COURT FILE NO.: CV-20-2732 (Brampton)

DATE: 20220711

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

JOANNE CHUVALO

Plaintiff

-and-

MITCHELL WORSOFF, MITCHELL CHUVALO, VANESSA CHUVALO, TANYA N. ROAD and TOM DOYLE

Defendants

Christopher Graham, for the plaintiff (responding party)

Gavin Tighe and Kevin Mooibroek, for the defendant Worsoff (moving party)

Rahul Shastri for the defendants Mitchell and Vanessa Chuvalo (moving parties)

Sean Lawler and Sam Zucchi, for the defendant Road (moving party)

Heard: March 1, 2022, by video conference

Justice R. Chown

REASONS FOR DECISION

Introduction

1The divorce proceedings between Joanne Chuvalo and George Chuvalo settled on May 13, 2019. Joanne started this lawsuit on July 29, 2020. She sues George’s children, Mitchell and Vanessa Chuvalo, as well as the lawyer who initially acted for George in the divorce proceedings, Tanya Road, and the lawyer who prepared powers of attorney for George in 2014, Mitchell Worsoff.¹ She advances several claims based primarily on her allegation that the defendants conspired together to harm her by commencing and advancing the divorce proceedings when, in fact, George did not want to be divorced.

2In this motion, the defendants jointly move to have this action stayed or dismissed on various grounds, including on the ground that it is an abuse of process. The primary argument of the defendants is that it would be improper for the court to let this lawsuit proceed because it is an attempt to get around the divorce settlement and to resurrect and re-argue issues that were resolved in the divorce proceedings.

3The primary response of Joanne is that this is not an attempt to get around the settlement, but rather an attempt to obtain compensation from the defendants for the conspiracy among them to harm her. She argues that it is the defendants who abused the processes of the court by commencing and continuing the divorce proceedings and by their actions in the divorce proceedings. She says it would have been improper for her to try to make the claims made here in the divorce proceedings (or in a connected guardianship application). She says the divorce settlement represents mitigation of the damages caused to her by the defendants’ conspiracy. As a result, she says this case should be allowed to proceed to trial.

4In these reasons, for simplicity and to avoid confusion, I will refer to the parties named Chuvalo by their first names.

The Pleaded Causes of Action

5Under separate headings, the amended statement of claim (ASOC) pleads five causes of action. The table below sets out the five causes of action and the defendants alleged to be implicated in each:

#	Cause of Action	Defendants
1	Conspiracy	All defendants
2	Abuse of process	Mitchell, Vanessa, and Ms. Road
3	Defamation	Mitchell and Vanessa
4	Intentional interference with economic relations	All defendants
5	Intentional infliction of mental suffering	All defendants

6“Abuse of process” can be pleaded as a cause of action and as a defence.² In this case, Joanne claims that she has a cause of action for the tort of abuse of process in relation to the divorce proceedings, i.e., that an abuse of the court’s processes occurred in the divorce proceedings. The defendants assert that the doctrine of abuse of process by relitigation bars this action because it is an attempt to relitigate the issues that were resolved in the divorce proceedings.

7In other words, the phrase “abuse of process” sometimes describes a claim and sometimes describes a defence, and both are in play here. This may lead to confusion for the reader. To assist, going forward I will refer to the claim using the full phrase “the tort of abuse of process” and the defence using the full phrase “abuse of process by relitigation.”

Issues

8The issues are as follows, with my conclusions indicated in italics.

1. Should Joanne be permitted to pursue her claims against the adverse lawyers?

No.

2. Does res judicata or issue estoppel apply to Joanne’s claims?

No.

3. For each of the causes of action that Joanne advances (other than defamation): (a) should the claim be dismissed under rule 21.01(3)(d) because it is barred by the doctrine of abuse of process by relitigation; and (b) should the claim be struck out under rule 21.01(b) because it discloses no reasonable cause of action?

I will deal with each cause of action individually but yes, these claims must all be dismissed and/or struck.

4. Should Joanne’s claim for defamation be struck because it is not properly pleaded or because it is barred by operation of s. 5 or 6 of the Libel and Slander Act?

Yes, with leave to amend.

9I will address these issues in order after providing some background.

Background

10George and Joanne were married on January 27, 1994. They both had children from prior relationships. The defendants Mitchell and Vanessa are George’s children. George and Joanne had no children together.

11George and Joanne both came to the marriage with assets, and they acquired assets during the marriage. Notably, Joanne bought several real estate properties, and these were registered solely in her name.

12George’s mental capacity declined during the marriage. There is no agreement among the parties as to the timing and extent of George’s decline, or as to the legal effect of his decline.³ In fact, the parties have not always taken consistent positions on the question of George’s capacity.⁴

13At the heart of Joanne’s claim in this action is her allegation of a conspiracy among the defendants. Joanne alleges that this conspiracy started in 2012 when Mr. Worsoff suggested a way to “screw” Joanne by inducing George to sign powers of attorney and a will and then commencing a divorce application on his behalf. This would result in equalization and a division of property between George and Joanne, including the properties registered solely in Joanne’s name. Instead of Joanne controlling and inheriting George’s estate, Mitchell and Vanessa would control and inherit it. Joanne alleges that Mr. Worsoff was George’s and Mitchell’s friend in addition to being a lawyer, and that Mr. Worsoff suggested they use his friend Ms. Road “to do the family law legal work for Mitchell to break George and Joanne up.”

14George and Joanne physically separated in September of 2013. In the ASOC, Joanne takes the position that “there was never any separation in the legal sense.” She says that the physical separation initially occurred because of a bed bug infestation in the home that George and Joanne shared, and she and George did not resume cohabitation because the defendants “cloistered” George from her and told George lies to drive a wedge between them.

15On March 26, 2014, George signed power of attorney documents, naming Mitchell and Vanessa as his attorneys. These documents were prepared by Mr. Worsoff. On November 17, 2014, George signed a will disinheriting Joanne. Joanne contests the validity of the powers of attorney and will.

16On November 20, 2015, George and Joanne each commenced separate applications under the Divorce Act and the Family Law Act.

17George’s application claims for a divorce. Joanne’s does not.

18Ms. Road initially acted for George in the divorce proceedings. George did not sign the application at the time it was issued. His application stated that the applicant was “George Chuvalo by way of his guardians ad litem – Vanessa Chuvalo and Mitchell Chuvalo.” No order was sought to determine that George was a “special party” (i.e., mentally incapable) within the meaning of rule 2(1) of the Family Law Rules or authorizing a representative for George under Rule 4(2) of the Family Law Rules. Despite this, George’s divorce application advanced, albeit slowly.

19In the meantime, Joanne commenced a guardianship application on February 1, 2016. In that application, Joanne claims, among other things, an order appointing a bank as guardian of George’s property.

20A case conference in the divorce proceedings was held in October of 2016. A trial management conference was held in April of 2017. Joanne did not file her answer in George’s divorce application until November 20, 2017.

