse, or from personal ill will or anger against the party defamed.

[42] Insofar as the plaintiff has advanced claims against the moving parties based upon defamation, such claims do not give rise to a reasonable cause of action.

[43] The moving parties have also brought a motion for summary judgment pursuant to Rule 20 with respect to the plaintiff’s claims of conspiracy and extortion as well as defamation, breach of confidence and breach of privacy.

[44] On the basis of my findings that the claims based upon defamation, breach of confidence and breach of privacy to not disclose reasonable causes of action it is not necessary for me to deal with those claims under Rule 20.

[45] Pursuant to Rule 20.04(2) the court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence. In determining whether there is a genuine issue requiring a trial, the motion judge is empowered to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence, unless it is in the interest of justice for such powers to be exercised only at a trial.

[46] Rule 20.02(2) provides that, in response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in his or her pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial. On a motion for summary judgment, the Court is entitled to assume that the parties have advanced their best case and put forward the evidence on which they rely to make out their case. This places a burden on a party who resists summary judgment to "lead trump or risk losing" (see Byfield v. Toronto Dominion Bank, 2012 ONCA 49 (C.A.) at para. 10).

[47] The moving parties, in support of their motion for summary judgment, led evidence by means of the affidavits of Jackie Rodger, the Senior Claims Examiner with Frank Cowan Company Limited, the managing administrator and authorized agent of Guarantee and Temple, and Irwin Dowker. Ms. Rodger deposed that at no time during the course of the Original Action did the insurers Guarantee and Temple participate in any conspiracy against the plaintiff, nor did they defame her, breach her privacy or confidence, harass her, extort her, force her into settlement, or intentionally inflict any mental suffering as alleged by her. Mr. Dowker deposed similarly with respect to himself and anyone from SEGSS.

[48] The plaintiff led no affidavit evidence or other evidence in response to the motion for summary judgment. Neither Ms. Rodger nor Mr. Dowker were cross-examined on their affidavits, and accordingly, their evidence is not disputed. The plaintiff has therefore not put forward her best case nor the evidence upon which she intends to rely at trial with respect to her claims of conspiracy and extortion on the part of the moving parties.

[49] I am satisfied, based upon the record before the court, that a full appreciation of the evidence and issues required to make a dispositive finding with respect to the plaintiff's claims of conspiracy and extortion can be achieved by way of summary judgment, and a trial is not necessary to achieve such a full appreciation (see Combined Air Mechanical Services Inc. v Flesch 2011 ONCA 764 (C.A.) at para. 50).

[50] Summary judgment shall therefore be granted dismissing the plaintiff's claims of conspiracy and extortion against the moving parties pursuant to Rule 20.

Motion of Steiber, Bowker and Peck

[51] The defendants Steiber, Bowker and Peck have brought a motion striking the claims advanced against them in the Statement of Claim on the basis that they do not disclose the reasonable cause of action with respect to the allegations of conspiracy, extortion, malice, defamation and intentional infliction of mental suffering on the basis that they are not supported by any or sufficient allegations of material facts, and as framed in defamation, that it discloses no reasonable cause of action. They rely upon rules 21.01(1)(b), 21.03(d), 20, 25.06, 25.11, 26 and 27 of the Rules of Civil Procedure.

[52] The moving parties were the lawyers acting for the insurers of SEGSS and Dowker in the Original Action, Guarantee and Temple. As such, their duty was to their clients. The law is clear that a lawyer does not owe any duty in law to a party to a lawsuit who is adverse in interest and was at all material times represented by legal counsel (see Baypark Investments Inc. v. Royal Bank of Canada, (2002) 2002 49402 (ON SC), 57 O.R.(3d) 528 (S.C.J.) at paras. 16 and 32-33).

[53] With respect to the claims advanced by the plaintiff against the moving parties for breach of confidence, human rights and Charter violations, conspiracy, malice, defamation, breach of privacy, harassment, extortion and intentional infliction of mental suffering, the same reasoning as set forth above apply to the plaintiff's claims against the moving parties’ clients Guarantee and Temple with equal force, and the same results follow.

Motion of Watson

[54] As indicated above, Watson acted as counsel for SEGSS and Dowker in the Original Action in reference to the uninsured contract claim, and as such, also represented parties who were adverse in interest to the plaintiff in that action.

[55] Watson has brought a motion for an order striking the plaintiff's claims against her on the basis that they do not disclose a reasonable cause of action, and with respect to the allegations of conspiracy, extortion, malice, defamation and intentional infliction of mental suffering, are not supported by any or sufficient allegations of material facts in the Statement of Claim.

[56] Unlike the defendants SEGSS, Donker, Guarantee and Temple and Steiber, Bowker and Peck, Watson does not seek summary judgment pursuant to Rule 20, but rather relies upon Rules 21.01(1)(b), 21.03(d), 25.11 and 57 of the Rules of Civil Procedure. She did not file any affidavit material but rather relies upon the Statement of Claim and the documents referenced in the Statement of Claim, including the Minutes of Settlement and the Full and Final Release executed by the plaintiff and the Judgment dismissing the Original Action.

[57] Aside from the allegations in paragraphs 32 and 33 of the Statement of Claim, the plaintiff's claims against Watson are identical to those made against Steiber, Bowker and Peck. Paragraphs 32 and 33 alleged that "wanting to injure the plaintiff further," Watson tried to ensure that the plaintiff did not receive employment insurance benefits and that "in a continuing effort to injure the plaintiff" Watson had SEGSS withhold $6,726.94 of the plaintiff's money that was being held in a Health Spending Account.

