COURT FILE NO.: CV-18-2087-00
DATE: 2019 12 02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DAVID GRANT ISAAC
Plaintiff
Self-represented
- and -
ASHLEY TINNEY-FISCHER, ASHLEY TINNEY-FISCHER PROFESSIONAL CORPORATIO, VALERIE PALMATEER and ROYAL LEPAGE PRO-ALLICANE REALTY LTD.
Defendants
Allan D. Powell, for the Defendants/ Moving Party
HEARD: July 31, 2019
REASONS FOR JUDGMENT
L. SHAW J.
Overview
[1] The defendants move for an order pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1980, Reg. 194, dismissing the action against all the defendants on the ground that the Statement of Claim does not disclose a reasonable cause of action. For such a motion, I may only consider the pleadings before me as evidence. There are no affidavits setting out any additional facts to consider.
[2] The plaintiff has not moved for leave to amend the Statement of Claim. He opposes the motion on the basis that the claim discloses numerous causes of action. He also seeks leave to amend the Statement of Claim to include the tort of deceit, which he says is also known as fraudulent misrepresentation, and the tort of conspiracy pursuant to r. 26.01 of the Rules of Civil Procedure.
Review of the Proceedings
[3] The Statement of Claim was issued on May 17, 2018. A Notice of Intent to Defend dated September 24, 2018, was served and filed. The defendants then served and filed a Notice of Motion to dismiss the claim, returnable on October 23, 2018. On that first return date, Bloom J. adjourned the matter to November 20, 2018, and commented there that were three similar motions and the judge hearing the matter on November 20, 2018, could determine if there were similar issues and factual circumstances and if the motions should be heard on a date set for long motions. He granted the plaintiff leave to file additional material which could include attacks on the jurisdiction to hear the motions and on opposing counsel’s right to act. The plaintiff was ordered to serve his material, if any, by November 9, 2018. The defendanats were to file any responding materials by November 16, 2018.
[4] On November 20, 2018, the next return date, Andre J. held that the three motions, which had been consolidated, required a long motion date to argue. He noted that the plaintiff had failed to file his responding material by November 9, 2018, as ordered by Bloom J. According to Andre J’s endorsement, the plaintiff indicated that he planned to bring a jurisdictional argument concerning the right of opposing counsel to bring a motion to strike the Statement of Claim after filing a Notice of Intent to Defend. He had not yet filed any such material. Andre J. ordered that he file his materials dealing with jurisdiction and conflict of interest by April 30, 2019. According to Andre J., “[h]is failure to do should result in an order prohibiting him from relying on these issues in his response to the motions brought by the defendants.” Andre J. also ordered that the plaintiff could serve and file any amendments to the Statement of Claim by May 31, 2019, but “only with leave of the court.”
[5] Prior to Andre J.’s order on November 20, 2018, the plaintiff amended his Statement of Claim – on October 22, 2018 and on November 19, 2018. These amendments were made after he had been served with this motion record. It is not clear if the defendants were aware of these amendments prior to attendance in court on November 20, 2018. In reaching my decision, I have considered the contents of the Statement of Claim and the two subsequent amendments.
[6] The plaintiff did not comply with the order of Andre J., as his factum for this motion was not served until July 25, 2019.
Review of the Statement of Claim
[7] Given the allegations, I will review the Statement of Claim in detail. All emphasis, including the use of capitals, is as pleaded in the Statement of Claim.
[8] The plaintiff is a lawyer. The defendant, Ms. Tinney-Fischer is also a lawyer who practices under the name Ashley Tinney-Fischer Professional Corporation in the town of Campbellford, Ontario. The defendant, Valerie Palmateer, is a real estate agent practicing in Campbellford, Ontario with the defendant Royal LePage Pro-Alliance Realty Ltd.
[9] Ms. Palmateer had a listing to sell property at 93 Frank Street in Campbellford. The property was owned by Helen Elizabeth Myers. Ms. Tinney-Fischer was Ms. Myers’ lawyer. The plaintiff made an offer in trust dated September 28, 2014, to purchase the property. At the time the plaintiff made the offer, his license to practice law was under suspension by the Law Society of Ontario (“LSO”). The plaintiff has always disputed the validity of his suspension and pleads that the suspension would not prevent him from acting for himself in the purchase of the property.
