COURT FILE NO.: CV-18-2074-00 DATE: 2019 12 02

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

DAVID GRANT ISAAC Plaintiff Self-represented

- and -

JONATHAN MESIANO-CROOKSTON, GOLDMAN HINE LLP and SARA CARNEGIE Defendants

Counsel: Allan D. Powell, for the Defendants/Moving Party Jonathan Mesiano-Crookston and Goldman Hine LLP Glen Perinot for the Defendant/Moving Party Sara Carnegie

HEARD: July, 2019

REASONS FOR JUDGMENT

L. SHAW J.

Overview

[1] The defendants bring this motion for an order pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, 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, only the Notice of Motion and Statement of Claim are before me as evidence. There are no affidavits setting out any additional facts to consider.

[2] The plaintiff does not have a motion before the court seeking leave to amend the Statement of Claim. He opposes the motion on the basis that the claim discloses numerous causes of action. The plaintiff also intends to seek 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.

[3] For the reasons that follow, I find that the Statement of Claim should be struck, without leave to amend.

Review of the Proceedings

[4] The Statement of Claim was issued on May 6, 2018. A Notice of Intent to Defend dated September 24, 2018, was filed by the defendants Jonathan Messiano-Crookston (“MC”) and Goldman Hine LLP (“GH”). The defendant Sara Carnegie (“SC”) filed her Notice of Intent to Defend on July 12, 2018. The defendants served and filed a Notice of Motion to dismiss the claim returnable on October 23, 2018.

[5] On that first return date, Bloom J. adjourned the matter to November 20, 2018, and commented that there would be three similar motions to be heard on the next date. The judge hearing the matter next would also determine if there were similar issues and factual circumstances and whether the motions should be heard on a following date set for long motions. Bloom J. granted leave to the plaintiff 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 any material by November 9, 2018, and the defendants were to file any responding materials by November 16, 2018.

[6] On November 20, 2018, (the next return date) Andre J. held that the three consolidated motions would require a long motion hearing date. He noted that the plaintiff had failed to file 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 was to file his materials dealing with jurisdiction and conflict of interest by April 30, 2019. According to Andre J: “his failure to do [so] 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.”

[7] Prior to Andre J’s order on November 20, 2018, the plaintiff had amended his Statement of Claim – on May 17, 2018, October 22, 2018 and November 19, 2018. These amendments were after he had been served with this motion to strike. 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 all amendments.

[8] 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

[9] Given the nature of the allegations, I will review the Statement of Claim in some detail. Any emphasis, such as the use of capital letters, is taken directly from the pleadings.

[10] The plaintiff is a licenced lawyer practicing in Mississauga. The defendant, SC, was a client of the plaintiff in a matrimonial dispute. MC is a lawyer who was subsequently retained by SC. GH is the law firm with which MC is employed.

[11] The Statement of Claim alleges that MC and his law firm were, at all times, acting on SC’s instructions, thereby making her liable for all actions carried out pursuant to those instructions.

[12] According to the Statement of Claim, SC filed a complaint with the Law Society of Ontario (“LSO”), alleging that the plaintiff owed her monies after her family law matter had been finalized. The LSO investigated the complaint and found it to be groundless/meritless. In para. 7 of the Statement of Claim, the plaintiff alleges that the complaint was “completely trashed.”

[13] The plaintiff had also commenced a civil action against SC for outstanding fees and disbursements owing to him in connection with the matrimonial dispute. At some point (it is not clear when), SC obtained documents from the LSO which enabled her to have the account assessed, while, it appears, the civil action commenced by the plaintiff for that same account was outstanding.

[14] In the plaintiff’s Statement of Claim, he alleges that SC filed the LSO complaint in an attempt to intimidate and prevent him from proceeding with his lawsuit regarding outstanding legal fees.

[15] According to the Statement of Claim, MC was acting for SC in defending the action commenced by the plaintiff regarding the legal fees owing to him and in attempting to collect on the “improperly taxed account.” The plaintiff alleges that SC had her account assessed on “false evidence.”

[16] The plaintiff alleges in the Statement of Claim that “MC, may have motivated SC to file her complaint to the LSO/LSUC in an attempt to intimidate the plaintiff into paying the improper and invalidly taxed account. It is submitted that this constitutes professional misconduct.”

[17] In para 14, the plaintiff pleads as follows: “[a]fter said complaint was TRASHED by the LSO/LSUC, as a result of correspondence with the plaintiff, MC was motivated to also file a complaint against Isaac in a further attempt, it is submitted, to intimidate him to discontinue his lawsuit, as MC did not have sufficient knowledge or competence to otherwise act for Carnegie, in this lawsuit.”

[18] The plaintiff alleges that MC did not have sufficient knowledge and or competence to comprehend the complexity of the legal work he carried out for SC in her family law matter and did not know how to defend her in the action concerning the outstanding legal fees. The plaintiff alleges that MC decided to go to the LSO “to do the work, free of charge and hope to finalize the matter by filing a complaint against the plaintiff, hoping it would cause him to abandon the claim and pay the ‘PHONY’ taxed account.”

