Golnaz Simaei v. Julie K. Hannaford and JK Hannaford Barristers (Professional Corporation)
CITATION: 2016 ONSC 2046
COURT FILE NO.: CV-13-477848
REASONS RELEASED: 20160329
SUPERIOR COURT OF JUSTICE – ONTARIO
RE:
GOLNAZ SIMAEI
Plaintiff
- and-
JULIE K. HANNAFORD and JK HANNAFORD BARRISTERS (PROFESSIONAL CORPORATION)
Defendants
BEFORE: MASTER D. E. SHORT
COUNSEL: Howard Levitt Fax: 416 363.3100
for plaintiff
Melvyn L. Solmon, Fax: 416 947.0079
for defendants in main action
Lauren P.S. Epstein Fax: 416.598.3730
for Solmon in libel action
Alex Smith Fax: 416.865.7380
for Hannaford defendants
in libel action
Heard: January 28, 2016
Reasons for Decision
“The procedures of the law can be misused, and from this unfortunate truth emerges the idea that the court should have the power to respond to the abuse of its process. This idea has many manifestations.”
[1] On this motion the plaintiff asserts “the sole issue on this motion is whether her wrongful dismissal action should be consolidated with her libel action.”
[2] She submits that consolidating these two actions, “which are inextricably intertwined is fair and just, and will also serve the purposes and principles of Rule 6.01 (1) and Rule 1.04 (1) of the Rules of Civil Procedure…”,
[3] However in the circumstances of this case to consolidate the actions will almost certainly have the consequence of preventing the Defendants’ counsel in the wrongful dismissal action from continuing to represent them.
[4] The Defendants assert that such consolidation would affect an abuse of process.
[5] Thus in evaluating the consolidation request, this court is called upon to determine whether or not the defendants are entitled to continue with their counsel of choice or they will in all likelihood have to retain new representation.
[6] For the reasons that follow I have determined that the motion for consolidation must be dismissed.
I Overview
[7] The Plaintiff is a lawyer. She brings this motion to consolidate two actions. The first, (the "Wrongful Dismissal Action") was brought against Julie K. Hannaford ("Ms. Hannaford") and J K. Hannaford Barristers (Professional Corporation) ("JKHB") (collectively the "Hannaford Defendants"). The action was commenced on May 1, 2013.
[8] The second action was commenced on August 29, 2013 by the Plaintiff against the Hannaford Defendants together with Melvyn L. Solmon ("Mr. Solmon") and Solmon Rothbart Goodman LLP ("SRG") (the "Libel Action").
[9] The Defendants in the Wrongful Dismissal Action oppose the Plaintiffs Motion to Consolidate. They argue that Rule 6.01 is not triggered nor satisfied on the facts of this case. They further assert that there is no legitimate basis for the Court to exercise its discretion to consolidate the two actions.
II. Previous Motion and Settlement of Order
[10] The Plaintiff is a former associate, who was employed at JKHB from approximately May 1, 2009 to March 18, 2013. The Plaintiff alleges she was wrongfully dismissed by the Hannaford Defendants.
[11] Mr. Solmon and SRG are counsel for the Hannaford Defendants in the Wrongful Dismissal Action.
[12] Pursuant to Rule 25.11 of Ontario's Rules of Civil Procedure, the court may strike out all or part of a pleading or any other document with or without leave to amend on the ground that the pleading or document is, in the words of the rule, “scandalous” or “vexatious” or “an abuse of the process of the court”. Rule 25.11 considers the substantive adequacy of the pleading and whether it conforms to the formalities of a proper pleading.
[13] In this case, the defendants originally moved for a number of headings of relief, but primarily to strike large portions of the plaintiff’s Statement of Claim.
[14] I delivered my reasons following the original hearing of that motion, which can be found at 2014 ONSC 7075. Those reasons had the same quotation as their preamble as appears at the outset of these reasons.
[15] The parties encountered difficulties in the settlement of the terms of the formal order based upon those reasons.
[16] In particular, following further argument I addressed in Supplemental Reasons inter alia the impact of the Apology Act, 2009, S.O. 2009, C. 3, on the challenged pleading. Those reasons can be found at 2015 ONSC 5041.
[17] Following the release of those reasons and with that guidance, the parties proceeded to deliver their amended pleadings in original action.
[18] Specifically the Defendants’ pleading in the original action replaced a “pro tem” Defence filed in 2013.
III. Delivery of Pro Tem Defence
[19] In my initial reasons at paragraphs 8 through 21, I set out the background and “procedural fencing” that went on at the commencement of this litigation. That history has a bearing on my disposition of this motion. Nothing has been brought to my attention to change those findings and I therefore rely upon and adopt those prior reasons.
[20] What I regard as important to this motion is that at the beginning of the litigation the plaintiff was insisting upon the prompt delivery of a statement of defence; failing which her counsel indicated an intention to note the defendants in default.
[21] Notwithstanding that the plaintiff and the defendants are all professional and experienced civil litigators and all parties have very experienced counsel there seemed to be an overly technical approach to the timing of early steps in the litigation in its first month of existence.
[22] Mr. Solomon’s firm (“SRG”), filed a notice of change of lawyer (to their firm) on behalf of both defendants on May 28, 2013.
[23] In order to avoid any default actions being taken, the defendants served a “Pro Tem Statement of Defence”. On the date of filing of the pro tem defence, May 29, 2013, counsel for the defendants wrote to the plaintiff’s counsel advising:
This pleading is delivered without prejudice to any of my clients’ rights as a result of the Notice of Motion to strike all or part of the pleading that was served on May 29, 2013.
IV. We’ve Only Just Begun
[24] On May 29, 2013, the Hannaford Defendants served a Notice of Motion for an Order striking portions of the Statement of Claim. The Grounds of the Notice of Motion stated, inter alia that the content of the Statement of Claim:
(a) "May prejudice or delay the fair [trial of action";
(b) "In part is scandalous, frivolous or vexatious";
(c) is “an abuse of process";
(d) is “vague and unfocused’;
(e) "At times is argumentative";
(f) is “redundant and repetitious"; and
(g) "Contains bare unfounded allegations and is scandalous",
[25] On May 30, 2013 the Hannaford Defendants, in the face of a threat by the Plaintiff to note the Hannaford Defendants in default, delivered a Pro-Tem Statement of Defence that denied the substantive allegations in the Statement of Claim and, which pleaded that:
"The Statement of Claim is an improper pleading, containing scandalous allegations, frivolous and vexatious claims, evidence, unsubstantiated causes of action, and irrelevant allegations. The pleading is an abuse of process and was designed to intimidate."
[26] The Plaintiff’s Reply pleading served on June 10, 2013 includes the following paragraphs:
“9. The next day, on Tuesday, May 28, 2013, the Defendants delivered a Notice of Change of Lawyer, appointing new counsel. This time, the Defendants alleged that the Statement of Claim was served on May 6, 2013, and that their Statement of Defence was not due until June 5, 2012, and requested that extension. On that same day, the Plaintiff again requested that the Defendants deliver their Statement of Defence in accordance with the Rules, i.e., Friday, May 31, 2013.