21In her answer, Joanne asserted that “These proceedings are a sham. They always have been. The Applicant [George] wants to stay married to the Respondent… The Respondent wants to remain married to the applicant and has always wanted to be married to him.” Joanne’s answer also asserts that George “has been effectively kidnapped by a gang of conspirators including his children Mitchell Chuvalo and Vanessa Chuvalo, Tom Doyle and others (the “gang”) who trick him or forcibly take him away from the Respondent every time he tries to return to the Respondent…”

22Joanne advances these allegations in this action as well.

23On November 6, 2017, Kiteley J. made an order setting out what the issues at trial would be. To regularize the proceeding, she directed George to replace the existing application signed by Mitchell with an application signed by George. George complied with this order. From that point, Mitchell and Vanessa were no longer George’s purported litigation guardians.

24Joanne sought leave to appeal this November 6, 2017 order. Among other concerns, Joanne’s position was that George lacked capacity to sign the application. After the order but before the December 18, 2017 hearing of the leave to appeal motion, a capacity assessor gave the opinion that George lacked the capacity to instruct counsel. This opinion was not disputed by either side. Pattillo J. dismissed the leave to appeal motion, holding that the issues were moot.

25On January 8, 2018, Kiteley J. made a consent order appointing the Public Guardian and Trustee (PGT) as representative of George pursuant to rule 4(3) of the Family Law Rules with all the powers of a Litigation Guardian under rule 7 of the Rules of Civil Procedure. From that point, Ms. Road was no longer George’s lawyer. A trial proceeded at which Kiteley J. determined the narrow issue of whether George had the capacity to reconcile with Joanne. She found that he did not.⁵

26The parties subsequently settled the issues in the divorce proceedings by way of minutes of settlement that were signed by counsel on May 13, 2019, subject to court approval for George. On May 23, 2019, Hood J. approved the settlement and signed an order incorporating its terms. The approved settlement primarily dealt with equalization and division of property. The other claims in the divorce proceedings were dismissed. No divorce order was made. George and Joanne remain married.

27The guardianship application was not dealt with in the settlement. It has been dormant since, and remains outstanding.

28Joanne commenced this action on July 29, 2020.

Rule 21 Motions

29A motion such as this one is designed to stop a lawsuit at its early stages, before a trial or other pre-trial procedures. The defendants must show that even if the facts as alleged in the statement of claim are true, the case should not be allowed to proceed. Whether or not the allegations are true is not yet decided and would be decided at trial, but for the purposes of the motion, the allegations in the statement of claim are assumed to be true. The court assesses the merits of the allegations on this basis and will only dismiss the case in the clearest of cases, and only if it is “plain and obvious” and “beyond doubt” that the claim cannot succeed.⁶

30Both sides in this motion have submitted affidavits. However, I may not consider the evidence in assessing the motion under rule 21.01(1)(b). The affidavit evidence is admissible in the motions under rules 21.01(3)(d). However:

the evidence must be relevant to, and considered for the purposes of, the motion that is before the court. In other words, the ability to file evidence in a pleadings motion does not change the character of the motion, which is not to determine the merits, but to decide whether the pleading should be struck, as having no chance of success because it is frivolous and vexatious or an abuse of process.⁷

Issue #1: The claims against adverse lawyers

31Lawyers owe duties of care and duties of loyalty to their clients. They owe no such duties to adverse parties. Despite this, lawyers sometimes get sued by the parties they act against. For good reason, such claims are treated with scrutiny by the courts. Our adversarial system depends on the ability of lawyers to fearlessly advance their clients’ positions.

32In our system, the lawyer gives advice, and the client makes decisions and instructs the lawyer. A lawyer’s advice as to strategy is typically subject to privilege and cannot be disclosed by the lawyer without the client’s consent. An adverse party who feels wronged by the strategy taken is not entitled to know if the strategy was taken in accordance with or against the adverse lawyer’s advice. Parties cannot get around this by suing the adverse lawyer.

33Our system requires that any complaint over the strategy taken by an adverse party must be resolved in the litigation where that strategy was taken, and not in a further lawsuit. If our system was without this feature, serial lawsuits could spawn from a single underlying dispute. “There would be a temptation, which many would find irresistible, to relitigate in actions against their opponent’s counsel the issues which they have lost in the main litigation, or to attempt to handicap the other side by eliminating experienced and knowledgeable counsel from the case.”⁸

34The rule against suing an adverse lawyer is authoritatively stated in The Law of Civil Procedure in Ontario:⁹

The lawyer of record has no duty of care or liability to the opposing party for advising his client to sue or to defend the proceedings, and solicitor-and-client privilege not only protects the communications between lawyer and client, it also protects the lawyer from being sued by the opposing party under the guise of any cause of action for his or her conduct of a case.

35This statement is supported by numerous authorities. A sample of reported cases is found in Appendix A. As these cases show, claims against adverse lawyers are frequently dismissed at the pleadings stage or in summary judgment motions.

36There is no single settled doctrinal approach to these cases. Sometimes courts rule that they do not disclose a reasonable cause of action and sometimes that they are an abuse of process.¹⁰

37Here, there is nothing in the ASOC to suggest that either Ms. Road or Mr. Worsoff may have owed a duty to Joanne, and no such duty is pleaded.

38There is a feature of this case that might be said to distinguish it. Specifically, George’s capacity to instruct counsel is challenged and it is alleged that rather than receiving instructions from George, Ms. Road and Mr. Worsoff were conspiring with each other and with Mitchell and Vanessa to harm Joanne. That is, it is effectively alleged that they were not acting within the scope of a valid retainer or validly taking instructions from George. Furthermore, it is alleged, at paragraph 61 of the ASOC, that Ms. Road “was not carrying out George’s instructions, she was carrying out Mitchell and Vanessa’s instructions in furtherance of the Conspiracy.”

39But whether George lacked capacity to instruct counsel when the divorce proceedings commenced or at any other point, the duties owed by Ms. Road and Mr. Worsoff would not somehow shift from George to Joanne or anyone else. Whether George had capacity to grant the powers of attorney that he signed in 2014 or 2016 was invalid or not, Ms. Road and Mr. Worsoff still owed a duty of loyalty and other duties only to George. They never owed any duty to Joanne, and she does not even plead that they did.

40It is not open to Joanne to advance a claim against Ms. Road and Mr. Worsoff for an alleged breach of duty by them to George. If such a claim is to be made, it is to be made by the PGT, George’s litigation guardian. The PGT advanced no such claim, but rather it proceeded to negotiate a resolution of the divorce proceedings.

41There could never have been any doubt that Ms. Road was acting adverse to Joanne. There is nothing in the ASOC that could possibly suggest that Joanne ever relied on Ms. Road or that Ms. Road should have known of this reliance.

42With respect to the claim against Mr. Worsoff, the ASOC asserts that he is a lawyer, and also that he was George’s and Mitchell’s friend. It does not specifically assert that Mr. Worsoff acted as George’s lawyer, but this can be inferred by the assertion that Mr. Worsoff prepared the 2014 powers of attorney that George signed. It is further alleged that Mr. Worsoff came up with the plan to “screw” Joanne that was eventually followed.