[19] At para. 17 of the Statement of Claim, the plaintiff alleges that MC stated in the complaint letter that “he wondered if he had been Threatened by the Plaintiff, but more importantly, he stated he felt the Plaintiff may suffer from DIMINISHED CAPACITY.”

[20] According to para. 18 of the Statement of Claim, the LSO did not pursue the allegation as “they were sufficiently familiar with the Plaintiff to be thoroughly aware that this allegation was completely devoid of merit, totally Groundless and ridiculous.” However, the plaintiff alleges that the LSO was involved in a number of malicious prosecutions/abuses of process against the plaintiff and decided to pursue MC’s complaint. As a result, the matter was referred for investigation.

[21] The plaintiff pleads that, at no time, was his competence an issue. However, in para. 22, the plaintiff alleges that the LSO pursued the issue of the alleged threat, even though “this is not even professional misconduct as any threat has to be directed against the Client of another Licencee, TO OBTAIN A BENEFIT, which was never alleged.” Furthermore, at para. 23, the plaintiff pleads that MC only asked the LSO for its opinion as to whether he had “BEEN THREATENED.” He pleads “he was not even confident enough to assert that HE HAD BEEN THREATENED.”

[22] The plaintiff alleges, in para. 24, that MC was “employing the mechanism of a complaint to the LSUC/LSO to solve his client’s legal problem which he was unable to do even though he no doubt had accepted a monetary retainer, while never revealing that he was not aware of how to proceed, on her behalf, to advance and protect her interest.”

[23] In para 25, the plaintiff alleges that MC’s actions constitute an abuse of process and malicious prosecution as well as professional misconduct and conduct unbecoming. In para 26, the plaintiff also alleges that MC’s allegation of “diminished capacity” constitutes “an advertent act of defamation of character, libel and slander and constitutes an act of criminal defamation under the Criminal Code of Canada which MC never had any reason to believe were true and knew were untrue, intended to negatively impact the Plaintiff.”

[24] The plaintiff pleads that an application is presently before the Law Society of Ontario Tribunal which was initiated in 2014 dealing with MC’s complaint and a further allegation of failing to cooperate with the investigation.

[25] According to the claim, the LSO has attempted to prosecute the case by way of affidavits only and an Affidavit was sworn by MC in which he repeated what was in his complaint, being that he suspects the plaintiff suffers from “diminished capacity.”

[26] The plaintiff alleges that he demanded the wording with respect to “diminished capacity” be deleted from the affidavit, however the LSO refused to do so and opposed an order that the affidavit not be made public. According to the claim, the Affidavit is now part of the record in Application 145/16 before the LSO Tribunal and is fully accessible by the public and media.

[27] The plaintiff alleges that this Affidavit and specific allegation have damaged his professional and personal reputation. He alleges that he has suffered a loss of income and a loss in the value of his law practice as a result.

[28] In para 33, the plaintiff alleges that:

“the very fact that MC would swear such an Affidavit, with such a devastating allegation, while himself being a lawyer/licensee of the LSUC/LSO and fully understanding the legal import and implications of such allegations constitutes incontrovertible evidence of an intended malicious prosecution, abuse of process and an attempt to cause a miscarriage of Justice, detrimental to the Plaintiff.”

[29] In para. 34, the plaintiff pleads that MC’s advertent support of the actions of the LSO in prosecuting the malicious Application is also an abuse of process and a malicious prosecution.

[30] The plaintiff seeks damages of $10 million from the defendants.

[31] In an amendment to the Statement of Claim, the plaintiff pleads that a finding was made on September 12, 2018, in LCN 145/16 which he will be appealing.

[32] The plaintiff alleges that the conduct of the defendants motivated the tort of misfeasance in public office arising out of its conduct as pleaded which conduct was in “BAD FAITH” and thus actionable under s. 9 of the Law Society Act. The plaintiff pleads that the conduct of the defendants motivated the actionable conduct of the LSO, which would not have occurred without the actions of the defendants.

[33] The plaintiff also pleads that the defendants’ actions are not protected by the doctrine of absolute privilege as those 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.”

[34] The plaintiff alleges that the defendants’ actions either caused Application LCN 145/16 to be improperly initiated or were improperly contained in an an affidavit which contained defamatory, libelous and damaging allegations and were intended to cause a miscarriage of justice.

[35] In the further amendments to the Statement of Claim, the plaintiff pleads that the actions of the defendants resulted in the invasion of his privacy and an intrusion on his seclusion and right to privacy. The plaintiff pleads that this intrusion was caused by improperly initiating the LSO complaint and the subsequent report of the complaint on the internet. He also pleads that their actions were intentional and/or reckless, malicious, vindictive and totally unwarranted and unjustified.