[58] In Baypark, Lane, J., at para. 33, confirmed that a suit against the lawyer for an opposite party for giving negligent advice to his client and thereby causing damage to the plaintiff is not tenable in law, and that that principle is not confined to litigation, but is also applicable to the commercial world. To hold otherwise would place lawyers in untenable conflict between their duty to their client and their need to protect themselves against their client’s adversary.

[59] It is clear that, as with the defendants Steiber, Bowker and Peck, it is plain and obvious that Watson, as counsel for a party adverse in interest to the plaintiff, owed no duty to her in reference to the matters referred to in the Statement of Claim. The claims against Watson should therefore be struck as disclosing no reasonable cause of action.

[60] Given that the moving parties were all adverse in interest to the plaintiff in the Original Action and the substance of the plaintiff’s claims against them seek to either re-litigate the issues in the Original Action or to re-open the settlement that was reached in the Original Action, I am satisfied that the Statement of Claim, as against them, is not capable of being cured by an appropriate amendment. Accordingly I find that it is appropriate to strike the Statement of Claim as against all of the moving parties without leave to amend and to dismiss the action as against them.

Motion by Plaintiff for Summary Judgment

[61] The plaintiff has brought a motion for summary judgment against all defendants pursuant to Rule 20.

[62] In light of the disposition of the motions brought by all of the defendants other than OGD, Oldfield and Billo, dismissing the action as against them, is not necessary to deal with the plaintiff's motion for summary judgment against those defendants. The plaintiff's motion for summary judgment as against Watson, Steiber, Bowker, Peck, Guarantee, Temple, SEGSS, Dowker, the Ministry and Carter shall therefore be dismissed. This leaves the Plaintiff’s motion for summary judgement against OGD, Oldfield and Billo.

[63] It is noted that the plaintiff filed no affidavit evidence in support of her motion for summary judgment. Her Notice of Motion stated that the material relied upon in support of the motion consists of (a) the pleadings in the action (b) the Motion Records of the defendants, (c) the Affidavit of Documents of the plaintiff, and (d) the Factum and Book of Authorities of the plaintiff.

[64] Rule 20.01(1) provides that a plaintiff may, after the defendant has delivered a statement of defence or serve a notice of motion, move with supporting affidavit material or other evidence for summary judgment on all or part of the claim in the statement of claim.

[65] The new amended Rule 20, which expanded the powers of the motion judge to weigh the evidence, evaluate the credibility of a deponent and to draw reasonable inferences from the evidence, did not change the burden in a summary judgment motion. The moving party bears the evidentiary burden of showing that there is no genuine issue requiring a trial. The moving party must prove this and cannot rely on mere allegations or the pleadings. Each side must "put its best foot forward" with respect to the existence or non-existence of material issues to be tried. The Court is entitled to assume that the record contains all the evidence which the parties would present if there were a trial (see Hino v. Kell, 2010 ONSC 1329 (S.C.J.) at para. 9.)

[66] Oldfield, in his affidavit filed on behalf of himself, OGD and Billo, deposed that he did not in the course of the Original Action, nor did OGD and Billo, participate in any conspiracy against the plaintiff, nor did they defame her, breach her privacy or confidence, harass her, extortion her, force her into a settlement, or intentionally inflict any mental suffering, as alleged by her. He stated that there is no evidence referred to in the plaintiff's summary judgment Motion Record in support of any of those allegations and, in any event, he, Billo and AGD acted throughout with reasonable competence and diligence in the execution of any contractual, or fiduciary obligations which they owed to the plaintiff, and in her best interests.

[67] Oldfield’s evidence, as set forth in his affidavit, was not disputed by any responding affidavit of the plaintiff, nor did she cross-examine him on his affidavit. As indicated, she led no affidavit evidence in support of her motion, nor did she rely on any other evidence such as a Request to Admit, or a discovery or cross examination transcript. In my view, a bald reliance on her own Affidavit of Documents, which simply lists documents which she says are relevant to the issues in the action, without further proof or substantiation, does not constitute "other evidence" for the purpose of Rule 20.01(1).

[68] While acknowledging that this is not permitted, even if one were to view the lengthy grounds set forth in the plaintiff's Notice of Motion as being equivalent to "affidavit evidence" for the purpose of the Rule, they do not satisfy me that I may have a full appreciation of the facts and issues in order to make any dispositive ruling with respect to the plaintiff's claims against OGD, Oldfield and Billo to support giving summary judgment against them. The motion for summary judgment of the plaintiff as against OGD, Oldfield and Billo is therefore dismissed.

[69] For the foregoing reasons, it is ordered as follows:

a) the Statement of Claim as against Catherine P. Watson (Catherine P. Watson Professional Corporation), Steiber Berlach LLP, Elizabeth Bowker, Iain Peck, Guarantee Company of North America, Temple Insurance, Southeast Grey Support Services, Irwin Dowker, Her Majestry the Queen in Right of Ontario as Represented by the Minister of Community and Social Services and Bud Carter be struck out and the action dismissed against them;

b) the Motion for Summary Judgment of the plaintiff be dismissed.

[70] The defendants may make brief written submissions as to costs within 21 days of the release of this Endorsement. The Plaintiff may make brief written submissions in response within 35 days of the release of this Endorsement. Written submissions shall not exceed three (3) double-spaced pages, excluding any Bills of Costs or Offers to Settle. All such written submissions are to be forwarded to me at my chambers at 85 Frederick Street, Kitchener, Ontario N2H 0A7.

[71] Approval by the Plaintiff of the draft Order is hereby waived.

D.A. Broad, J.

Date: January 23, 2014