43The ASOC goes on to allege that “George was tricked, unduly influenced to sign, or did so under duress, or did not appreciate the nature and consequences” of the powers of attorney. The ASOC does not specifically say who tricked, influenced, or pressured George, but it is implied that it was one or more of the defendants who did this, and a generous reading of the pleading is required and would include Mr. Worsoff. The other allegation against Mr. Worsoff is that he “suggested they use his friend” Ms. Road “to do the family law legal work for Mitchell to break George and Joanne up.”

44Again, however, the complaints against Mr. Worsoff would be complaints for George’s litigation guardian to advance, and not for Joanne to advance. If true, these actions would represent a breach of duty to George, not to Joanne.

45It is plain and obvious that Joanne’s claims against Ms. Road and Mr. Worsoff cannot succeed. It is also clear that they should not be permitted to proceed because they offend the doctrine of abuse of process by relitigation.

46For these reasons, the entire claims against Ms. Road and Mr. Worsoff must be dismissed under rule 21.01(3)(d).

Issue #2: Res judicata and issue estoppel

47The Worsoff factum argues that res judicata and issue estoppel apply to bar Joanne’s claim. However, none of the defendants were parties to the divorce proceedings, so the requirement of mutuality of parties is absent and therefore these doctrines are inapplicable. The possibility that, as purported litigation guardians, Mitchell and Vanessa were “privies” to the divorce proceedings was not addressed in argument.

48The Worsoff factum also argues that this claim is a collateral attack on the consent order of Hood J. arising from the settlement. This argument is misplaced. Joanne’s claim does not seek to overturn the order or the settlement or its legal effect. She did not want a divorce and a divorce was not part of the settlement. She argues that George will not be affected by this claim as he is not a party to it.

49Rather than analyzing this matter under the doctrine of collateral attack, it is more appropriate to assess it under the doctrine of abuse of process by relitigation. On this point, this case has a parallel with Toronto (City) v. Canadian Union of Public Employees (CUPE), Local 79,¹¹ where Arbour J. stated that the better approach was “to go directly to the doctrine of abuse of process.” The same is true here. It is better to go directly to the doctrine of abuse of process by relitigation.

Issue #3: Application of: (a) the doctrine of abuse of process by relitigation; and (b) the “discloses no reasonable cause of action” test

50In this section, I will apply the doctrine of abuse of process by relitigation to each of the claimed causes of action and assess whether it is appropriate to dismiss each cause of action under rule 21.01(3)(d). “Abuse of process by relitigation bars a second proceeding when the integrity of the judicial decision-making process in the first proceeding will be undermined.”¹² The doctrine engages the inherent power of the court to prevent the misuse of its procedures.¹³ It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. The doctrine transcends the interests of litigants. It focuses on the integrity of the entire system.¹⁴

51I will also assess the adequacy of the pleading for each cause of action and apply the test under rule 21.01(1)(b).

52My conclusions are as follows.

Cause of Action	(a) Should the claim be dismissed under rule 21.01(3)(d) because it is barred by the doctrine of abuse of process by relitigation?	(b) Should the claim be struck out under rule 21.01(b) because it discloses no reasonable cause of action?
The tort of abuse of process	Yes	No
Conspiracy	Yes	No
Intentional interference with economic relations	Yes	Yes
Intentional infliction of mental suffering	Yes	Yes

53To avoid duplication in my reasoning for each cause of action, the approach I will take will be to consider:

A. what issues were decided in the divorce proceedings.

B. what issues could have been decided in the divorce proceedings.

C. what issues Joanne will need to relitigate to prove her damages in this case.

D. for each of the four causes of action listed above:

i. what issues Joanne will need to relitigate to prove each element of the cause of action (other than damages); and

ii. whether the pleading is adequate (that is, if the allegations are accepted as true, does the ASOC disclose any reasonable basis for the cause of action).

A. Issues decided in the divorce proceeding

54The order and endorsements and settlement of the divorce proceedings resolve the following issues:

a. The settlement was in George’s best interests. Hood J. made this finding in his endorsement of May 23, 2019 when he approved the settlement.¹⁵

b. As at January 2018, George lacked capacity to instruct counsel and lacked capacity to reconcile with Joanne. Kiteley J. made these findings in her order of January 8, 2018 and her endorsement of January 12, 2019.¹⁶

c. The divorce settlement was fair to both George and Joanne. This is implicit in the fact of the settlement and the approval of the settlement by Hood J. From this, it follows that:

i. The equalization and division of property between George and Joanne was fair and appropriate.

ii. It was fair and appropriate to sell the properties that were sold as a result of the settlement.

iii. The resolution of costs in the divorce proceedings was fair and appropriate.

iv. George and Joanne implicitly accepted that the parties in the divorce proceedings were the appropriate parties required to resolve the foregoing.

B. Issues that could have been decided in the divorce proceeding

55The defendants submit that the proper forum to have determined the conspiracy claim would have been the divorce proceedings. They argue that if the divorce proceedings were a “sham,” the correct place to assess that was in the divorce proceedings. And similarly, if George had been “effectively kidnapped” and withheld from his wife, the correct place to determine that would be in the divorce proceedings.

56In response, Joanne argues, “It is untenable to argue that Joanne had the ability to move to add [the defendants] to the Divorce Application and massively expand the scope of that proceeding.” In support of this position, Joanne observes that on January 12, 2018, Kiteley J. made an order prohibiting either party from bringing further motions without leave. It was clear by that point that Kiteley J. was trying to narrow the issues and it is unlikely she would have permitted the expansion of the scope of the divorce proceedings.

57One problem with this argument is that the divorce proceedings started in November of 2015, so there was considerable time for Joanne to bring a motion to add parties to the divorce before Kiteley J.’s January 12, 2018 order. George’s capacity and his wishes were front and centre from the beginning. Joanne could have brought the issue of George’s capacity forward much sooner than she did. Similarly, Joanne could have sought to have a rule 4(3) representative appointed for George immediately from the outset of the proceeding.

58There is at least one example where the Court of Appeal has found it appropriate to permit a conspiracy claim to be maintained against family members in divorce proceedings. In Leitch v. Novac,¹⁷ the applicant wife added the husband’s family members as parties to her divorce application and claimed against them for conspiracy. The family members moved for partial summary judgment dismissing the claims against them. The motions judge granted the motion and dismissed the conspiracy claim. The Court of Appeal overturned the dismissal, noting that sometimes family members insert themselves into the litigation process and take inappropriate steps, including helping a party hide assets or income. It held that a conspiracy claim was an appropriate response to this conduct.

59Joanne distinguishes Leitch on the basis that in that case, the husband was an alleged co-conspirator, which is not the case here. George is not alleged to have been part of the conspiracy. George is not a party to this action. The defendants were not parties to the divorce proceedings. Because of this, Joanne argues that this proceeding is the proper forum for Joanne to make her claims.