Analysis

[36] 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 proved, the question is whether it is plain and obvious that the plaintiff’s 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] S.C.J. No. 93, [1990] 2 S.C.R. 959 at p. 980.

[37] 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.

[38] 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.

[39] In this case, the core of the pleading relates to a complaint made by MC to the LSO about concerns of the plaintiff’s capacity and that MC thought the plaintiff may have threatened MC. The plaintiff alleges that the complaints were made for an ulterior purpose. That purpose was to intimidate the plaintiff in the action he was pursuing to recover legal fees from SC, MC’s client, and to further intimidate the plaintiff into paying the amount that SC had assessed.

[40] 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.

[41] 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 that defendant was terminated from 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.

[42] The defendants brought a motion to strike the claim under r. 21.01(1)(b) as disclosing no reasonable cause of action.

[43] The Court held that, if a 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.

[44] 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.

[45] 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.

[46] 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.

[47] In Hamalengwa v. Duncan, the court heard an appeal from a decision to strike out the appellants claim under r. 21.01 on the basis that 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.

[48] 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 at 3 (Div. Ct.).

[49] In Byrne v. Maas the Court dealt with a motion to strike the Statement of Claim without leave to amend, as it disclosed 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.

[50] The Court considered the defence of absolute privilege and found that absolute privilege or immunity applies to communications during, or incidental to, judicial/quasi-judicial proceedings and that no action for defamation will lie for words spoken in judicial/quasi-judicial proceedings and the immunity extends to letters of complaint.

[51] 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.

[52] At para. 9, the Court found that where a claim is not framed as defamation but is based on harm to reputation, it 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.

[53] 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 an 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.

[54] 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 those in 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.

[55] 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.”

[56] 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 MC to the LSO. As a result, it is no basis for a claim against SC, who the plaintiff alleges instructed MC to make the complaint. Likewise, there would be no vicarious liability on GH – the law firm for whom MC works.

[57] In this case, the plaintiff’s claims are all based on allegations that MC made defamatory comments about the plaintiff in a complaint to the LSO and in an affidavit filed as part of the LSO proceeding. Those defamatory comments related to the plaintiff’s diminished capacity and an alleged possible threat to MC. The plaintiff’s pleading is that those complaints caused the LSO to investigate the matter and that the LSO proceeding has diminished his reputation and caused financial losses to his business.

[58] All of the claims against the defendants – many of which are essentially directed at the LSO, who is not a party – are all grounded in the allegation of the damage to the defendant’s reputation. These damages, it is claimed, were caused by the LSO investigation and proceedings against him and the publication by the LSO of the affidavit and proceedings.

[59] 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 all grounded in, and flow from, MC’s conduct of filing a complaint to the LSO. As such, the defence of absolute privilege applies to each claim made against MC because all claims are related to the complaints filed and any statement given to the LSO. The claims are defamation “dressed up” to include other claims which are based on the defamation allegation.

[60] Furthermore, many of the plaintiff’s claims appear to relate to matters involving the LSO and not the defendants. For example, it was the LSO who decided to proceed with a disciplinary matter involving the plaintiff and then to publish the result. It was also the LSO’s decision not to remove the allegation of “diminished capacity” from MC’s affidavit. If the plaintiff has claims for malicious prosecution, slander or libel relating to the LSO’s actions, he should be pursuing those claims against the LSO and not the defendants named in this action – assuming such actions are tenable at law.

[61] Regardless of the allegations, with respect to the defendants’ motives for the complaints to the LSO (such as intimidation), the defence of absolute privilege applies and the pleading is hereby struck without leave to amend.

[62] 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 concerns about how the LSO has handled complaints against him. 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 arise from MC’s complaints to the LSO. As stated, those complaints are protected by the defence of absolute privilege, even if the complaints were made with malice or without justification.

[63] Furthermore, although the plaintiff alleges that the defendants’ actions were not part of the subject matter of the LSO proceeding, he also pleads that the complaints motivated the LSO to act and caused the LSO application to be improperly initiated. Thus, he pleads that the complaints were very much part of the LSO hearing process and, as such, the doctrine of absolute privilege applies.

[64] For these reasons, the Statement of Claim is struck without leave to amend.

Costs

[65] The parties provided costs outline which I have reviewed. The defendants are entitled to their costs on a partial indemnity basis as they were the successful parties.

[66] The defendant SC’s costs on a partial indemnity basis are $6,727, which includes $727 in disbursements. The defendants’ MC and GH costs on a partial indemnity basis are $6,763, which includes $1,088 in disbursements.

[67] 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), 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.

[68] I therefore find that the defendant SC is entitled to partial indemnity costs of $6,727, inclusive of HST and disbursements. The defendants MC and GH 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-18-2074-00 DATE: 2019 12 02

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: DAVID GRANT ISAAC Plaintiff

• and - JONATHAN MESIANO-CROOKSTON, GOLDMAN HINE LLP and SARA CARNEGIE Defendants

REASONS FOR DECISION L. Shaw J.

Released: December 2, 2019