This was appropriate, inter alia, because the Defendants had already defaulted on their own commitment to file a Mediation Brief on a certain date and had defaulted on attending mediation on two occasions. It was already clear that the Defendants' conduct in honouring its own obligations was contumelious.
The next day on Wednesday, May 29, 2013 the Defendants delivered a Notice of Motion seeking to strike all or part of; the Statement of Claim. That Motion is returnable on December 16, 2013 The Defendants' conduct throughout has been for the purpose of and unnecessarily creating delay, expense for the Plaintiff.”
[27] That pleading, having been delivered, meant that the court file now had the plaintiff’s challenged pleading, a perfunctory defence and a Reply all filed in the action’s first 45 days. By June 10, 2013 those pleadings had been filed with the court office and were thus available for any member of the public to inspect.
V. Request for Comment
[28] At that point it was clear that the defendants had not delivered a defence dealing with the substance of the claims as they assert they were “in the midst of conducting a motion to strike what they regarded as the particularly offensive portions of the plaintiff’s statement of claim.”
[29] On the date of filing of the Reply (June 10 2013) Yamri Taddese ("Taddese"), a reporter for the Law Times, contacted Ms. Hannaford and Mr. Solmon requesting a comment in relation to the Plaintiffs allegations in her Wrongful Dismissal Action, with respect to an article which she intended to publish.
[30] In part, her initial email read:
“… I sent your client Julie Hannaford an email today about an article I'm writing and I thought it's best to send you an email as well. My article has to do with Hannaford v, Simaei, a case in which you're representing Julie Hannaford. I was able to read Ms. Hannaford's statement of defence, but I wanted to give her a chance to add anything more to the story I’ll be writing,
As you know, the statement of claim is quite long and includes many allegations. I don't want my article to be about the allegations only and would like to give Hannaford a chance to speak about her thoughts on the allegations, why she believes Simaei would make these allegations against her, and if she is surprised by it. I would really like to write a balanced article on the matter and would appreciate your clients' input and voice. Please let me know if you or Ms. Hannaford will be able to speak to me either today or tomorrow…..”
[31] The responding parties assert in their factum:
On June 11, 2013 Mr. Solmon responded to Ms. Taddese’s email and requested that the reporter not publish the allegations contained in the Statement of Claim until the pleading had been dealt with by the Court and a determination made as to whether any of the pleading should be expunged and not be part of the public record, given that the Motion to Strike had been delivered and further, until a full defence to a proper Statement of Claim had been delivered.
Notwithstanding, on June 24, 2013, the Law Times published an article by Ms. Taddese, entitled "Associate' s claims 'scandalous', lawyer responds in dismissal case". The article was published in the print and online versions of the Law Times.
The Law Times article purported to describe the dispute between the Plaintiff and the Hannaford Defendants. The article quoted and paraphrased allegations from the Statement of Claim and the Pro-Tem Statement of Defence. The Law Times article selectively quoted from portions of the June 11, 2013 email from Mr. Solmon out of context and otherwise misrepresenting the statements made.
On August 29, 2013 the Plaintiff filed a Statement of Claim against the Hannaford Defendants, and Mr. Solmon and SRG alleging the comments were defamatory in the article published by the Law Times on June 24, 2013.”
[32] On September 25, 2013 the Hannaford Defendants filed a Statement of Defence in the new action. They denied the allegations contained in the Statement of Claim and, in particular pled among other defences that the June 11, 2013 emails contained “expressions of opinion in relation to the Plaintiff's Wrongful Dismissal Action that constitute fair comment.” In addition, it also pled that the email was not sent by the Hannaford Defendants, was not malicious nor in bad faith nor intended to defame or disparage the Plaintiff.
[33] It further pleaded that the statements made by Mr. Solmon conveyed contents of court documents, and were protected by qualified privilege.
[34] Now having been sued counsel for the counsel for the Hannaford Defendants filed a separate pleading also on September 25, 2013. There in response to the allegations, among other defences, they denied that statements were intended to disparage the reputation of the Plaintiff, but rather conveyed the contents of court documents.
[35] Further, they pleaded that the June 11, 2013 email was made on the occasion of qualified privilege and not made out of malice or bad faith, and was reasonably necessary in response to the request from Ms. Taddese to write a balanced news story.
[36] It was further pleaded that the email clearly stated to Ms. Taddese that the proper forum to deal with the issues between the parties was the Court and that until the Court determined the propriety of the Statement of Claim, it would be irresponsible to publish a story centred on the allegations in a Statement of Claim under attack in the pending motion.
[37] Before me it was further asserted that:
“Ms. Taddese selectively quoted from the email, Statement of Claim and Pro-Tem Statement of Defence. Mr. Solmon and SRG had no control over how Ms. Taddese chose to frame her article. The Statement of Defence further reiterated that the email was taken out of context by Ms. Taddese.”
VI. Nature of Claims
[38] At this point I note the size and nature of the claims arising from this publication. The resisting parties outline their understanding of the claims now asserted against them:
“29. The Statement of Claim in the Libel Action claims $2 million for libel, $1 million injurious falsehood and $100,000 for punitive damages. In a number of paragraphs in the Statement of Claim and Reply of the Plaintiff, it is alleged that Mr. Solmon acted on his own behalf to bolster his own reputation and the reputation of Hannaford, on behalf of the Hannaford Defendants, with knowledge of both the Hannaford Defendants and Mr. Solmon and SRO, in bad faith, with malice and intending to damage the reputation of the Plaintiff.”
VII. Plaintiff’s Motion for Consolidation
[39] The plaintiff now seeks to have these two actions consolidated noting that both actions are at the same stage in the litigation. The Plaintiff particularly asserts that she “does not have the financial means to fund two separate actions that are intertwined, and she does not have the funds to pay her lawyer's outstanding account.”
[40] Her counsel submits that consolidating the two actions will, amongst other things:
a. avoid multiplicity of proceedings,
b avoid the risk of having different Masters/Justices dealing with the similar issues in different proceedings at various times, which will result in risk of, amongst other things, inconsistent rulings,
c. create a saving in pre-trial procedures; and
d. avoid having the same witnesses testify at two trials
[41] I accept the Plaintiff’s submission that in exercising its discretion under Rule 6.01 (1), the court must be mindful of the direction in Rule 1.04 (1) to interpret and apply the rules so as to "secure the just, most expeditious and least expensive determination of every civil proceeding on its merits". The difficulty I face is determining the proper application of that rule in the unique circumstances of this case.
[42] One of the cases relied upon by the plaintiff was the decision of Justice Quinn in Wood v. Farr Ford Ltd., 2008 CarswellOnt 6116; 171 A.C.W.S.(3d) 77; 67 C.P.C. (6th) 23. There he consolidated two separate actions (the first action was an action for constructive dismissal and the second action was commenced by the employer against the former employee for damages of breach of trust, breach of fiduciary duty, breach of contract, theft, fraud, conspiracy and fraudulent misrepresentation). In his reasons Justice Quinn commented specifically about the purpose of Rule 6:
The customarily expressed purpose of rule 6 is to avoid multiplicity of proceedings, thereby preventing inconsistent dispositions, protecting the scarce resources of the court and saving expense to the parties. However, it also safeguards against a tactical decision to subject a party or parties to more than one action and, therefore, it promotes fairness.