60I prefer the defendants’ arguments on this point. Mitchell and Vanessa styled themselves as George’s litigation guardians from the outset of the divorce proceedings. There is an immense factual overlap between the two matters. When it came time for Joanne to settle the divorce proceedings, it ought to have occurred to her that by settling she was accepting that the divorce settlement was fair and appropriate. She should have recognized that she was agreeing to resolution of her issues with George, and that by settling she risked being precluded from making any closely related claims against others, especially where there was a possibility that those she sued might be able to claim over against George.

61The doctrine of abuse of process by relitigation can be used not only to prevent relitigation of issues that were actually determined but also those that could have been determined.¹⁸ In such a case, the doctrine should be applied with caution, with a focus on the strength of the connection between the claims, to avoid injustice. For instance, here it could be argued that Joanne’s defamation claim could have been brought in the divorce proceedings along with her other claims against the defendants. However, I would not accept that position. The facts in issue in the divorce proceedings are only loosely connected to the defamation claim but largely overlap with the facts pled in support of the abuse of process, conspiracy, intentional interference with economic relations, and intentional infliction of mental suffering claims.

62I conclude Joanne could and should have made the claims she makes here (other than the defamation claim) in the divorce proceedings.

63It must be acknowledged that the doctrine of abuse of process by relitigation is “an extraordinary remedy to be applied sparingly and only in the clearest and most obvious cases.”¹⁹ An overly robust application of the doctrine will impair access to justice. Preventing legitimate claims from being advanced must be avoided. At the same time, repeat litigation can impair, rather than enhance, access to justice. It is necessary to balance these competing concerns.

64For the reasons developed further below, in this case, the balancing weighs against Joanne.

C. Relitigation of the damages issue

65Joanne’s damages claims highlight why the doctrine of abuse of process by relitigation must be applied in this case.

66In paragraphs 13 to 26 of the ASOC, Joanne describes her and George’s financial circumstances during the relationship and the properties they acquired, as well as the holding company they set up. In paragraph 125 of the ASOC, Joanne sets out a long list of losses or injuries she alleges she has sustained as a result of the defendant’s conduct. Some examples from the list are:

• loss of access to information about her husband’s condition and circumstances;

• mental distress;

• loss of property as a result of the settlement entered into in the Divorce Application;

• out-of-pocket expenses relating to preparing her properties for sale;

• damage to her properties;

• lack of enjoyment of her properties;

• taxes and other expenses incurred due to upending Joanne’s financial plans; and

• legal expenses from the Divorce Application and other legal expenses.

67From these claims, it must be inferred that Joanne perceives the divorce settlement was insufficient. For example, her claim for “loss of property as a result of the settlement she entered into in the Divorce Application” must mean she thinks she settled for less than she was entitled to because of the conduct of the defendants. In argument on this motion, Joanne asserted that she was largely successful in the divorce proceedings, but adds that the settlement represents mitigation of her losses caused by the defendants. This only confirms that this action is, at least in part, intended to redress what she perceives as an inadequate divorce settlement.

68If Joanne is permitted to advance the position that the divorce settlement was inadequate or unfair to her due to the conduct of the defendants, all the issues in the divorce proceedings will become live issues in this action. In family law proceedings, the issues tend to be intertwined. To settle, a party may give up on a strong support claim in exchange for being able to keep title to the matrimonial home. Allowing Joanne’s claim for the tort of abuse of process to proceed could well result in the parties to this action relitigating all of the issues in the divorce proceedings to advance their positions that overall, the settlement was fair or unfair.

69In addition, the defendants argue they were acting in George’s best interests in the divorce proceedings. It would be open to the defendants to argue that, to the extent that Joanne’s settlement was insufficient, George has been unjustly enriched. It is not hard to anticipate the possibility that they would seek to make a claim over against George. This cannot be permitted as it would undermine the integrity of the adjudicative process in the divorce proceedings.

D. Causes of action advanced

70I will now consider the four causes of action listed for issue 3, and for each one, consider:

i. whether the pleading is adequate (that is, if the allegations are accepted as true, does the ASOC disclose any reasonable basis for the cause of action); and

ii. what issues Joanne will need to relitigate to prove each element of the cause of action (other than damages).

The Tort of Abuse of Process

71The elements that a plaintiff must prove to be successful with a claim for the tort of abuse of process are:²⁰

1. the plaintiff is a party to a legal process initiated by the defendant;

2. the legal process was initiated for the predominant purpose of furthering some indirect, collateral and improper objective;

3. the defendant took or made a definite act or threat in furtherance of the improper purpose; and

4. some measure of special damage has resulted.

72I agree with Joanne that the ASOC adequately sets out a factual basis, or a potential factual basis, for each element of this tort, at least for the claim against Mitchell and Vanessa. Accepting the allegations in the ASOC to be true, it is not plain and obvious that the ASOC discloses no cause of action.

73The ASOC sets out a basis for the first element by asserting that it was in substance Mitchell and Vanessa who started the divorce proceedings.

74To support the second and third elements of the tort, Joanne points to her allegations in the ASOC that George did not want a divorce, that he never intentionally legally separated from Joanne, that he did not want an equalization or even appreciate what an equalization was, that he never instructed Ms. Road to make the allegations in the divorce proceedings or to file the divorce application, that Ms. Road was not carrying out George’s instructions but rather Mitchell and Vanessa’s instructions, that George repeatedly tried to re-unite with Joanne but the defendants interfered, that they misled George, that they made a false complaint to the OPP, that they lied when they told George’s physicians that George’s power of attorney was valid, and that there was no marital relationship.²¹ Joanne also alleges that, in practical terms, Mitchell and Vanessa and their families would benefit from the division of property. Because Joanne held title to several properties, equalization in the divorce proceedings would mean that George’s estate would be larger after the division of marital property, and Mitchell and Vanessa’s “own families would inherit based on a Will they would trick or otherwise cause George to sign.”²²

75These allegations provide an adequate basis for the second and third elements of the tort.

76However, these allegations highlight the fact that if this action is permitted to go ahead, relitigation of issues in the divorce will be necessary.

77The second and third elements reflect the crossover of the tort of abuse of process and the doctrine of abuse of process by relitigation. It has been held that, in combination, these two elements keep litigation between parties from multiplying beyond the original proceedings and incentivize parties to address all issues arising from a dispute in a single proceeding.²³ The second element requires that the predominant purpose of the underlying litigation must be both improper and collateral. The third element requires an improper purpose and a “definite step,” which can be the commencement or threat of litigation. These constraints limit the cause of action to cases where the underlying litigation was pursued for an illegitimate purpose and a purpose other than the stated purpose of the litigation.²⁴ Bringing an action, even a factually groundless action, for a wrongful purpose is not sufficient to constitute the tort of abuse of process.²⁵ “What lies at the heart of the cause of action is an act, or threat of an act, outside the ambit of the action. The essence of the action therefore is the use of legal process to gain an end which the legal process does not entitle the plaintiff to obtain.” [Emphasis added.]²⁶

78I repeat that the ASOC provides an adequate factual basis for the second and third elements of the tort, but examining the factual contentions made reveals that the issues in play in the divorce proceedings have already been decided. Consider two examples from the list.

