Court File and Parties
COURT FILE NO.: CV-00001074
DATE: 18012022
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Guarav Tewari, Plaintiff
AND:
Gagan Sekhorn and Sekhorn Law Office, Defendants
BEFORE: Regional Senior Justice M.L. Edwards
COUNSEL: Guarav Tewari, Self-Represented Plaintiff
Peter A. Downard and Rachel Laurion, Counsel for the Defendants
HEARD: January 7, 2022
ENDORSEMENT
Overview
[1] The Defendants in this motion seek an order pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure (“the Rules”) striking out the statement of claim as disclosing no reasonable cause of action without leave to amend, or in the alternative for an order dismissing the action as frivolous and vexatious or an abuse of process pursuant to Rule 21.01(3)(d) and/or Rule 25.11.
The Facts
[2] The facts as alleged come from the statement of claim in this matter. For the purposes of this motion, only the allegations set forth in the statement of claim are accepted as being true.
[3] The Plaintiff pleads in his statement of claim that he is a highly educated and experienced “food process and chemical engineer” and he has achieved significant accomplishments in his field but was dismissed from a position of employment without cause in February 2009.
[4] It is in connection with his dismissal from his employment that the Plaintiff makes various allegations against the Defendants.
[5] Specifically, as it relates to his employment, the Plaintiff was hired by a company named Marcatus QED (“Marcatus”) as the Director of Plant Operations in August of 2018. He was terminated from his position without cause on February 1, 2019.
[6] The Plaintiff commenced a claim against Marcatus as well as against three individuals, Aditya Vikram Singh, Roshni Singh and Lal Bahadur Singh, all of whom would appear to have been employees or directors of Marcatus.
[7] The Defendants in the action before this court were the solicitors acting on behalf of the Defendants Singh and Marcatus in the wrongful dismissal litigation. The Defendants at no time had any solicitor client relationship whatsoever with the Plaintiff.
[8] The essence of the claim against the Defendants is that they conspired with their clients to illegally manipulate facts against the Plaintiff. In that regard, it is worth repeating what the Plaintiff alleges from his statement of claim, including the following paragraphs:
The Defendants, understood that the statement of facts in a sworn in affidavit, which was sworn and done by the Defendants’ client (Aditya Vikram Singh) in February, 2019 was drastically changed and a new fabricated sworn in affidavit was done by Defendants’ client in November 2019, ten months after the first sworn in affidavit, the Defendants, although understanding that the change in sworn in affidavit statements is criminally prosecutable, did not use their legal knowledge to guide its client, rather used that to provide “illegal” defence to the lawsuit represented by the Defendant. This is another example where the Defendants used their “legal professional” to illegally manipulate facts against the Plaintiff.
The Defendants used their legal profession and legal knowledge to illegally manipulate the legal system, and to illegally train their client to give falsified information to defame the Plaintiff and to damage the credibility of the Plaintiff.
Position of the Moving Party Defendants
[9] The position asserted by the Defendants is a relatively simple one. In essence, the Defendants argue that their conduct in representing the Defendants in the wrongful dismissal action brought by the Plaintiff can attract no liability whatsoever to the Plaintiff as their actions are covered by absolute privilege. It is, therefore, plain and obvious that the Plaintiff’s claim cannot succeed against the Defendants where their only duty was to their client and to the court.
Position of the Plaintiff
[10] The Plaintiff is self-represented. He argues that the Defendants criminally abused the judicial system, and that his case is a novel case which this court should not strike out at the pleading stage. He argues that the Defendants had a fiduciary duty to him as a self-represented individual, which it is argued distinguishes this case from any other cases where the issue of absolute privilege resulted in an order striking out a claim.
[11] The Plaintiff argues that if he was given the opportunity to file additional evidence, it would become clear how novel his case was, and that this court should not exercise the discretion provided by Rule 21 to strike out the claim until such evidence is heard by the court.
Analysis
[12] There is no issue on a motion to strike a statement of claim under Rule 21.01 that the court must assess whether it is plain and obvious whether the statement of claim discloses no reasonable cause of action in law: see Tran v. University of Western Ontario, 2015 ONCA 295, at para. 16.