[10] Ms. Tinney-Fischer filed a complaint to the LSO concerning the plaintiff’s activities while under suspension. Ms. Palmateer supported Ms. Tinney-Fischer and also complained to the LSO. Both participated in interviews with the LSO.
[11] The Statement of Claim also raises issues about John Rae, an employee with LSO, and his encouragement of Ms. Tinney-Fisher to file a complaint. At para. 19, the plaintiff pleads that Ms. Tinney-Fisher and Ms. Palmateer were “DUPED BY Mr. Rae” and “DUPED” by another investigator at the LSO. Neither of these two LSO employees are named as parties in this action.
[12] As a result of the complaint, the plaintiff alleges that the vendor, Ms. Myers, decided not to complete the transaction and the plaintiff was unable to purchase the property.
[13] The complaint proceeded to a LSO tribunal hearing which has been ongoing since 2016. According to the Statement of Claim, the LSO application is on the internet “for all to view.”
[14] The plaintiff is seeking damages from Ms. Tinney-Fisher for her activities in filing a complaint to the LSO and for cooperating with its investigators. He pleads that her conduct in filing a complaint demonstrates her motivation to pursue a “course of malicious prosecution, abuse of process and miscarriage of Justice, personally against the Plaintiff, as at this point she was no longer acting to protect her client, the Vendor.”
[15] The plaintiff further pleads that Ms. Palmateer reported to LSO investigators that she thought there was a fraud being perpetrated by the plaintiff in his offer to purchase the property. She did not communicate this to him, however, before she filed the complained in order to allow the plaintiff to reassure the vendor, Ms. Myers, that this was not the case.
[16] In para. 21, the plaintiff alleges that the defendants took it upon themselves to block the sale of the property to him “possibly for any or some of the following reasons, all contrary to the best interests of their client Ms. Myers.” The allegations of possible motivations on the part of Ms. Tinney-Fischer and Ms. Palmateer include their intention to purchase the property themselves or trying to direct the property to another buyer. He also alleges that they did not want another lawyer coming to practice in Campbellford.
[17] In para. 21 (j), the plaintiff alleges that Ms. Tinney-Fischer omitted to get proper legal counsel or educate herself before proceeding with the “draconian step of filing a complaint.” He alleges that, as a lawyer, she was aware or ought to have been aware of the “very drastic nature of doing so and the potential consequences for the party being complained about.”
[18] The plaintiff alleges that the purported complaint to the LSO was only for the ulterior purpose of dissuading the plaintiff from purchasing the property.
[19] In the first amendment to the claim, the plaintiff pleaded that he will be appealing a finding made by the LSO on September 12, 2018, in the matter LCN 145/16.
[20] In para. 40 of the first amendment, the plaintiff alleges that:
“the conduct of the defendants motivated the tort of Misfeasance in public office arising out of it’s conduct, as pleaded, which conduct was in BAD FAITH and thus actionable under s.9 of the Law Society Act,. In fact, the conduct of the defendants motivated the actionable conduct of the LSO which would not have occurred absent the actions of the defendants.”
[21] In para. 41, he pleads that:
“the actions of the defendants are not immunized by the Doctrine of Absolute Privilege as said actions were not part of the subject matter of the proceedings and had nothing to do with the content of the proceeding in LCN 145/16 and no evidence was advanced pertaining to the subject matter sued on in this Action, set out earlier herein.”
[22] In para 42, the plaintiff pleads:
“Said actions/allegations either caused Application LCN 145/16 to be improperly initiated or were improperly contained in Affidavits used at the hearing, containing defamatory, libelous, damaging allegations, extraneous to the subject matter of the Application and intended to cause a miscarriage of justice.”
[23] In the second amendment to the Statement of Claim, the plaintiff pleads the actions of the defendants resulted in the invasion of his privacy and intrusion on his seclusion by:
“improperly causing the initiation of the case LCN 145/16 at the Law Society Tribunal and the subsequent report on the internet of this case which has appeared even though it is not final and will be appealed. However, even a report of a successful appeal will never undo the damage that has been done to the plaintiff’s professional and personal reputation and the resulting financial impact.”
[24] In the second amendment, the plaintiff also claims that the defendants’ actions were intentional, and/or reckless, malicious, vindictive and totally unwarranted and unjustified and meant to negatively impact him in a “very significantly disastrous and irreparable manner.”