79First, consider the allegation that George repeatedly tried to re-unite with Joanne, but the defendants interfered. This is a repeated theme in the ASOC.²⁷ It was also a major issue from at least 2016 and was a significant element of a trial on the narrow issue of whether George had the capacity to reconcile with Joanne. Kiteley J. found that he did not.²⁸ In that trial, Joanne took the position that George did have capacity to decide to reconcile. George had said on several occasions that he wanted to live with his wife, but Kiteley J. held, at para. 61 and 62, that “just because he says he wants to live with his wife does not mean that that is a reliable and durable statement.” He may not have understood the consequences of changing the status quo between them, such as changing the separation date and the valuation date, as well as the emotional impact if the attempted reconciliation failed.

80It would offend the integrity of the adjudicative process to allow Joanne to try to again prove that George repeatedly tried to re-unite with Joanne.

81Second, consider the allegation that, as George’s beneficiaries, Mitchell and Vanessa stood to gain from the divorce settlement. This is a necessary consequence that flows from the settlement. It is inconsistent with the deemed fairness of the settlement for Joanne to complain that Mitchell and Vanessa are enriched by it.

82I again conclude that it would be detrimental to the adjudicative process overall to allow Joanne to proceed with her claim for the tort of abuse of process, because it would undermine the settlement of the divorce proceedings and the overall integrity of the adjudicative process.

83Joanne’s claim for the tort of abuse of process must therefore be dismissed under rule 21.01(3)(d) as an abuse of process by relitigation.

Conspiracy

The law recognizes two types of actionable conspiracies: conspiracy to perform an unlawful act, and conspiracy to injure.

To be successful with a claim of conspiracy to injure, the plaintiff must establish the following essential elements:

1. the defendants acted in combination;

2. the defendants intended to harm the plaintiff; and

3. the defendants’ conduct caused harm to the plaintiff.

84To be successful with a claim of conspiracy to perform an unlawful act, the plaintiff must establish the following essential elements:

1. the defendants acted in combination;

2. the defendants committed an unlawful act, i.e., a crime, tort, or breach of statute;

3. the defendants knew or should have known that injury to the plaintiff was likely to occur from their misconduct; and

4. the defendants’ misconduct in furtherance of the conspiracy caused harm to the plaintiff.

85The ASOC does not explicitly indicate which type of conspiracy is alleged against the defendants.²⁹ Joanne argues that her claims fit under both types.³⁰

86I agree with Joanne that the ASOC adequately sets out a factual basis, or a potential factual basis, at least for the claim against Mitchell and Vanessa, for each element of both types of conspiracy. Accepting the allegations in the ASOC to be true, it is not plain and obvious that the ASOC discloses no cause of action for conspiracy. However, again, these allegations highlight the fact that if this action is permitted to go ahead, relitigation of issues in the divorce will be necessary.

87To a significant extent, the considerations here overlap with the considerations already discussed above. For example, the assertion that the divorce was a sham and that the defendants effectively kidnapped George may support the “acted in concert,” “intended to harm,” and “unlawful acts” elements of conspiracy. I need not repeat my views already expressed as to the problems these allegations present. I will consider only three examples that Joanne refers to in her factum to support the “unlawful act” element. She points³¹ to the following allegations in her pleading:

• Ms. Road falsely represented herself as acting for George and in so doing misled the court about her retainer and about George’s wishes/instructions or lack thereof. Surely this is something that should have been addressed in the divorce proceedings, if only in the determination of costs.

• The defendants removed $58,000 from Joanne’s joint account. This was surely addressed as part of the equalization issue in the divorce proceedings.

• Mitchell swore a false affidavit in the divorce proceedings. At paragraph 60 of the ASOC, Joanne says that Mitchell’s affidavit falsely asserted, among other things, that George and Joanne were separated, that the marital wealth was solely afforded by George, that properties registered in Joanne’s name were solely paid for by George, that Joanne had misappropriated $462,302.21 from George and Joanne’s holding company, and that Joanne was recklessly depleting family assets including by gambling. Surely these are matters that were or could have been addressed in the divorce proceedings.

88I again find that allowing any of these factual contentions to be resurrected and relitigated in this action would represent a serious attack on the integrity of the adjudicative process and settlement in the divorce proceedings, and would be detrimental to the adjudicative process overall.

89Joanne’s claim for conspiracy must therefore be dismissed under rule 21.01(3)(d) as an abuse of process by relitigation.

Intentional Interference with Economic Relations

90There is little argument in the factums and there was little argument in the oral hearing directed to this aspect of the claim. The ASOC does recite the elements of this tort, which are:

1. the defendant intended to harm the plaintiff’s economic interests;

2. the interference was by means of an actionable civil wrong against a third party; and

3. the plaintiff suffered economic loss or harm as a result.

91Joanne’s factum, at paragraph 55, asserts that this claim is supported by allegations in the ASOC that:

• the defendants arranged for George to have two properties that were registered in Joanne’s name designated matrimonial properties;

• Mitchell and Vanessa were lying to George about Joanne in an effort to drive a wedge between them;

• Mitchell and Vanessa unduly influenced George to remove $58,000 from a joint bank account;

• the defendants had George sign a will when he lacked testamentary capacity; and

• the defendants commenced the divorce application in George’s name, ostensibly as his litigation guardians.

92For the reasons I have already discussed above, permitting this aspect of the claim to proceed would run afoul of the doctrine of abuse of process by relitigation. Therefore, Joanne’s claim for intentional interference with economic relations must be dismissed pursuant to rule 21.01(3)(d).

93I also find that the pleaded allegations in the ASOC do not raise a reasonable basis to support this cause of action. Joanne’s factum references Gaur v. Datta,³² which in turn references A.I. Enterprises Ltd. v. Bram Enterprises Ltd.³³ I have reviewed these cases as well as several leadings torts texts on this point.³⁴ The pleaded facts of this case are entirely different in character from Gaur, A.I. Enterprises, or the cases cited in these texts. The Law of Torts in Canada³⁵ cites the trial decision in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc.³⁶ for the proposition that “[t]he essence of this emergent tort is that someone intentionally employs an unlawful means to interfere with a business relationship or business expectancy.” Similarly, in Correia v. Kanac Kitchens,³⁷ the Court of Appeal stated that this tort is one that aims “to give redress in the context of deliberate commercial wrongdoing.”

94There is no business or commercial element in the case before me. The conduct complained of here is not the type of conduct that this tort is designed to address. The Supreme Court of Canada held in Bram Enterprises Ltd. v. A.I. Enterprises Ltd.³⁸ that this tort, which it labelled “unlawful interference with economic relations,” “should be kept within narrow bounds.”