[43] In examining the issue he observes however:
17 Ms. MacKenzie relies upon a passage in Janet Walker, ed., The Civil litigation Process, Sixth Edition (Toronto:
Edmond Montgomery Publications Limited, 2005), p. 419, where it is stated (emphasis added):
Generally speaking the court will order consolidation of actions whenever joinder would have been proper. There are, however, certain exceptions - for example, the court will not order the plaintiffs to consolidate their actions if they are represented by different solicitors.
[44] It would seem to me that the portion emphasised by his honour in the fact situation before me militates against the plaintiff’s position.
[45] Justice Quinn also addressed the difference between consolidating two or more actions versus an order directing that the trial of actions be heard together and stated the following at para. 26:
Although it has been said that "[t]he difference between consolidation and an order directing the trial of actions together is more technical than real" (see The Civil Litigation Process, ibid.), I think the difference can be quite real if the matter is addressed promptly. Actions ordered tried together largely offer a savings of time and money, and enhanced convenience, at the trial stage. However, consolidation provides those features from an earlier stage in the proceedings, including: one set of pleadings, affidavits of documents, discoveries and pre-trial memoranda and one pre-trial.
The existence of a second action also creates a risk that the two will proceed at different speeds, thereby leading to delay while the parties wait for the slower action to catch up.
[46] The Plaintiff submits as well that Rule 6.01 (1) also engages section 138 of the Courts of Justice Act, which mandates the avoidance of multiplicity of legal proceedings "as far as possible". However, for the reasons set out in detail later in these reasons, I am not of the view that the desired consolidation is properly within the realm of the “possible” in this case.
[47] In reaching my conclusion I carefully considered the Plaintiff’s authorities and in particular two cases which had similarities to the present matter. In Griffioen v. Liao, 2003 CarswellOnt 5290, [2003] 0.J. No. 5321, 2003 CanLII 54 (ON SC), 127 A.C.W.S. (3d) 839, 68 O.R. (3d) 535 the court consolidated two actions (the first action was a dispute between two doctors leading to a winding-up proceeding and the second action was a defamation action commenced by the plaintiff against the defendant). In doing so, the court specifically addressed consolidating defamation actions with other actions. The court stated that in both actions, the court will have to examine the history of the relationship between the doctors and the context of their dispute, and that the court will have to hear much of the same evidence from the same witnesses.
[48] In consolidating the actions Justice O’Neill specifically referred to the significance of Rule 1.04 (1 ), and stated:
Examining the issues before me, it should also be borne in mind that in addition to the importance of rule 1.04(1), much of the focus of the Rules of Civil Procedure, and the amendments to these rules, including practice directions, is aimed towards efforts to promote pretrial settlements and resolutions. How can this be accomplished, in the present cases, unless these claims and the counterclaim are consolidated and dealt with together in their journey through the civil litigation system. Furthermore, while I believe that the parties have their right to a day in court, we are asking a little too much of the two principal medical practitioners to have their defamation actions, and the counterclaim, tried in three separate jury proceedings.
[49] However the nature of the parties and claims in the present case are capable of separation and will involve limited duplication if heard separately but by the same judge.
[50] In another of the Plaintiff’s cases, 1632842 Ontario Ltd. v. Great Canadian Gaming Corp., 2009 CarswellOnt 70, Justice Morawetz consolidated two applications into one - the first was an application (later converted into an action by the Court) by the plaintiff against the defendant, and the second was an action commenced by the defendant against the plaintiff. The two proceedings arose out of a contractual dispute about a consulting agreement, and whether the consulting agreement was breached, and also breach of fiduciary duties owed to the defendant. It is asserted by counsel that:
“The Court concluded that in order to determine whether the plaintiff has performed his duties in such a way that the consulting agreement remained in full force and effect, required the court to assess the full factual matrix.”
[51] As well it was submitted before me that the court noted that the proceedings were still at the initial stage, and that both sides would benefit if the proceedings were consolidated. The court stated:
“At this time, both proceedings are at the initial stage. It seems to me that both sides would benefit if the proceedings were consolidated. Consolidation should provide an opportunity for savings in pre-trial procedures. It will also result in a more focused trial which could result in a reduction of the total trial days. Finally, a consolidated proceeding is, in my view, appropriate given the policy of Rule 6.01 and is consistent with the general principle of interpretation as set out in Rule 1.04.
[52] In the present case I am satisfied that both sides will benefit from an initial determination of the extent of liability (if any) in the Wrongful Dismissal Action. The nature of that finding will enable a more focused trial (if necessary) in the Libel Action.
[53] In coming to my conclusion as to the result dictated by the rules and the existing jurisprudence I have considered the dilemma facing counsel at the outset of the first action.
VIII. What was to be done?
[54] Courts have the advantage of hindsight when reviewing the actions of parties and their counsel after the fact.
[55] The key elements of this motion were unfolding in real time. The contents of pleadings are protected by a privilege justified by the need for free access to the courts. That privilege was created long before anyone could even imagine an internet or the now global access to information virtually anywhere in the globe.
[56] The was limited likelihood of a the contents of pleadings being shared far and wide when a trip to the court office was necessary to see what was alleged in an action and to copy elements by hand. What is a barrister to do in the current environment?
[57] I begin by turning to the Barrister’s oath that was taken when all the principals were called to the bar of this province. While recently modified by the Law Society, the oath that I and many others took (with my now emphasis added) reads:
THE BARRISTER'S OATH
You are called to the degree of Barrister-at-law to protect and defend the rights and interests of such citizens as you may employ you. You shall conduct all cases faithfully and to the best of your ability. You shall neglect no man's interest, nor seek to destroy anyone's property. You shall not be guilty of champerty or maintenance. You shall not refuse causes of complaint reasonably founded, nor shall you promote suits upon frivolous pretences. You shall not pervert the law to favour or prejudice anyone, but in all things shall conduct yourself truly and with integrity. In fine, the Queen's interest and your fellow citizens you shall uphold and maintain according to the constitution and law of this Province. All this do you swear to observe and perform to the best of your knowledge and ability ….
[58] In the modern world, in my view that obligation in not only related to what happens in the courtroom.
[59] In light of those responsibilities what is a counsel to do when he believes that a real prejudice is about to be caused in order to protect and defend the rights and interests of his clients?
[60] Is it permissible to stand by and not to attempt to have the matter remain relatively confidential until the pleadings are properly completed?
[61] If it becomes clear that the matter will not be kept out of the press, what is counsel’s duty ensure “the rest of the story” is available?
[62] By seeking to avoid prejudice to a client is counsel risking being removed from the primary role in the courtroom?
[63] Such problems are being presented more often to modern counsel and require novel advocacy skills and approaches.
[64] Against that background I turn to the actual response sent in this case.
IX. Challenged Email
[65] The libel action turns in large part upon the content of the email sent by Mr Solmon in the circumstances described above.