[25] The plaintiff claims that the defendants’ actions invaded his “private affairs and/or concerns without lawful justification.”
[26] Lastly, the plaintiff claims that “a reasonable person would regard the intrusion and the overall actions of the defendants as being highly offensive causing humiliation, anxiety, stress, distress, mental anguish and loss of enjoyment of life and significant damage and detriment to the health of the plaintiff.”
[27] The plaintiff seeks $3 million for general damages for past and future business revenue and income and loss of value of his law practice. The plaintiff seeks damages of $5 million from the defendants for malicious prosecution, abuse of process, miscarriage of justice, defamation of character, liable, slander and damages to his personal and professional reputation. He seeks $4 million for exemplary and punitive damages.
Analysis
[28] There are some general overarching principles that apply to motions to strike pleadings. Unless there is no reasonable prospect of success, the claim will not be struck. Assuming that the facts as stated in the Statement of Claim can be proven, the question is whether it is plain and obvious that the plaintiff’s Statement of Claim discloses no reasonable cause of action. Neither the length and complexity of the issues or the novelty of the cause of action nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail should it be struck: Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] S.C.J. No. 93, [1990] 2 S.C.R. 959at p.980.
[29] The test for striking at the pleading stage is high and a difficult burden for the defendant to meet. Only in the clearest of cases should a party be deprived of the opportunity to proceed to trial to claim that the evidence and the law entitles him or her to a remedy.
[30] In my view, this is one of the clearest of cases where the test has been met and the pleading ought to be struck without leave to amend, as any proposed amendment will not cure the deficiencies.
[31] In this case, the core of the pleading relates to complaints Ms. Tinney-Fischer and Ms. Palmateer made to the LSO about the plaintiff acting to purchase a property while he was under suspension by the LSO. The plaintiff alleges that the complaints were made for an ulterior motive, which was their intention to defeat his purchase of the property.
[32] The defendants’ position is that the complaints made are communications protected by the doctrine of absolute privilege which is a complete answer to the claims against the moving parties. In that regard the defendants rely on a number of decisions including Singh-Boutilier v. Ontario College of Social Workers and Social Service Workers, 2015 ONSC 5297 at para. 35 citing Amato v. Walsh 2013 ONCA 258, [2013] O.J. No. 1857 (C.A.) as follows:
No action lies, whether against judges, counsel, jury witnesses or parties, for words spoken in the ordinary course of any proceedings before the court or judicial tribunal recognized 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 statement in the course of the proceedings.
[33] In Singh-Boutilier the plaintiffs commenced an action against the defendant, Ontario College of Social Workers and Social Service Workers, who had revoked her registration after a complaints and disciplinary hearing process. The plaintiff alleged that the decision was based on a malicious complaint and on evidence from witnesses that was untrue. In addition to claiming against the College, the plaintiff also named the complainant as a defendant, who was also a witness at the hearing. In the Statement of Claim, the plaintiff alleged that the said defendant undertook a malicious campaign against the plaintiff after the said defendant was terminated from a position at the organization. The defendant then complained to the College and the discipline committee accepted the evidence of the complainant and other witnesses and revoked the plaintiff’s certificate of registration. The plaintiff sought $1 million from the defendant for general damages for false allegations, perjury, malicious intent, mischief, defamation, slander, breach of privacy, injurious falsehood and unlawful interference with economic relationships and $400,000 for punitive damages. The same claims were made against other witnesses who appeared at the hearings.
[34] The defendants brought a motion to strike the claim under r. 21.01(1)(b) as disclosing no reasonable cause of action.
[35] The Court found that if claim is found to disclose no reasonable cause of action it will not be struck without leave to amend, except in the clearest of cases. Such a clear case would be where the deficiencies in the pleading cannot cured by an appropriate amendment: South Holly Holdings Ltd. v. Toronto-Dominion Bank, 2007 ONCA 456, O.J. No. 2445, (C.A.) at para. 6.
[36] The defendants’ position was that the claim disclosed no reasonable cause of action as the defendants were immune from an action for damages under the doctrine of absolute privilege.