95Based solely on the ASOC and assuming the allegations of fact in it to be true, it is plain and obvious and beyond doubt that Joanne cannot succeed with her claim for intentional interference with economic relations. Had I not decided to dismiss this aspect of the claim under rule 21.01(3)(d), I would strike it under rule 21.01(1)(b), without leave to amend.

Intentional Infliction of Mental Suffering

96The ASOC at paragraph 122 pleads a claim of intentional infliction of mental suffering. The elements of this tort are recited:

1. flagrant or outrageous conduct on the part of the defendants;

2. which is calculated to produce harm, and

3. results in a visible and provable injury to the plaintiff.

97The ASOC asserts that the defendants’ conduct was calculated to destroy Joanne’s life and her resolve to defend her marriage and her rights.

98Again, there is little argument in the factums and there was little or no argument in the oral hearing directed to this aspect of the claim. Joanne’s factum merely states, at paragraph 58, that the factual elements pled in support of this cause of action “are pled in the paragraphs set out above for the other torts.”

99It would therefore seem that Joanne relies on the way the divorce proceedings were litigated as an element of the “flagrant or outrageous conduct.” The ASOC also pleads, at paragraph 115, that “the Conspirators have cloistered George from his wife Joanne,” and at paragraph 116 that they have financially exploited George. She then pleads at paragraph 117 that these actions “inflicted severe mental distress” on Joanne.

100For the reasons I have already discussed above, permitting this aspect of the claim to proceed would run afoul of the doctrine of abuse of process by relitigation. Therefore, to the extent that Joanne’s claim for intentional infliction of mental suffering is based on these allegations, it must be dismissed pursuant to rule 21.01(3)(d).

101There are some other briefly pleaded elements that may also form the basis of Joanne’s claim of intentional infliction of mental suffering. At paragraph 110, she asserts that Mitchell and Vanessa released information that George was receiving radiation treatments for prostrate cancer to the Toronto Star. I infer from this, and from the allegations that George was being “cloistered” from Joanne, that Joanne was unaware of this and became aware of it when she read it in the Toronto Star. She pleads that the “release of this information in this manner was intended to, and did, cause great emotional distress and harm to Joanne.”

102She also pleads at paragraph 111 of ASOC that “the Conspirators” (all the defendants) prevented George from attending a private restaurant dinner she had arranged to celebrate their 25th wedding anniversary in January of 2019, after promising that they would facilitate his attendance. She pleads that this was “calculated to inflict mental distress on Joanne, and it did.” It is not in issue that at that time, none of the defendants remained involved in the divorce proceedings. The PGT became George’s litigation guardian on January 8, 2018.

103I have reviewed the sections dealing with this tort in The Law of Torts in Canada ³⁹ and Canadian Tort Law,⁴⁰ and some of the cases cited in these texts. There are few obvious parallels in the pleaded facts of this case to the facts of the cases cited by these authors. The cases tend to be ones in which the defendant has intentionally caused a shock to the plaintiff,⁴¹ although sometimes the claim is supported by an outrageous course of conduct that is intended to, and could be expected to, cause mental distress.

104A judge dealing with a motion over the sufficiency of a pleading for intentional infliction of mental suffering should examine the claim as pleaded. “It is not enough simply to submit that the pleaded conduct is extreme, flagrant, and outrageous. [The plaintiff] must actually plead conduct that is extreme, flagrant, and outrageous.”⁴²

105Here, the allegation that Mitchell and Vanessa released information about George’s health to a Toronto Star reporter, and Mitchell and Vanessa refused to allow George to attend a 25th anniversary dinner with Joanne, is simply not extreme, flagrant, or outrageous conduct of the kind required in the jurisprudence.

106In my view, these aspects of the ASOC do not disclose a reasonable basis for the element of outrageous conduct. It is plain and obvious and beyond doubt that Joanne cannot succeed based on the claim as presently pleaded, and, accordingly, paragraphs 110, 111, 115, 116, 117, 122, and the phrase “intentional infliction of mental suffering” in paragraph 125 should be struck from the ASOC, with leave to amend to plead a tenable claim for intentional infliction of emotional distress, if so advised. The pleading shall not raise any matter that would require relitigation of any of the issues determined by the final order in the divorce proceedings.

Issue #4: The defamation claim

107Joanne advances a claim for defamation but only against Mitchell and Vanessa, and not the other defendants.

A. Adequacy of the Pleading

108Paragraph 110 of the ASOC states that Mitchell and Vanessa “defamed and slandered Joanne to a reporter at the Toronto Star.” The defamatory words are not set out in the pleading. The ASOC then says that Mitchell and Vanessa “publicized their false allegations in the Divorce Application.” It then says that “Mitchell repeated to the media his allegations in the Divorce Application, which became publicized in an article on July 13, 2018.”

109Paragraph 120 of the ASOC refers to these allegations and recites the elements of the tort of defamation. It then asserts that “Mitchell and Vanessa encouraged, instructed or authorized the person or people to whom they made these statements to publish them, or provided them with information intending or knowing that it would be published.”

110Defamation must be pleaded with particularity. This pleading does not even recite the words complained of. It is wholly inadequate to support a claim for defamation. I will strike paragraphs 110 and 120, and the word “defamation” in paragraph 125 of the ASOC, with leave to amend. Should Joanne seek to amend her claim to address this issue, I encourage reference to chapter 19 of Brown on Defamation.⁴³

B. Notice and Limitations Issues

111To be of assistance to the parties, I will comment on the notice and limitations defences raised by Mitchell and Vanessa.

112A copy of the July 13, 2018 Toronto Star article was included in an affidavit of Joanne dated September 12, 2018 filed in the divorce proceedings, meaning that Joanne was aware of the article by that date. The statement of claim was issued on July 29, 2020. That is, more than two years after publication but less than two years from the date Joanne is known to have been aware of it.

113Mitchell and Vanessa’s statement of defence pleads that the action is barred by the Limitations Act, 2002, S.O. 2002, c. 24. The two-year time limit in that act applies to defamation other than a libel that appears in a broadcast or newspaper. There may be uncertainty over when Joanne became aware of the article and therefore there may be a discoverability argument regarding this two-year limitation period.

114In argument, Mitchell and Vanessa raised s. 5 and 6 of the Libel and Slander Act, R.S.O. 1990, c. L.12, which has a six-week notice requirement and a three-month limitation period for a libel which appears in a broadcast or newspaper. Their statement of defence does not make reference to the Libel and Slander Act. This is required if they wish to rely on the notice and limitations provisions in s. 5 and 6 of the Act.

115In their factum and in argument, Mitchell and Vanessa rely on John v. Ballingall,⁴⁴ for the proposition that the failure to deliver the notice required by s. 5(1) is fatal to Joanne’s defamation claim. They also rely on s. 6 of the Libel and Slander Act and argue that the action was not commenced within three months after the alleged libel came to the attention of Joanne as required.