[66] For that reason I feel it is relevant to examine the core of that communication in weighing the appropriate consequences of it being sent. The document reads:
“Dear Ms. Taddese:
Thank you for your emails to both Solmon Rothbart Goodman and my clients.
It is not appropriate to discuss issues in the Press while litigation is ongoing before the courts. My clients’ view is that the allegations in the Statement of Claim are utter nonsense, the Plaintiff has made them knowing she had an absolute privilege concerning false statements set out in the Statement of Claim, and she knows that her claims cannot be supported.
The appropriate forum for dealing with the performance of the Plaintiff, during her employment at the Defendant Firm, is in the Court. The first determination will be made on December 16, 2013. A motion is brought by the Defendants to strike significant portions of the Statement of Claim on the basis that they are scandalous in law and constitute a severe abuse of process, designed to prejudice or delay the fair Trial of this action.
Your decision to write about this Claim prior to the Court making a decision does not fit within the new defence of responsible communications on matters of public interest. Further, you cannot properly write a story until a full defence is filed. Only after the Court’s decision, concerning the Motion will my clients be able to deliver an appropriate Statement of Defence in reply to a much changed Statement of Claim. At present, the Statement of Claim is, as a matter of law, incomprehensible.
[67] Mr. Solmon continues:
“I asked the Plaintiff’s lawyer for some documentation referred to in the pleading so that my clients could have all the evidence, to which they were entitled, for the Motion. He refused to provide it in a timely manner, and instead threatened to take default proceedings against my clients. My clients had no alternative but to file a pro tem defence. The law must be that the concept of responsible communication does not require a defendant’s lawyer to risk a libel action, and responding to a privileged document.”
[68] It would seem that this letter largely repeats what was contained in the pro tem defence and refers to words such as “scandalous” and “abuse of process.” Which are the specific terms contained in Rule 25, and which were relied upon in the Hannaford Defendants’ Notice of Motion, which had also been filed with the court.
[69] To the extent that assertions outside the pleadings are made it would seem clear that they are stated by Mr. Solmon at the outset of his letter as: “My clients’ view…is that the allegations in the Statement of Claim are utter nonsense”.
[70] To the extent the press story contains items beyond the content of the email that might give rise to a complaint against the newspaper, but I understand it has not been sued.
[71] Against that background the plaintiff now seeks to have both actions consolidated
X. Barrister’s Immunity?
[72] At this stage I am not asked nor in a position to prejudge the outcome of the Libel action, but in evaluating the possible disqualification of counsel I believe it is appropriate to consider potential problems with the Libel Action.
[73] In reflecting upon the issues in this motion I also considered the common law doctrine of Barrister’s immunity. While I have not based my decision on the impact of the concept, as it was not directly raised by counsel on the motion, I have taken notice of the genesis of that protection, in exercising my discretion in this case.
[74] A detailed discussion of the concept was set out Justice Cronk in the Court of Appeal’s decision in Amato v. Welsh, 2013 ONCA 258; 305 O.A.C. 155; 362 D.L.R. (4th) 38; 226 A.C.W.S. (3d) 141; 2013 CarswellOnt 4744:
“Doctrine of Absolute Privilege
34 The nature and scope of the doctrine of absolute privilege lies at the heart of this appeal. That this doctrine is well-established at common law is beyond dispute. This court has repeatedly endorsed the definition of the doctrine set out in Halsbury's Laws of England, vol. 28, 4th ed. (London, U.K.: Butterworths, 1997), at para. 97, which reads:
Absolute privilege. - No action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognised by law. The evidence of all witnesses or parties speaking with reference to the matter before the court is privileged, whether oral or written, relevant or irrelevant, malicious or not. - The privilege extends to documents properly used and regularly prepared for use in the proceedings. Advocates, judges and juries are covered by this privilege. - However, a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings.
A separate action for malicious prosecution or the malicious institution or abuse of civil proceedings may lie independently of the law of defamation. [Citations omitted.]
This definition was adopted in Samuel Manu-Tech, 1999 CanLII 3776 (ON CA), [1999] O.J. No. 3242 at para. 19; Lowe v. Guarantee Co. of North America (2005), 2005 CanLII 80693 (ON CA), 80 O.R. (3d) 222 (C.A.), at para. 57; and Reynolds, at para. 14.”
[75] Cronk J.A. also observes in Amato that:
“41 In England, for some 200 years, the common law conferred immunity on barristers for liability in negligence suits brought by a client in respect of a barrister's conduct of civil or criminal litigation. As with the doctrine of absolute privilege, judicial recognition in England of this immunity was anchored in the public interest in the integrity of the administration of justice.
[76] The extent of the application of the concept was examined by the House of Lords almost 50 years ago in Rondel v. Worsley , [1967] 3 W.L.R. 1666; [1969] 1 A.C. 191.
[77] A court consisting of Lord Reid, Lord Morris of Borth-Y-Gest, Lord Pearce, Lord Upjohn and Lord Pearson focused on whether Barrister’s could be liable to their clients for negligence in the handling of court cases. While they held at that time actions for negligence again barristers could not succeed, in the course of their reasons they however considered the barrister’s immunity concept generally and the policy justifications for specific instances of that immunity.
[78] By way of historical completeness I note that in the 1980’s, the approach of the English courts to advocates' immunity from professional negligence claims began to shift significantly. In Saif Ali v. Sydney Mitchell & Co., [1980] A.C. 198, a majority of the House of Lords clarified that the immunity extends only to the conduct of the client's cause in court, and to pre-trial work intimately connected with it: per Lord Wilberforce, at p. 215, citing Rees v. Sinclair, [1974] 1 N.Z.L.R. 180 (C.A.), at 187. Then in this century the House of Lords in Arthur J.S. Hall & Co. v. Simons, [2002] 1 A.C. 615, held that there are no public interest grounds -- including those previously identified in Rondel -- that justify retention of advocates' immunity from suit for the negligent conduct of civil proceedings.
[79] Those cases did not however alter the other forms of immunity discussed in Rondel. In his reasons in that case Lord Pearce observes:
In Munster v. Lamb, [11 Q.B.D. 588] however, the matter clearly came up in respect of a solicitor’s protection as an advocate in respect of slander. There it was plainly assumed in his favour that he was entitled to the same protection as counsel when acting in court as an advocate. It was argued on his behalf that though his conduct was improper “his words were protected from being made the subject of an action, by reason of his privilege as an advocate.” Mathew J. then went on to consider cases dealing with the position of a judge and witnesses and counsel, clearly equating the solicitor advocate to counsel. In the Court of Appeal, Brett M.R. said: [Ibid. 599, 600.]
“This action is brought against a solicitor for words spoken by him before a court of justice, whilst he was acting as the advocate for a person charged in that court with an offence against the law.”
And:
“I cannot find that there has been a decision of a court of law with reference to such facts as are now before us, that is, with regard to a person acting in the capacity: of counsel: but there have been decisions upon analogous facts; and if we can find out what principle was applied in these decisions upon the analogous facts, we must consider how far it governs the case before us.”