[13] It is further beyond doubt that the court must accept the allegations in the statement of claim as being true unless they are patently ridiculous or incapable of proof: see Paton Estate v. Ontario Lottery and Gaming Corporation, 2016 ONCA 458, at para. 12.
[14] It is also important to emphasize that the statement of claim must be read generously, allowing for inadequacies due to drafting deficiencies. This is particularly so in a situation where the statement of claim is drafted by a self-represented individual: see Tran, at para. 16.
[15] It is important to emphasize that the Plaintiff’s claim is not brought against counsel with whom he had a solicitor client relationship. The Defendants at no time represented the Plaintiff. To the contrary, the Defendants’ only professional relationship was with the Plaintiff’s former employer and former employees of that employer. In that regard, therefore, the conduct of the Defendants during the course of the litigation and any steps that were preparatory, preliminary, intimately connected necessary or incidental to the institution of that legal proceeding is absolutely privileged in law: see Salasel v. Cuthbertson, 2015 ONCA 115, at para. 35.
[16] Absolute privilege even applies to false or malicious statements made in pleadings and factums. Absolute privilege equally applies even if counsel in his or her words has been guilty of malice or misconduct or had an indirect motive: see 1522491 Ontario Inc. v. Stewart, Esten Professional Corporation, 2010 ONSC 727, at paras. 33 and 34.
[17] The immunity provided to counsel pursuant to the doctrine of absolute privilege is not only against actions for liable or slander but applies to any form of civil action. As such, the Plaintiff’s claims against the Defendants for conspiracy, infliction of mental distress, breach of fiduciary obligations and defamation are barred by the doctrine of absolute privilege: see Salasel, supra, at para. 38.
[18] As part of the Plaintiff’s pleading, he asks in his prayer for relief:
Suspend the legal licence of the Defendants to practice law in Ontario, Canada.
[19] As it relates to the Plaintiff’s claim, and specifically his request in his statement of claim to suspend the Defendants’ licence to practice law, it is beyond dispute that the sole jurisdiction to discipline and/or suspend a lawyer’s licence to practice lies with the Law Society of Ontario. As I pointed out to the Plaintiff during the course of argument, this court does have the jurisdiction to control its own process where appropriate, utilizing the contempt of court powers that this court has as well as the powers under Rule 57.07 to award costs against a lawyer. In both situations, where the court might exercise that jurisdiction, it would be on notice to the lawyer who would have the right to separate legal representation. In the context of the wrongful dismissal litigation there is no suggestion that the court was called upon to exercise either its contempt jurisdiction or its jurisdiction under Rule 57.07. In my view, if the Defendants had been guilty of any form of misconduct as alleged by the Plaintiff the appropriate venue for the sanctioning of that conduct should have been before the court having jurisdiction dealing with the wrongful dismissal action.
[20] I entirely disagree with the Plaintiff that this is a novel action. The doctrine of absolute privilege is one that has been around for a long time and endorsed by various appellate courts. If the Plaintiff is correct that the Defendants owed him a fiduciary duty, it will be up to an appellate court to determine the appropriateness of that remedy. This court is bound by earlier jurisprudence as it relates to the doctrine of abuse of process.
[21] If the Plaintiff was correct that the Defendants owed the Plaintiff a fiduciary duty, it would make it impossible for a lawyer to fulfil his responsibility to his or her client. It is beyond dispute, in my view, that a lawyer’s first responsibility is to his or her client to whom he or she owes an absolute duty subject to his /her duty to the court as an officer of the court.
[22] The Defendants’ motion to dismiss the Plaintiff’s claim is allowed. The statement of claim is struck out without leave to amend, because in my view there is no basis in law for any action against the Defendants.
[23] The parties may make brief written submissions to the court as it relates to the issue of costs. Written submissions shall be limited to two pages and are to be received by the court no later than January 30, 2022. If submissions are not received by January 30, 2022, the court will assume that either the issues of costs has been resolved or the party failing to meet such deadline simply does not intend to file submissions with respect to costs.
Regional Senior Justice M.L. Edwards
Date: January 18, 2022