Court File and Parties

Court File No.: CV-17-133620 Date: 20190327 Superior Court of Justice - Ontario

Re: Leon Wickham, Plaintiff/Respondent And: Magdy Sherif Hamdy, Jordan Donich and Donich Law Professional Corporation, Defendants/Moving Parties

Before: Justice J. Di Luca

Counsel: No one appearing for the Plaintiff/Respondent No one appearing for the Defendant, Magdy Sherif Hamdy A. Lei and A. Kokach for the Defendants/Moving Parties, Jordan Donich and Donich Law Professional Corporation

Heard: March 7, 2019

Endorsement

[1] Leon Wickham is a lawyer. Magdy Sherif Hamdy is his former client. Mr. Wickham represented Mr. Hamdy in matrimonial proceedings that culminated in a trial before Wildman J.

[2] Jordan Donich is also a lawyer. He was retained following the trial to help Mr. Hamdy address issues relating to accounts for services rendered by Mr. Wickham during the matrimonial and other proceedings.

[3] In furtherance of their efforts to address Mr. Wickham’s accounts, Mr. Donich and Mr. Hamdy co-signed a direction sent to counsel for Mr. Hamdy’s ex-wife, Ms. Judith Nicoll, directing her to forward any further funds owing as a result of the trial before Wildman J. directly to Mr. Hamdy and not to Mr. Wickham.

[4] Mr. Wickham took umbrage at the language used in the direction sent to Ms. Nicoll. As a result, he commenced an action for defamation seeking $5 million from his former client, Mr. Hamdy, and his former client’s new counsel, Mr. Donich.

[5] Mr. Donich now brings a motion pursuant to Rule 21.01(1)(a) of the Rules of Civil Procedure seeking the determination of a question of law raised by the pleadings, namely, whether the statements made by the Defendants, which are alleged to be defamatory, were made on an occasion of absolute privilege and, as such, are not actionable.

[6] For the reasons that follow, I answer this question in the affirmative. The alleged defamatory statements were made on an occasion of absolute privilege, and as such provide no actionable basis for this action. As a result, the action must be dismissed with costs.

The Constructive Adjournment Request

[7] Despite proper service and ample notice, Mr. Wickham did not see fit to attend the hearing of this motion. He did not arrange for anyone to appear on his behalf, either as counsel or as agent. He filed no materials and no formal adjournment request was made or advanced on his behalf.

[8] Counsel for Mr. Donich, acting in accordance with their obligations, advised the court of the history of this motion and filed a chain of correspondence with Mr. Wickham. That chain of correspondence was marked as Exhibit 1 on the motion.

[9] The correspondence includes an email sent by Mr. Wickham on the night before the motion was to be heard, wherein Mr. Wickham indicates that he will not be attending on the motion. He also indicates that he is “consenting” to adjourn the motion sine die for the reasons he set out in an earlier letter. The email ends with Mr. Wickham expressing confidence that counsel will bring the correspondence to my attention at the hearing of the motion.

[10] Mr. Wickham’s failure to attend is improper and lacking in respect for the court. Nonetheless, and despite the absence of a formal request, I decided to treat his comments in the email to counsel as a “request” for an adjournment of the motion. I heard submissions on the issue and reviewed the chain of correspondence. Counsel for Mr. Donich indicated that they were prepared to argue the motion and saw no need to adjourn it.

[11] I dismissed the adjournment request and indicated I would provide reasons. These are my reasons.

[12] I start with a brief review of the history of this proceeding. In this regard, the following dates and events are noteworthy.

[13] On October 9, 2018, counsel for Mr. Donich served Mr. Wickham with the motion record originally returnable on December 20, 2018. On October 19, 2018, an amended motion record was served on Mr. Wickham. On December 7, 2018, a factum and book of authorities was served on Mr. Wickham.

[14] On December 14, 2018, counsel for Mr. Donich sent a draft motion confirmation to Mr. Wickham for his approval. Mr. Wickham replied by email on December 17, 2018, asking that the confirmation form be amended to include reference to the responding record and factum dated that same date.

[15] On December 18, 2018, counsel for Mr. Donich provided a revised confirmation form and asked Mr. Wickham when his materials, now referenced in the motion confirmation form, would be served.

[16] Mr. Wickham responded indicating that his computer had been subjected to a “ransomware” attack, necessitating a reconstruction of his computer system. As a result, he could not complete his materials, though he believed they would be completed on or before December 28, 2018.

[17] In view of Mr. Wickham’s computer troubles, counsel for Mr. Donich agreed to adjourn the motion. A consent order for an adjournment was prepared and presented to the court on December 20, 2018, and the motion was adjourned to March 7, 2018. A term of the order granting the adjournment required that responding materials be served by Friday, December 28, 2018.

[18] At 12:50 p.m. on December 28, 2018, Mr. Wickham sent an email to counsel for Mr. Donich indicating that he was still having trouble with his computer but was “confident” that the materials would be completed, albeit after 4:00 p.m. He indicated that he would email the materials as soon as they were ready, and that hard copies would be served by courier on Monday, December 31, 2018.