[37] Firstly, the court found that the doctrine of absolute privilege applies to quasi-judicial proceedings before a regulatory body: Deep v. College of Physicians and Surgeons of Ontario, 2010 ONSC 5248, [2010] O.J. No. 4017, at para. 59, affirm’ d 2011 ONCA 196, [2011] O.J. No. 1047: leave to appeal refused [2011] S.C.C.A. No. 152.
[38] Secondly, the Court found that the doctrine of absolute privilege is a complete answer to the claim against the witnesses as the essence of the claim against them was the allegation that they committed perjury: para. 38.
[39] In Hamalengwa v. Duncan 2005 CanLII 33575 (Ont. C.A.) the court heard an appeal from a decision of the court striking out the appellants claim under r. 21.01 on the basis it disclosed no cause of action. The appellant was a lawyer who brought an action against a judge who sent a letter of complaint about him to the Law Society of Upper Canada. After investigating the complaint, the Law Society decided no action was warranted and closed its file.
[40] The appellant in Hamalengwa claimed damages for libel and slander, breach of his constitutional rights, breach of fiduciary duties, emotional distress and wrongful interference with emotional and economic interests. At para. 8, the Court found that the respondent’s letter to the Law Society was protected by the absolute privilege given to any person who makes a complaint to a quasi-judicial regulatory authority: Sussman v. Eales (1986), 25 C.P.C. (2d) 7 at 8 (Ont. C.A.); Roach v. Long [2002] O.J. No. 2471 (Div. Ct.) at 3.
[41] In Byrne v. Maas, 2007 CanLii 49483 (ONSC) the Court dealt with a motion to strike the Statement of Claim without leave to amend as disclosing no cause of action under r. 21.01 (1)(b). The plaintiff’s claim was for intentional interference in economic relations, inducing breach of contract, defamation and infliction of mental suffering and anguish. The claim arose from an allegedly false written complaint by the defendant about the plaintiff who was an O.P.P. officer. The plaintiff claimed damages based on the written complaint, the repetition of the complaint to the officer assigned to investigate the complaint and the testimony of the defendant at the plaintiff’s disciplinary hearing.
[42] The Court considered the defence of absolute privilege and found that absolute privilege or immunity applies to communications during or incidental to judicial or quasi-judicial proceedings and that no action for defamation will lie for words spoken in judicial or quasi judicial proceedings and the immunity extends to letters of complaint.
[43] The Court found that the claim for defamation must be struck as disclosing no cause of action because the letter of complaint, the statement to the investigator and the testimony at the hearing were covered by absolute privilege.
[44] At para. 9, the Court found that where a claim is not framed as defamation but is based on harm to reputation, the claims should be struck. Defamation cannot be “dressed up” as another claim to evade the defences available in a defamation action. The Court found that the claims for interference in economic relations, inducing breach of contract and infliction of mental suffering were all grounded in the allegation that the defendant damaged the plaintiff’s reputation by complaining of him through the process in the Police Services Act.
[45] In Said v. University of Ottawa et al, 2013 ONSC 7186, [2013] O.J. No. 6119, the defendants moved to strike the Statement of Claim without leave to amend for failing to disclose a reasonable cause of action. The plaintiff was a doctor at a hospital and assistant professor at a university. One of the defendants was the Dean of the university’s faculty of medicine. Other defendants held positions in the faculty and one was a student, who submitted a sexual harassment complaint against the plaintiff which caused the university to investigate.
[46] In dealing with the claim to strike for failure to disclose a reasonable cause of action with respect to the claim as against the student who made the complaint, the Court found that the defence of absolute privilege applies even if the statements at issue were made with malice or without justification. The Court relied on the decision of Guergis v. Novak, 2013 ONCA 449, 38 O.A.C. 96 at paras. 84 and 93, which held that a plaintiff could not plead subsidiary torts based on the same alleged acts as the claim of defamation in order to evade the defence of absolute privilege. The Court therefore struck the entire Statement of Claim against the university and the individual defendants for failing to disclose a reasonable cause of action based on the defence of absolute privilege.
[47] In D’Mello v. Law Society of Upper Canada, 2014 ONCA 912, [2014] O.J. No. 6112, at para. 21, the Court found that “the privilege extends to communications made by, as well as to investigators.”