The chief point of the case was whether the advocate’s immunity was a limited or a complete immunity covering all remarks whether bona fide or malicious, relevant or irrelevant. Brett M.R. decided that it was the latter, basing all his reasoning on the assumption that the solicitor advocate had the same protection as counsel. He gave as his reasons for the decision:
“A counsel’s position is one of the utmost difficulty. He is not to speak of that which he knows; he is not called upon to consider, whether the facts with which he is dealing are true or false. What he has to do, is to argue as best he can, without degrading himself, in order to maintain the proposition which will carry with it either the protection or the remedy which he desires for his client. If amidst the difficulties of his position he were to be called upon during the heat of his argument to consider whether what he says is true or false, whether what he says is relevant or irrelevant, he would have his mind so embarrassed that he could not do the duty which he is called upon to perform. For, more than a judge, infinitely more than a witness, he wants protection on the ground of benefit to the public. The rule of law is that what is said in the course of the administration of the law, is privileged; and the reason of that rule covers a counsel even more than a judge or a witness.”
[80] With respect to the role of the Press he observes :
“And on the fringe of the judicial process is the Press, which may with impunity spread damaging libels provided that they are a fair and accurate report of judicial proceedings - a valuable and necessary immunity on grounds of public policy, yet one which sometimes causes great and unfair hardship. This is not an immunity designed to protect the Press for their personal benefit. It is an acknowledgment that they have an important function in informing the public of what is happening in courts of law and they cannot perform that function properly if they have to look over their shoulder at the possibility of writs for libel, which might deter them from informing the public.”
[81] In particular Lord Pearce made these comments with respect to the extent of protection concerning allegedly defamatory statements:
“The courts might have limited the protection to things which are relevant and necessary to the matters in issue and spoken bona fide. But so important has it considered the functioning of the judicial process that it has given a complete immunity even to words spoken mala fide or maliciously or irrelevantly….
Some may think that this is a mistaken view, in that it creates many hardships for which there is no relief. But it has been consciously and consistently (and, as I think, rightly) adopted by the courts of this country, regardless of the hardship that it often causes, in order that a greater ill may be avoided, namely, the hampering and weakening of the judicial process.”
[82] At page 271 of his reasons found at [1969] 1 A.C.191, Lord Pearce returns to Munster and notes:
“The law has given the advocate complete immunity for what he says in court (Munster v. Lamb ). Mathew J. there said:
”It may be inconvenient to individuals that advocates should be at liberty to abuse their privilege of free speech, subject only to animadversion or punishment from the presiding judge. But it would be a far greater inconvenience to suitors if advocates were embarrassed or enfeebled in endeavouring to perform their duty by fear of subsequent litigation. This consequence would follow, that no advocates could be as independent as those whose circumstances rendered it useless to bring actions against them.”
On those grounds one must obviously continue to preserve counsel’s independent immunity from liability for putting forward against the other side defamatory contentions which may afterwards prove to be baseless. (If he puts them forward without any reasonable grounds he will in fact get into trouble from professional discipline).
One must obviously, I would think, continue to preserve the client likewise from liability for wrongly causing such contentions to be put forward by his advocate, great as may be the harm that they may cause.”
[83] I regard the House of Lords guidance as indicating that at least in the United Kingdom there is absolute immunity of barristers in situations involving alleged defamation by counsel. I now turn to Ontario cases in this area
XI. Ontario Jurisprudence
[84] Earlier I referred to the Court of Appeal’s decision in Amato v. Welsh, 2013 ONCA 258; 305 O.A.C. 155; 362 D.L.R. (4th) 38; 226 A.C.W.S. (3d) 141; 2013 CarswellOnt 4744. Writing as member of the Court with D.R. O'Connor A.C.J.O. and Simmons, J.A., Justice Cronk observed:
35 The doctrine has its roots in the early development of the law of defamation. However, in its modern form, its reach is considerably broader. Relying on Hargreaves v. Bretherton and Another, [1958] 3 All E.R. 122 (Q.B.D.), at 123, Feldman J.A. for this court in Samuel Manu-Tech confirmed, at para. 20, that: "[t]he immunity extends to any action, however framed, and is not limited to actions for defamation." See also Lowe, at para. 58.
36 Historically, public policy considerations, including the need to foster confidence in the administration of justice, have been viewed as justifying an absolute privilege protecting counsel and others from suits based on what is said by them in court. There is authority for the proposition that the justification for absolute privilege is acute in cases involving statements made by counsel: see Dooley v. C.N. Weber Ltd. (1994), 1994 CanLII 7300 (ON SC), 19 O.R. (3d) 779 (Ont. Ct. (Gen. Div.)), per Reilly J., at 784 - 785; More v. Weaver, [1928] 2 K.B. 520, [1928] All E.R. Rep. 160 (Eng. C.A.), per Scrutton L.J., at 522; Munster v. Lamb (1883), 11 Q.B.D. 588 (Eng. C.A.), per Brett M.R., at 603 - 605.
37 Protection of the integrity of the justice system lies at the core of the public policy rationales for absolute privilege. As explained by the majority of the High Court of Australia in Mann v. O'Neill, [1997] H.C.A. 28, 71 A.L.J.R. 903, at 907:
[A]bsolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process. It is necessary that persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal representatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings. Were civil liability to attach or be capable of attaching, it would impede inquiry as to the truth and justice of the matter and jeopardise the "safe administration of justice". [Citations omitted. Emphasis added.]
38 Thus, where applicable, the doctrine of absolute privilege affords complete immunity to advocates and others for statements made by them in the course of judicial or quasi-judicial proceedings. This extraordinary protection operates to bar a cause of action otherwise available at law: i.e., a claim for relief by a client who has suffered loss through the negligence of his or her counsel. For this reason, the High Court of Australia has warned that any extension of the privilege is "viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated": Mann, at p. 907, citing Williams, "Absolute Privilege for Licensing Justices", (1909) 25 Law Quarterly Review 188 at 200 (other citations omitted). I would echo these words of caution.
[85] More recently, David Brown, JA. dealt with issues arising from a letter sent by litigation counsel in Salasel v. Cuthbertson, 2015 ONCA 115; 2015 CarswellOnt 2274; 249 A.C.W.S. (3d) 351:124 O.R. (3d) 401; 381 D.L.R. (4th) 632; 329 O.A.C. 324
[86] That case was heard by A. Hoy A.C.J.O., K.M. van Rensburg and D.M. Brown JJ.A. in early 2015 and again addressed elements of immunity. In that case the appellants, appealed from the Judgment of Justice Edward Morgan dated May 20, 2014, in which he dismissed their action against the respondent physicians pursuant to Rule 21.01(3)(d) of the Rules of Civil Procedure.
[87] The facts of the case were publicized in the national press. Briefly I note that in October, 2010, Mr. Rasouli suffered debilitating complications following surgery. He was kept alive by mechanical ventilation. The respondents were Mr. Rasouli's treating physicians. They recommended the withdrawal of mechanical ventilation from Mr. Rasouli. His family opposed that decision.