[19] A further email from Mr. Wickham was sent at 4:17 p.m. on December 28, 2018, indicating that the materials would not be sent that date but would be provided on the following Monday.

[20] On January 2, 2019, counsel for Mr. Donich emailed Mr. Wickham indicating that he had not heard anything further following the email exchange on December 28, 2018, and more importantly had not received the promised materials.

[21] On February 5, 2019, counsel for Mr. Donich wrote to Mr. Wickham again, indicating that no responding materials had been filed and that Mr. Wickham was in violation of the terms of the adjournment order. Counsel noted that the motion was scheduled to be heard on March 7, 2019, some five months after it was initially served.

[22] On February 28, 2019, counsel for Mr. Donich sent Mr. Wickham a draft confirmation for the motion. A follow up email on March 1, 2019 prompted an email response from Mr. Wickham on March 4, 2019, indicating that he would provide correspondence later that day.

[23] In a letter dated March 4, 2019, Mr. Wickham takes the position that the moving party’s amended motion record “is inaccurate and cannot, in good faith, be placed before the Court as currently constituted”. He reminds counsel for Mr. Donich of Rule 5.1-2 of the Rules of Professional Conduct, which prohibit a lawyer from knowingly attempting to deceive the court.

[24] The essence of Mr. Wickham’s complaint relates to the inclusion in the amended motion record of an Endorsement by Bawden J. dated October 5, 2018. That Endorsement arose from proceedings commenced in Toronto relating to an assessment of Mr. Wickham’s accounts by Mr. Hamdy, and it contains negative comments regarding Mr. Wickham’s conduct and his accounts.

[25] Mr. Wickham advises in his letter that the proceeding before Bawden J. is continuing, and that an issue has arisen regarding the content and completeness of the Endorsement dated October 5, 2018. That issue was scheduled to be addressed before Bawden J. on March 22, 2019. According to Mr. Wickham, the inclusion in the amended motion record of the allegedly inaccurate or incomplete version of Bawden J.’s Endorsement creates a significant risk that the court will be misled on this motion.

[26] It appears that as a result of the concerns raised in relation to Bawden J.’s Endorsement, Mr. Wickham simply decided that he would neither file any responding materials nor attend on the motion.

[27] In my view, the history of this matter permits only one conclusion. Mr. Wickham is playing games with the process. He has no intention of responding to the motion. Moreover, he has attempted to force an adjournment by simply not attending court, and claiming what appears to be a spurious concern about a proceeding that is not relevant to the issue to be decided on this motion.

[28] As I indicated in court when I dismissed the constructive adjournment request, there is simply no basis before me warranting an adjournment.

Rule 21.01 and the Legal Question of Absolute Privilege

[29] I turn next to the merits of the motion. Rule 21.01(1)(a) of the Rules of Civil Procedure permits a party to seek, before trial, the determination of a question of law where determination of the question may dispose of all or part of an action, substantially shorten the trial or result in a substantial saving of costs. Under Rule 21.01(2)(a), evidence is presumptively inadmissible on this motion except through leave of the court.

[30] Under this rule, the answer to the legal question sought to be answered must be “plain and obvious”. The rule is not intended to be applied in cases where material facts are in dispute or where facts must be assumed in the hypothetical, see Law Society of Upper Canada v. Ernst & Young, [2003] O.J. No. 2691, at paras. 22-23 (Ont CA) and Portuguese Canadian Credit Union Ltd. v. CUMIS General Insurance Co. (2010), 2010 ONSC 6107, 104 OR (3d) 16, at para. 22. For the purpose of the motion, the facts alleged in the statement of claim are taken to be true.

[31] The moving party seeks leave to admit evidence on this motion. The evidence is a brief affidavit by Mr. Donich, wherein he states that he was retained by Mr. Hamdy to assist with the assessment of legal fees charged by Mr. Wickham. He further states that on November 24, 2015, he obtained an order on behalf of Mr. Hamdy for the delivery and assessment of Mr. Wickham’s legal fees. A copy of the court’s Order is attached as an exhibit. Lastly, the affidavit contains an admission that the impugned direction which is the subject of this action was drafted by Mr. Donich.

[32] I am satisfied that leave should be granted to admit this brief affidavit on the motion. First, the fact that Mr. Donich was retained by Mr. Hamdy for the purpose of assessing Mr. Wickham’s legal fees and that he drafted the direction is not a contested fact. There can be no dispute that Mr. Donich’s involvement in this matter was as counsel to Mr. Hamdy in relation to the assessment of the account. Second, the fact that an order for the delivery and assessment of Mr. Wickham’s accounts was obtained cannot be disputed, and forms part of the essential factual context of this action; see Beardsley v. Ontario at para. 24.

[33] I pause to note that the amended motion record also contains the Endorsement of Wildman J. dated September 9, 2015, and the Endorsement of Bawden J. dated September 24, 2018. Neither Endorsement is “evidence” on the motion. Rather, the Endorsements simply provide the context within which this action arises. More importantly, neither Endorsement impacts the determination of the legal question placed before me on this motion.