116Brown on Defamation⁴⁵ contains a detailed exploration of whether the notice requirement in s. 5(1) applies for non-media defendants such as Mitchell and Vanessa when their allegedly defamatory words appear in a newspaper or broadcast.⁴⁶ The bottom line is that the notice requirement and limitation date do benefit not only the newspaper publisher or the broadcaster, but also non-media defendants. Mitchell and Vanessa can take advantage of the s. 5(1) and s. 6. However, these requirements apply “only to the publications appearing in the newspaper or broadcast” and “all other publications of the same matter by the defendant may be pursued by the plaintiff without giving the statutory notice.”⁴⁷ In addition, “notice must be given only where the plaintiff is seeking damages against the defendant for the publication appearing in the newspaper or broadcast and not for other non-media publications.”⁴⁸ It may be that Joanne can advance a claim for defamation for the words spoken to the Toronto Star reporter, but not for the words that were published in the newspaper.

117I will not say more about this issue but will again recommend that Prof. Brown’s text be reviewed on this issue before Joanne seeks to amend her pleading to again plead defamation, should she wish to pursue it.

Disposition

118The motion is granted in part.

119The plaintiff’s claims against the defendants Tanya Road and Mitchell Worsoff are dismissed.

120The plaintiff’s claims based on the tort of abuse of process, the tort of conspiracy, and the tort of intentional interference with economic relations are dismissed.

121To the extent that the plaintiff’s claim for intentional infliction of mental suffering is based on the way the divorce proceedings were litigated, it is dismissed.

122Paragraphs 110, 111, 115, 116, 117, 122, and the phrase “intentional infliction of mental suffering” in paragraph 125 shall be struck from the ASOC, with leave to amend to plead a tenable claim for intentional infliction of emotional distress, if so advised. In this regard, the pleading shall not raise any matter that would require relitigation of any of the issues determined in the divorce proceedings.

123Paragraphs 110 and 120 of the ASOC, and the word “defamation” in paragraph 125 of the ASOC, are struck, with leave to amend to address the issues raised in these reasons, if so advised.

124If the parties cannot resolve the issue of costs, I will receive written submissions. Moving defendants by July 28, 2022. Plaintiff by August 12, 2022. Submissions are limited to three double spaced pages plus, optionally, copies of offers to settle, bills of costs, costs outlines, and dockets.

125If any issues regarding amendments to the ASOC arising from these reasons cannot be resolved, counsel may arrange a further hearing with me. This should be done through the trial coordinator in Owen Sound, who will coordinate with the Brampton trial coordinators as needed.

Chown J.

Released: July 11, 2022

Appendix A

Cases in which claims against adverse lawyers were dismissed at the pleadings stage:

Brignolio v. Desmarais, Keenan, [1995] O.J. No. 3499 (Gen. Div.), motion to set aside administrative order dismissing appeal dismissed, [1996] O.J. No. 4812 (C.A.), leave ref’d [1996] S.C.C.A. No. 326 (husband sued lawyer who acted for his wife in divorce proceedings).

Royal Bank of Canada v. Tehrani, [2009] O.J. No. 3153 (S.C.J.) (defendants advanced counterclaim against plaintiff’s lawyers).

Heydary Hamilton Professional Co. v. Baweja, 2010 ONCA 881, leave to appeal refused [2011] S.C.C.A. No. 100 (plaintiff law firm retained on contingency fee basis sues successor law firm alleging conspiracy, inducing breach of contract and unlawful interference with economic interests, and unjust enrichment).

Heydary Hamilton Professional Co. v. Muhammad, 2013 ONSC 4938 (when its former client challenged the plaintiff law firm’s accounts, the plaintiff law firm sued its former client and its former client’s new lawyer).

Edgeworth v. Shapira, 2019 ONSC 5792 (adverse lawyer alleged to have withheld key expert report).

9383859 Canada Ltd. v. Saeed, 2020 ONSC 4883 (lawyers for adverse parties in real estate transaction).

Wakeling v. Desjardins General Insurance Group Inc., 2020 ONSC 6809 (adverse lawyer alleged to have misused information obtained in prior proceeding).

Cases in which claims against adverse lawyers were dismissed in a summary judgment motion:

Baypark Investments Inc. v. Royal Bank of Canada (2002), 2002 CanLII 49402 (ON SC), 57 O.R. (3d) 528 (S.C.J.) (plaintiff sued the lawyers who acted for the plaintiff’s bank for allegedly preparing and improperly registering PPSA notice).

Scott v. Valentine, 2012 ONSC 6349 (plaintiff sues the lawyers of a party relating to a fraudulent investment – the fraudulent party had run the plaintiff’s funds through the lawyers’ trust account).

Chand Morningside Plaza Inc v Badhawar, [2015] OJ No 192, 2015 ONSC 293 (plaintiff sued lawyer who did not act for the plaintiff but rather for another party in a real estate transaction).

Ostrowski v. Weinstein, 2021 MBQB 269 (plaintiff was a wrongful conviction victim and sued the lawyer for a witness whose untruthful testimony helped convict the plaintiff).