[88] As a result of that disagreement, two applications proceeded through Ontario’s courts to the Supreme Court of Canada which, in its October, 2013 decision, held that the physicians were required to seek the subsided decision maker’s consent to the withdrawal of the life-sustaining measures, failing which there had to be a ruling by the Consent and Capacity Board.
[89] The Supreme Court of Canada heard the appeal in those proceedings in December, 2012. On January 21, 2013, the appellants commenced this action. In it Mr. Rasouli sought $1 million in special damages and $1 million in general, aggravated and punitive damages for intimidation, assault, negligence, abuse of process, breach of contract and breach of fiduciary duty.
[90] The respondent physicians brought a motion under Rule 21.01(3)(d) of the Rules of Civil Procedure to stay or dismiss the action on two grounds. As a second ground (which is relevant to the present matter) the respondents contended that the balance of the claims were frivolous, vexatious or an abuse of process in that they were barred by the doctrine of absolute privilege.
[91] The motion judge accepted the respondents' submissions, found that the appellants' claims were barred by the doctrines of issue estoppel and absolute privilege, and dismissed the action.
[92] In bringing their action the appellants relied upon the contents of a letter sent by Mr. Underwood, who was counsel for the treating physicians.
[93] In addressing the second issue which was stated as “did the motion judge err in dismissing the rest of the appellants' claims on the ground that they were barred by absolute privilege” Justice Brown observed:
23 The motion judge dismissed the balance of the appellants’ claims on the basis that the event upon which those claims rested -- a January 24, 2011 letter written by Mr. Harry Underwood, counsel for the respondent physicians, to counsel for Ms. Salasel (the "Underwood Letter") -- was protected from suit by absolute privilege. The appellants submit that it was far from clear or obvious that the Underwood Letter was written on an occasion of absolute privilege and the motion judge erred in not allowing their claims based on that letter to proceed to trial.
[94] The Underwood Letter stated in part:
“The critical care physicians at Sunnybrook, for some of whom we act, have determined that they will not continue to offer extraordinary care (mechanical ventilation) to Mr. Rasouli. We understand that the Rasouli family, for whom you act, does not accept this decision and intends to bring an application for an injunction to require the continuation of the treatment pending an application to the Consent and Capacity Board.”
[95] The Court of Appeal’s reasons continue:
25 In their Statement of Claim and Factum the appellants characterized the Underwood Letter as a threat to kill Mr. Rasouli upon which they based their claims for intimidation, assault, negligence, abuse of process, breach of contract, breach of fiduciary duty and intentional infliction of mental suffering. The centrality of the Underwood Letter to the remaining claims of the appellants was noted by the motion judge in his reasons:
[34] Counsel for the Plaintiffs concedes that had the doctors simply brought their own court application for a declaration that they have authority to withdraw treatment, without having their lawyer send a letter to that effect, there would be no threatening or otherwise tortious conduct. The entire claim turns on the fact that their lawyer first wrote a letter.
26 The motion judge concluded that the Underwood Letter was protected by absolute immunity because it was intimately connected to a judicial proceeding -- the Prior Proceedings -- the institution of which was being seriously considered by the respondents. He held that in those circumstances it was an abuse of process to bring this action in violation of the doctrine of absolute immunity.
[96] The court then referred to that Court’s previous decision relating to Absolute Privilege in Amato (supra):
35 The doctrine of absolute privilege contains several basic elements: no action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognised by law; the privilege extends to documents properly used and regularly prepared for use in the proceedings; and, a statement will not be protected if it is not uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings: Amato v. Welsh, 2013 ONCA 258, at para. 34.
[97] Unlike the present case the Underwood letter was sent before there was a pending action. However there was not yet a complete Statement of Defence filed. Justice Brown notes:
“36 At issue in this case is a communication made by counsel for the respondent physicians before the actual commencement of legal proceedings. As noted by Cullity J. in Moseley-Williams v. Hansler Industries Ltd. (2004), 2004 CanLII 66313 (ON SC), 38 C.C.E.L. (3d) 111 (Ont. S.C.), aff'd [2005] O.J. No. 997 (Ont. C.A.), Ontario has adopted a broader application of the rule of absolute privilege to such pre-suit statements than jurisdictions such as British Columbia, Alberta and England. The scope of the Ontario rule was summarized comprehensively by the Divisional Court in 1522491 Ontario Inc. v. Steward, Esten Professional Corp., 2010 ONSC 727, 100 O.R. (3d) 596, at paras. 37 and 39 to 44:
“[37] In Ontario, absolute privilege may extend to communications by a party's solicitor made before the actual commencement of proceedings.
[39] As Cullity J. points out in Moseley-Williams, the following statement from Fleming has been referred to with approval in Ontario decisions:
The privilege is not confined to statements made in court, but extends to all preparatory steps taken with a view to judicial proceedings... But the statement or document must be directly concerned with actual contemplated proceedings.
[40] However, Cullity J. also found that the authorities do not appear to support an extension of the privilege to all occasions when the possibility of litigation is contemplated, or even when a threat of litigation is made, or when a lawyer is endeavouring to assert and protect a client's rights.
[41] Thus, when a defendant in these circumstances moves to dismiss the claim on the ground of absolute privilege, the decision the court has to make is whether the communication was made "for the purpose of, or preparatory to, the commencement of [judicial] proceedings".
[42] Something more than merely a contemplation of the possibility of litigation is required. The court must decide whether the occasion is "incidental" or "preparatory" or "intimately connected" to judicial proceedings and not one that is too remote.
[43] It is in this sense that Cullity J. accepted that "... some inquiry into the purpose of their publication would appear to be unavoidable"... That case dealt with a motion for judgment under rule 20. On a rule 21.01(1)(b) motion, the "inquiry" is made on the assumed truth of the facts pleaded in the statement of claim.
[44] It must be stressed that "it is the occasion, not the communication, that is privileged. The privilege belongs to the occasion by reason of the setting." [Citations omitted; emphasis in original.]”
Determining whether an occasion is preparatory to, or intimately connected with, judicial or quasi-judicial proceedings involves, as Cullity J. aptly put the matter in Moseley-Williams, at paras. 57 and 58, an exercise of ascertaining where a line is to be drawn so that the degree of connection between the occasion and the judicial proceeding is not too remote.”
[98] Ultimately with respect to the Court of Appeal’s decision I am guided by two further extracts:
“Availability of absolute privilege in non-defamation actions
38 First, the appellants submit that the doctrine of absolute privilege for pre-litigation communications only precludes the bringing of defamation claims in respect of the communication. That is not correct. As stated by this court in Samuel Manu-Tech Inc. v. Redipac Recycling Corp. (1999), 1999 CanLII 3776 (ON CA), 124 O.A.C. 125, at para. 20, the immunity afforded by absolute privilege "extends to any action, however framed, and is not limited to actions for defamation".…
45 Placed in that context, the Underwood Letter communicated the physicians' views on treatment and discussed some of the mechanics involved in resorting to the courts to resolve the dispute, as previously proposed by counsel for the Rasouli Family. The Underwood Letter did not create a potential conflict between the principles of duty of loyalty and absolute privilege, which was the concern of this court in Amato.