The Doctrine of Absolute Privilege

[34] It is settled law that statements published on an occasion of absolute privilege are not actionable, see Admassu v. Macri, 2010 ONCA 99 at para. 19 and Big Pond Communications 2000 Inc. v. Kennedy. Lawyers, parties and witnesses, are all protected by the privilege.

[35] The privilege seeks to create a zone of protection for lawyers acting in pursuit of their clients’ interests. Lawyers are to be free to present their clients’ cases without fear of a lawsuit. The privilege is not simply confined to statements made in court. It also extends to all preparatory steps taken with a view to judicial proceedings so long as the step in question is directly concerned with actual or contemplated proceedings, see Dingwall v. Lax at para. 16. The privilege extends to statements that are incidental or preparatory to judicial proceedings, see Salasel v. Cuthbertson, 2015 ONCA 115 at para. 36. Determining whether a statement is preparatory to or intimately connected with a judicial proceeding involves an assessment of remoteness. A statement that is only remotely connected to a judicial proceeding may fall outside the scope of absolute privilege.

[36] Absolute privilege is not defeated by malice, see Sauve v. Mercovitz at para. 46, aff’d 2008 ONCA 70.

Analysis

[37] The statement of claim alleges that Mr. Donich and Mr. Hamdy made defamatory statements in a direction that was sent to Mr. Hamdy’s ex-wife’s family law counsel. The direction, which was signed by both Mr. Donich and Mr. Hamdy, directed counsel, Ms. Nicoll, to direct any further funds owing in the matrimonial action directly to Mr. Hamdy and not to Mr. Wickham, despite what appears to have been required by an earlier direction. The direction includes an explanation of the purported reason for the change in direction and includes details that are arguably unnecessary. It is the explanation included within the direction that serves as the basis for Mr. Wickham’s claim of defamation. The statement of claim includes an excerpt from the impugned direction sent to Ms. Nicoll. It need not be repeated here.

[38] The statement of defence pleads, inter alia, the defence of absolute privilege.

[39] In this case, accepting the facts set out in the statement of claim and relying on the brief affidavit evidence filed on the motion, it is plain and obvious that Mr. Donich’s conduct in drafting and signing the direction that was sent to Ms. Nicoll was a step taken in furtherance of his retainer with Mr. Hamdy. The retainer was related to addressing Mr. Wickham’s fees and billings in relation to the matrimonial matter. Mr. Donich was taking steps to have Mr. Wickham’s account rendered and assessed, and in furtherance of that task took steps to ensure that no further funds would be directed to Mr. Wickham.

[40] On these facts, the impugned direction is captured by absolute privilege in two different ways. First, it comes within the extant matrimonial proceedings. This was a scenario where an initial direction had been sent to Ms. Nicoll directing her to send certain funds directly to Mr. Wickham, and this was simply another direction cancelling the first and providing revised directions. Leaving aside the wording of the direction which is alleged to be defamatory, the direction itself is essentially no different than the first direction. It is a document within the litigation that directs opposing counsel to disburse funds related to the litigation in a certain manner.

[41] Second, the direction was a step directly related to the assessment proceedings that had been commenced by Mr. Donich. In this regard, I find that directing opposing counsel to send funds directly to the client instead of the lawyer whose account is to be assessed, is a step in a proceeding aimed at protecting the client’s interests in relation to the fees being charged to him by the lawyer.

[42] Either way, I am prepared to find that the direction was directly linked to a legal proceeding before the courts, and that as such the direction falls within the scope of absolute privilege.

[43] While the language used in the direction could readily be understood as inflammatory, I note that malice does not defeat absolute privilege. As such, even if the language in the direction was intended maliciously (and I make no such finding), it would not make any difference to the analysis.

[44] In my view, it is plain and obvious that the words used in the direction were published on an occasion of absolute privilege and, as such, are not actionable. The resolution of this question of law necessarily means that the action must be dismissed.

Costs

[45] In terms of costs, Mr. Donich seeks costs of approximately $8,400 all-inclusive on a partial indemnity basis, and $13,500 all-inclusive on a full indemnity basis for the entire action including the Rule 21 motion. On the motion alone, the costs sought are approximately $5,200 all-inclusive and $8,400 all-inclusive, respectively.

[46] The outcome of the motion ends the action, so in my view costs should be awarded in relation to the entire action at this stage. While I am inclined to simply assess the reasonableness and proportionality of the costs requested in the absence of any submissions from Mr. Wickham, as a matter of fairness I am prepared to consider any submissions he wishes to make in writing, no longer than three pages double spaced, and served and filed within seven days of the release of this Endorsement. I invite counsel for Mr. Donich to provide Mr. Wickham with a copy of their Costs Outline that was tendered at the hearing of the motion as soon as is reasonably possible to assist him in focusing his costs submissions.

[47] If no submissions are received within the time frame set out above, I will consider the issue of costs on the basis of the material provided by Mr. Donich’s counsel.

Justice J. Di Luca Date: March 27, 2019