[48] Based upon the jurisprudence reviewed herein, I find that the doctrine of absolute privilege is a complete answer to any claims related to complaints made by Ms. Tinney-Fischer and Ms. Palmateer to the LSO. In this case, the core of the pleading relates to complaints Ms. Tinney-Fischer and Ms. Palmateer made to the LSO about the plaintiff acting to purchase a property while he was under suspension by the LSO. The allegation is that investigators at the LSO encouraged the defendants to make the complaints to support, and give credibility to, a number of other groundless complaints the investigator initiated improperly against the plaintiff. The plaintiff also alleges that the complaints were made for an ulterior motive which was the defendants’ intention to defeat his purchase of the property.
[49] All of the claims against the defendants – be it for: malicious prosecution, abuse of process, miscarriage of justice, defamation, libel, slander, misfeasance in public office, invasion of privacy and intrusion on seclusion – are grounded in, and flow from, the defendants’ conduct of filing complaints to the LSO. That is at the core of the Statement of Claim. As such, the defence of absolute privilege applies to each claim made against the defendants because all claims are related to the complaints they filed and any statement given to the LSO. Furthermore, all damages claimed by the plaintiff relate to damages flowing from these claims. He has not sought any damages relating to the alleged aborted sale of the property to him which he says was the improper motivation for the complaints.
[50] Many of the claims made by the plaintiff to relate to matters involving the LSO and not the defendants. For example, there are allegations about employees at the LSO duping and urging the defendants to file the complaints as part of a larger proceeding against the plaintiff. In this case, it was the LSO who decided to proceed with an investigation involving the plaintiff and then to publish the result. If he has claims for malicious prosecution, slander or libel relating to the LSO’s actions, he should pursue those claims against the LSO and not the defendants named in this action – assuming such actions are tenable at law.
[51] Regardless of the allegations with respect to the defendants’ motives for the complaints to the LSO, such as defeating the plaintiff’s ability to purchase the property, the defence of absolute privilege applies and the pleading is struck without leave to amend.
[52] In his submissions in this matter, the plaintiff claimed that he was a victim of guerilla warfare and that the LSO had wanted another reason to go after him. It was apparent from his submissions that the plaintiff has a number of complaints about how the LSO handled the complaints. As I have indicated, however, the LSO is not a party to this action. Even if the Statement of Claim has a plethora of causes of action, as the plaintiff submits, those causes of action all arise from the defendants’ complaints to the LSO which are protected by the defence of absolute privilege, even if the complaints were made with malice or without justification.
[53] Furthermore, although the plaintiff alleges that the defendants’ actions were not part of the subject matter of the LSO proceeding in LCN 145/16, he also pleads that the complaints motivated the LSO to act and caused the LSO application LCN 145/16 to be improperly initiated. Thus, he pleads that the complaints were very much part of the LSO hearing process and, therefore, that the doctrine of absolute privilege applies.
[54] For these reasons, the Statement of Claim is struck without leave to amend.
Costs
[55] The parties provided costs outline which I have reviewed. The defendants are entitled to their costs on a partial indemnity basis as they are the successful parties.
[56] The defendants’ costs on a partial indemnity basis are $6,763, which includes $1,088 in disbursements.
[57] According to the plaintiff’s costs outline, his partial indemnity costs are $16,102.50 in connection with costs incurred in two separate proceedings, including this matter. Assuming ½ of those costs is allocated to this action, the quantum proposed by the defendants is not excessive and within the reasonable contemplation of the plaintiff. (Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291, [2004] O.J. No. 2634 (C.A.). I have also considered the factors set out in Rule 57.01(1) of the Rules of Civil Procedure in reaching this decision.
[58] I therefore find that the defendants are entitled to costs on a partial indemnity basis of $6,763, inclusive of HST and disbursements. These costs shall be paid by the plaintiff by January 31, 2020.
L. Shaw J.
Released: December 2, 2019
COURT FILE NO.: CV-18-2087-00
DATE: 2019 12 02
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
DAVID GRANT ISAAC
Plaintiff
- and -
ASHLEY TINNEY-FISCHER, ASHLEY TINNEY-FISCHER PROFESSIONAL CORPORATIO, VALERIE PALMATEER and ROYAL LEPAGE PRO-ALLICANE REALTY LTD.
Defendants
REASONS FOR DECISION
L. Shaw J.
Released: December 2, 2019