46 Second, the appellants submit that the integrity of the justice system is not protected by extending immunity to a physician who threatens to end his patient's life unless the intended victim has resort to that justice system to prevent the injustice of his own death. The appellants characterize the Underwood Letter as a threat. When considering whether the doctrine of absolute privilege applies to a particular communication, the analysis necessarily focuses on the occasion on which a communication was made, not on its content. …”
[99] Against that case law background I turn to the additional grounds raised by Mr Solmon with respect to his clients’ desire to have him as their counsel of choice and his resultant opposition of consolidation
XII. Lawyer’s Duty of Loyalty
[100] In Amato,supra the Court of Appeal also addressed the relevance in such cases of the Duty of Loyalty. Justice Cronk noted in that case:
58 The jurisprudence of the Supreme Court of Canada has repeatedly endorsed the importance to the administration of justice of the lawyer's duty of loyalty to his or her client. In particular, the Supreme Court has emphasized the lawyer's obligation to avoid conflicts of interest.
59 In R. v. Neil, 2002 SCC 70, [2002] 3 S.C.R. 631, at paras. 12 and 16, Binnie J., writing for the Supreme Court, described a lawyer's duty of loyalty to a client as a "defining principle" that is intertwined with the fiduciary nature of the lawyer-client relationship. As he observed, at para. 16, loyalty is frequently cited as one of the defining characteristics of a fiduciary. Justice Binnie explained, at para. 12, that the duty of loyalty has endured for almost two centuries precisely "because it is essential to the integrity of the administration of justice and it is of high public importance that public confidence in that integrity be maintained". He elaborated:
Unless a litigant is assured of the undivided loyalty of the lawyer, neither the public nor the litigant will have confidence that the legal system, which may appear to them to be a hostile and hideously complicated environment, is a reliable and trustworthy means of resolving their disputes and controversies. [Citations omitted.]
60 The content of the duty of loyalty is broad. Neil holds, at para. 19, that in addition to protecting confidential information, the duty of loyalty has "three other dimensions":
(i) the duty to avoid conflicting interests ... including the lawyer's personal interest;
(ii) a duty of commitment to the client's cause (sometimes referred to as "zealous representation") from the time counsel is retained, not just at trial, i.e. ensuring that a divided loyalty does not cause the lawyer to "soft peddle" his or her defence of a client out of concern for another client; and
(iii) a duty of candour with the client on matters relevant to the retainer. ... If a conflict emerges, the client should be among the first to hear about it. [Citations omitted. Emphasis in original.]
[101] I regard those duties as creating a lens through which counsel’s conduct should be evaluated.
XIII. Three Fundamental Rights?
[102] Counsel for the Defendants in the Wrongful Dismissal Action asserts that there are three specific rights which his clients were entitled to expect in this case. In particular they submit in their factum:
More specifically, as it relates to prejudice, the most important aspect of this motion are the unusual circumstances of these proceeding. There are three fundamental rights of the Hannaford Defendants that are in issue and any one of those rights trump the request for the Consolidation Order. If the Consolidation Order requested by the Plaintiff were granted, there would be a clear interference with these fundamental rights; the right to protection of confidentiality of solicitor-client privilege, the right to choice of counsel, and the duty of commitment of counsel to the cause of the client. It is submitted that a Consolidation Order would be contrary to these fundamental principles set out in the jurisprudence of the Supreme Court of Canada.
As stated in Descouteau and Mirzwinski in dealing with the fundamental right of protection of the confidentiality/ solicitor-client privilege:
"Unless the law provides otherwise, when and to the extent that the legitimate exercise of a right would interfere with another person's right to have his communications with his lawyer kept confidential, the resulting conflict should be resolved in favour of protecting the confidentiality".
[103] Dealing specifically with the issues raised in the Reply in the Libel Action these concerns are raised in a responding factum:
“7. As the pleading of the Plaintiff in Reply to the Statement of Defence in the Libel Action clearly raises issues that would require evidence which could result in disclosure of solicitor/client privileged information and therefore the loss of confidentiality, the Consolidation Order must not be made. The Court and all counsel have a duty to protect the virtually absolute right to the confidentiality of solicitor/client privilege in the Wrongful Dismissal Action.
[104] In Bell v. Smith 1968 CanLII 17 (SCC), [1968] S.C.R. 664 a case where a counsel was subpoenaed to testify with respect to a settlement reached with his former client. Justice Spence observed:
This regrettable occurrence was occasioned by insufficient concern for a fundamenta1 rule, namely, the duty of a solicitor to refrain from disclosing confidential information unless his client waives the privilege.
Lord Chancellor Eldon said, in Beer v. Ward [(1821), Jacob 77, 37 E.R. 779), at p. 80:
…it would be the duty of. any Court to stop him if he was about to disclose confidential matters... the Court knows the privilege of the client, and it must be taken for granted that the attorney will act rightly, and claim that privilege; or that if he does not, the Court will make him claim it.
Because the solicitor owes to his former client a duty to claim the privilege when applicable, it is improper for him not to claim it without showing that it has been properly waived….
[105] The arguments posed continue:
Furthermore, another fundamental right of a client is her/his choice of counsel. A Consolidation Order in these circumstances is a transparent tactic to try and (indirectly, under the guise of a motion to consolidate) remove counsel on behalf of the Hannaford Defendants in the Wrongful Dismissal Action.
It is submitted that if the effect of a Consolidation Order is to interfere with and result in a loss of choice of counsel, who has spent considerable time and effort on the Wrongful Dismissal Action, that fundamental right should trump any Consolidation Order.
The other fundamental right that would be affected by a Consolidation Order is the duty of commitment of the lawyer for the Hannaford Defendants in the Wrongful Dismissal Action. It is submitted that the effect of the Consolidation Order would be to prevent counsel for the Hannaford Defendants from carrying out that duty.
[106] Again the Supreme Court commented on these duties in Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7. In that case dealing with proposed money laundering legislation and the duties of lawyers Justice Cromwell referred to the Court’s earlier decision in Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61 [2002] 3 S.C.R. 209 and confirmed:
“44 The core principle of the decision is that solicitor-client privilege “must remain as close to absolute as possible if it is to retain.relevance”:Lavallee, at para. 36. This means that there must be a “stringent” norm to ensure its protection, such that any legislative provisions that interfere with the privilege more than “absolutely necessary” will be found to be unreasonable: para. 36.”
[107] Later in his reasons, Justice Cromwell confirmed the view that the duty of commitment to the client’s cause is fundamental to how the state and citizen interact in legal matters. He again points to importance of not undermining the solicitor-client relationship:
“96….This duty of commitment to the client's cause is an enduring principle that is essential to the integrity of the administration of justice. In Neil, [supra] the Court underlined the fundamental importance of the duty of loyalty to the administration of justice. The duty of commitment to the client's cause is an essential component of that broader fiduciary obligation. On behalf of the Court, Binnie J. emphasized the ancient pedigree of the duty and wrote that it endures "because it is essential to the integrity of the-administration of justice and it is of high public importance that public confidence in that integrity be maintained'': para. 12 (emphasis added). This unequivocal and recent affirmation seems to me to demonstrate that the duty of commitment to the client's cause is both generally accepted and fundamental to the administration of justice as we understand it.”