Footnotes

1. 1She also sues Tom Doyle who was not involved in this motion.
2. 2Mitchinson v. Baker, 2015 ONCA 623, at para. 14.
3. 3The contest on this issue is complicated because there is no single test for legal capacity. A person may have legal capacity to conduct some transactions but not others.
4. 4It is, of course, perfectly acceptable for a party to advance alternative theories and allegations (see rule 25.06(4)).
5. 5Chuvalo v. Chuvalo, 2018 ONSC 311, at para. 70.
6. 6Baradaran v. Alexanian, 2016 ONCA 533, at para. 15.
7. 7Ibid., at para. 16.
8. 8Brignolio v. Desmarais, Keenan, [1995] O.J. No. 3499 (Gen. Div.), at para. 16 to 18, motion to set aside administrative order dismissing appeal dismissed, [1996] O.J. No. 4812 (C.A.), leave ref’d [1996] S.C.C.A. No. 326 (husband sued lawyer who acted for his wife in divorce proceedings).
9. 9Perell and Morden, The Law of Civil Procedure in Ontario, 4th ed. (Toronto: Lexis-Nexis Canada Inc., 2020), at para. 2.21.
10. 10Although usually without reference to the full phrase, “abuse of process by relitigation.”
11. 112003 SCC 63, at para. 34.
12. 12D.J. Lange, The Doctrine of Res Judicata in Canada, 5th ed. (Markham: LexisNexis Canada Inc., 2021), at c. 4, s. 1.
13. 13Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.), at para. 55 to 56, per Goudge J.A., who was dissenting, but whose reasons were approved at 2002 SCC 63; Behn v. Moulton Contracting Ltd., 2013 SCC 26, at para. 40.
14. 14Lange, 5th ed, at c. 4, s. 2; Ontario v. O.P.S.E.U., 2003 SCC 64, at para. 12.
15. 15I do not suggest that it has been agreed or judicially determined that the defendants consistently acted in George’s best interest. Similarly, I do not want to suggest that they did not. What has been put to rest is that the settlement was in George’s best interest. This means that the PGT, at least, acted in George’s best interest in settling the divorce proceedings on the agreed upon terms.
16. 16George’s other legal capacities and his capacities at other times were not adjudicated or determined. Kiteley J. specifically did not decide whether George separated from Joanne within the meaning of the Divorce Act or whether he had an intention to live separate and apart from her: Chuvalo v. Chuvalo, 2018 ONSC 311, at para. 64.
17. 172020 ONCA 257.
18. 18Urban Mechanical Contracting Ltd. v. Broccolini Construction (Toronto) Inc., 2021 ONSC 1807, at para. 10; Aba-Alkhail v. University of Ottawa, 2013 ONCA 633, at para. 12.
19. 19Fontaine v. Canada (Attorney General), 2019 BCCA 178, at para. 86, leave ref’d, [2019] S.C.C.A. No. 339. The B.C.C.A. was citing from D. Lange, The Doctrine of Res Judicata in Canada, 3rd ed (Toronto: LexisNexis, 2010) at 188.
20. 20Harris v. Glaxosmithkline Inc., 2010 ONCA 872, at para. 27 to 28.
21. 21See paragraphs 51 and 52 of Joanne’s factum.
22. 22See paragraph 51 of Joanne’s factum, which references paragraphs 33, 39, 61 and 62 of the ASOC.
23. 23Oei v. Hui, 2020 BCCA 214, at para. 36 to 37.
24. 24For instance, the first case to have recognized the tort of abuse of process, Grainger v. Hill (1838), 132 E.R. 769, was successful because the defendant had without proper justification obtained a writ that resulted in the plaintiff being jailed, and this was done “to extort property from the Plaintiff” (per Tindall C.J.) and “to obtain property by duress to which the Defendants had no right” (per Bosanquet J.).
25. 25“Commencing and pursuing litigation is not an actionable wrong. Commencing and pursuing losing litigation is not an actionable wrong. Commencing and pursuing vexatious and frivolous litigation or litigation that is an abuse of process is not an actionable wrong”: McArthur v. McArthur and Harman, 2019 ONSC 7232, at para. 15.
26. 26Teledata Communications Inc. v. Westburne Industrial Enterprises Ltd. (1990), 1990 CanLII 6887 (ON SC), 71 O.R. (2d) 466 (Ont. H.C.), at para. 9.
27. 27See paragraphs 62, 64, 69, 80, 91, 98, 100 and 110.
28. 28Chuvalo v. Chuvalo, 2018 ONSC 311, at para. 70.
29. 29During argument, counsel spent considerable time addressing the test to be applied when measuring the sufficiency of the pleadings in a conspiracy claim. Out of respect to the time devoted to this issue, I should refer to it briefly. Mr. Graham argued that the formulation in Normart Management Ltd. v. West Hill Redevelopment Co. (1998), 1998 CanLII 2447 (ON CA), 37 O.R. (3d) 97 (C.A.), at p. 104, citing H.A. Imports of Canada Ltd. v. General Mills Inc. (1983), 1983 CanLII 1722 (ON SC), 42 O.R. (2d) 645, 150 D.L.R. (3d) 574 (H.C.J.), which in turn quoted from Bullen, Leake and Jacob's Precedents of Pleadings, 12th ed. (London: Sweet & Maxwell, 1975), at pp. 646-47 and Robinson v. Medtronic Inc., 2009 CanLII 56746 (ON SC), at para. 106 should be preferred over the formulation in 900351 Ontario Inc. v. Martian Properties Inc., 2022 ONSC 37, at para. 11. In my view, the difference is slight. In any event, I am not dismissing the conspiracy claim over the insufficiency of the pleading. I am dismissing it because to allow it would run afoul of the doctrine of abuse of process by relitigation. I therefore do not need to resolve this issue.
30. 30Given that I have dismissed the claims against Ms. Road and Mr. Worsoff, the conspiracy claim loses much of its force. However, there are three remaining defendants (Mitchell, Vanessa and Mr. Doyle) so I have considered whether it is a viable claim. The conspiracy claim may also lose much of its relevance due to merger. Under the doctrine of merger, when a tort has been committed by two or more persons, a conspiracy to commit the tort merges in the nominate tort: Ward v. Lewis, [1955] 1 All E.R. 55 at p. 56; see Wilson J in Hunt v. Carey Canada, 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959. However, the doctrine of merger should not be applied at the pleadings stage of an action: Jevco Insurance Company v. Pacific Assessment Centre Inc., 2015 ONSC 7751.
31. 31See paragraph 45 of Joanne’s factum.
32. 322015 ONCA 151, at para. 25.
33. 332014 SCC 12, at para. 2 and 5.
34. 34G.H.L. Fridman, The Law of Torts in Canada, 3rd ed. (Toronto: Thomson Reuters, 2010) at chapter 33; Klar, Remedies in Tort (Toronto: Thomson Reuters, 2021), at § 27:23 to § 27:27.
35. 35Ibid., at p. 771.
36. 36(1998), 1998 CanLII 14850 (ON SC), 40 O.R. (3d) 229 var’d (2000), 2000 CanLII 5624 (ON CA), 46 O.R. (3d) 760 (C.A.), aff’d 2001 SCC 59.
37. 372008 ONCA 506, at para. 98.
38. 382014 SCC 12, at para. 5.
39. 39Fridman, at pp. 69 to 73.
40. 40Linden, Feldthusen, Hall, Knutsen, Young, Canadian Tort Law, 12th ed. (Toronto: LexisNexis Canada, 2021) at §3.02.
41. 41For example, through a practical joke, such as in Wilkinson v. Downton, [1897] 2 QB 57 – the case from which this tort has developed.
42. 42High Parklane Consulting Inc. v. Royal Group Technologies Ltd., [2007] O.J. No. 107 (Sup. Ct.).
43. 43R.E. Brown, Brown on Defamation, 2nd ed. (Toronto: Thomson Reuters, Release No. 2022-2, June 2022).
44. 442017 ONCA 579.
45. 45At § 17:56.
46. 46Several Court of Appeal decisions consider the issue, with varying degrees of depth, including Janssen-Ortho Inc. v. Amgen Canada Inc. (2005), 2005 CanLII 19660 (ON CA), 256 D.L.R. (4th) 407 (Ont. C.A.); Watson v. Southam Inc. (2000), 2000 CanLII 5758 (ON CA), 189 D.L.R. (4th) 695 (Ont. C.A.); DeHeus v. Niagara Regional Police Services Board, [2001] O.J. No. 4201 (Ont. C.A.); Weiss v. Sawyer (2002), 2002 CanLII 45064 (ON CA), 61 O.R. (3d) 526 (Ont. C.A.); TPG Technology Consulting Ltd. v. Canada (Minister of Industry), 2012 ONCA 87, at para. 32.
47. 47Brown on Defamation, at § 17:56.
48. 48Ibid., at footnote 72. See also Simpson v. Ontario, 2010 ONSC 2119.