[108] This decision released after the Libel Action was commenced provides me with a very recent affirmation of this duty and the need to facilitate its protection.
XIV. Consolidation Rule
[109] Rule 6 is indexed as “Consolidation or Hearing Together” and sets out the elements to be considered on a motion such as this. The relevant portions of the rule (with my emphasis added) read:
WHERE ORDER MAY BE MADE
6.01 (1) Where two or more proceedings are pending in the court and it appears to the court that,
(a) they have a question of law or fact in common;
(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or
(c) for any other reason an order ought to be made under this rule,
the court may order that,
(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or
(e) any of the proceedings be,
(i) stayed until after the determination of any other of them, or
(ii) asserted by way of counterclaim in any other of them.
(2) In the order, the court may give such directions as are just to avoid unnecessary costs or delay and, for that purpose, the court may dispense with service of a notice of listing for trial and abridge the time for placing an action on the trial list
[110] It is important to note that regardless of a determination at this stage, if an order is made under the above rule, the trial judge continues to have the discretion to order otherwise:
6.02 Where the court has made an order that proceedings be heard either at the same time or one immediately after the other, the judge presiding at the hearing nevertheless has discretion to order otherwise.
[111] As well, I have considered Rule 6.1.01 which was added in 2008 and is indexed as “Separate Hearings”:
6.1.01 With the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding, including separate hearings on the issues of liability and damages.
[112] With respect to the application of this rule in this case a responding factum asserts:
- Furthermore, if necessary, the Hannaford Defendants also submit that the onus (and burden of proof) on such a motion is on the Plaintiff. The evidence provided and refused to be provided does not provide a proper foundation for the Court to exercise its discretion under Rule 6 of the Rules of Civil Procedure. The Plaintiff does not meet the threshold test under Rule 6.01 for the Court to then exercise its discretion to order consolidation.
[113] I am satisfied that while related to the same parties the plaintiff has not convinced me that the two actions have similar enough factual issues. This particularly the case as the defence in the Libel Action does not rely upon an assertion of truth with respect to the defences raised in the Wrongful Dismissal Action. The findings in that action are thus only tangential to the Libel Action
[114] In my consideration of this rule I am also having regard to Rule 1.04 and its provisions of overall application:
General Principle
1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits
Proportionality
(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.
[115] In reaching the conclusion that the plaintiff’s motion ought to be dismissed because of the significant prejudice that would be caused by consolidation I am adopting the approach of Justice E.M. Morgan in Nuvius Bankcard Services, Inc. v. Dowty, 2012 ONSC 4835. In that case the Plaintiffs sought to strike portion of counterclaim alleging draft statement of claim sent to defendant's employer was defamatory on basis it was subject to absolute privilege.
[116] In that case the reverse of consolidation, Severance was sought, as it was asserted that the defence would inevitably require disclosure of solicitor-client communications that would prejudice prosecution of main action. The headnote summarizes the conclusion reached: “Independence of counterclaim for defamation from main action and privilege concerns justified severance”.
[117] Justice Morgan observed:
18 The court must be cognizant that while judicial economy is an important value, it cannot override the procedural rights of a litigant. Similar to the situation described in Jones v. Campbell, 2000 CarswellOnt 2962, at para. 24 (Ont Master), "[t]here are no common issues between the claim and the proposed counterclaim and it is almost certain plaintiff's counsel would be forced to be a witness in the proposed counterclaim." While there are, of course, a number of facts that will be pertinent to both actions here, the Counterclaim relates to acts of the Plaintiff that are subsequent in time and that allegedly caused injury to the Defendant that is independent of the underlying allegations and injuries claimed by the Plaintiff against the Defendant.
19 Defendant's counsel says the Jones situation is distinguishable from the present one since the Plaintiffs here have already changed counsel, and it is their former lawyer rather than their current one that will have to testify. Nevertheless, I am of the view that the Plaintiffs will suffer an impermissible prejudice if they must try the Counterclaim with the main claim; the problem is not so much that they will have to change lawyers (as here they will not), but rather that solicitor-client communications will potentially be revealed to their detriment in the main action.
[118] Looking at a similar situation to the present case, he concludes:
“….Moreover, it is rather obvious from the pleading itself that the entire defamation claim revolves around words written by the Plaintiffs' lawyer. Determining whether the Plaintiffs are liable on the Counterclaim will entail an assessment of the meaning and intent of their lawyer's alleged communication with the Defendant's employer. There does not seem to be anything in the Counterclaim that does not raise the spectre of solicitor-client privilege.”
XV. Relief Sought
[119] As noted earlier Rule 6 provides for a number of manners in which actions involving common parties or issues can be tried. Here the notice of motion and the factum quoted at paragraph [1] above is clear. What is asked for is consolidation. Consolidation is sought and an Order for “directions as are just to avoid unnecessary costs and/or delay”;
[120] Further the Plaintiff asserts that she cannot afford to have both actions proceeding as separate actions
[121] I confess to some surprise that the Plaintiff deposed that notwithstanding she has been personally assisting in preparation for these cases, she has already incurred liability to date for legal fees in excess of $200.000 [sic]. Neither side has delivered an Affidavit of Documents .No Discoveries have been held.
XVI. Disposition
[122] While this is not a factor usually considered on a motion to consolidate, the remedy of staying the Libel Action until the Wrongful Dismissal Action is heard and determined would, in my view, comply with Rule 1.04 without causing the prejudice to the Defendants in the Wrongful Dismissal Action that a Consolidation Order would affect.
[123] While I cannot control the ultimate trial scheduling I would respectfully suggest that both matters be scheduled for trial before the same judge but with a reasonable hiatus before the Libel Action is heard.
[124] As I am case managing both actions I am prepared to consider proposals from counsel as to appropriate Discovery Plans and timetables.
[125] In the interim I have determined to exercise the power given to me by Section 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43,:
- A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.
[126] I am therefore ordering that Affidavits of Documents in the Libel Action shall be served within 90 days. At that point the Libel Action shall be stayed pending further Order from the Court. This will help to limit the Plaintiff’s expenses to only one action.
[127] The motion to Consolidate is dismissed.
XVII. Costs
[128] As noted previously, both parties have very competent counsel, and this was yet again an expensive process. While it could be argued that lawyers who hire highly skilled lawyers should anticipate that they potentially are going to be responsible for the payment of significant cost awards on a motion, I continue to think it is fairer to postpone the payment obligation.
[129] I am awarding costs against the plaintiff, but to the defendants in the cause of the Libel Action only. If Counsel can agree on an appropriate quantum with respect to this motion I will fix the costs payable at that amount. If not, I will entertain submissions from counsel at a later date.
[130] As I have indicated previously, this was a complex motion with unusual complexities arising on what is generally not an unusual request under Rule 6. I wish to again acknowledge the skilled advocacy of all counsel, and the most helpful submissions provided by those advocates appearing for all parties.
Released: March 29, 2016
Master D. E. Short
DS/ R. 130