Court File and Parties

Court File No.: CV-22-90395 Date: 2023/03/06 Superior Court of Justice - Ontario

Re: André Bluteau, Plaintiff And: Joseph Griffiths, Matthew Glass, Alana Gray, John Earl Rouatt, Brandon Reinhart, Allison Lendor, Emily Lawrence, Crystal Gillis, Denise Allen-Macartney, Benjamin Ebokem, Jacob Ekwa, Edwin Nkengla, Evelyn Musonge, Defendants

Before: Justice Marc R. Labrosse

Counsel: Michael R. Kestenberg and Beverly C. Jusko, Lawyers for the Defendants, Joseph Griffiths, Matthew Glass, John Earl Rouatt, Brandon Reinhart, Allison Lendor, Emily Lawrence, and Crystal Gillis Mr. Delgado for Alana Gray No one appearing for André Bluteau nor the other parties

Heard: January 24, 2022

Endorsement

Overview

[1] The Defendants, Joseph Griffiths, Matthew Glass, John Earl Rouatt, Brandon Reinhart, Allison Lendor, Emily Lawrence, and Crystal Gillis (collectively the “Legal Defendants”) bring this motion to strike out the Statement of Claim issued by the Plaintiff, André Bluteau, pursuant to rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“the Rules”) on the basis that the Statement of Claim discloses no reasonable cause of action against them.

[2] The Plaintiff did not attend the motion and did not file any documents in response although properly served by email to the same email address that he listed on the Statement of Claim.

[3] Consequently, this motion proceeded in the absence of the Plaintiff and was not opposed.

Factual Background

[4] The Plaintiff is a lawyer who is seeking a declaration that all decisions in court file no. CV-19-81121 (the “2019 Action”) and court file no. FC-20-309 (the “2020 Application”) in the Ontario Superior Court of Justice are null and void because they were obtained by fraud by some of the Legal Defendants.

[5] The Plaintiff alleges that the Legal Defendants knew that the decisions obtained in the 2019 Action and the 2020 Application were based on fraudulent affidavits. The Plaintiff is also seeking declarations that some of the Legal Defendants are in contempt of court and damages in the sum of $500,000 plus costs.

[6] In order to understand the background and how this matter comes to court it must firstly be understood that the Plaintiff initially represented his wife Joan Chartrand, who was the Plaintiff in the 2019 Action and the Applicant in the 2020 Application. All proceedings involved Joan Chartrand’s previous spouse/partner Ben Ebokem with whom she has three children. Joseph Griffiths and Matthew Glass represented Mr. Ebokem in the 2019 Action and Emily Lawrence represented another defendant in that action.

[7] The 2019 Action was dismissed pursuant to rule 2.1.01 of the Rules on April 24, 2020 by Justice Gomery. In that proceeding, Justice Hackland also made a ruling on October 31, 2019 ordering that Mr. Bluteau be removed as counsel of record for his wife as a result of a conflict of interest.

[8] The Plaintiff also represented Joan Chartrand as Applicant in the 2020 Application until he was removed as the lawyer of record because of a conflict of interest on July 25, 2022 by Justice Audet. The Respondent in that application was also Ben Ebokem, and he was represented by Allison Lendor.

[9] The Statement of Claim makes reference to an estate matter whereby John Earl Rouatt represented Ben Ebokem in obtaining a certificate of appointment of estate trustee without a will for the estate of Miranda Tabi. Brandon Reinhart is a Notary Public alleged to have committed perjury in two affidavits and to have participated in mortgage fraud.

[10] Finally, the Plaintiff also instituted proceedings against Joseph Griffiths, Matthew Glass and Rev. Denise Allen-Macartney (CV-20-82790). Crystal Gillis represented Rev. Allen-Macartney. The action was dismissed pursuant to Rule 2.1 by the order of Justice Gomery dated April 24, 2020 (the “2020 Action”).

[11] The main allegations in the Statement of Claim are that the Legal Defendants have at various times assisted Ben Ebokem in filing false affidavits, that they knew or ought to have know that the affidavits were false and that in doing so, they committed an intentional tort for which solicitor immunity cannot protect them. There is little merit in reviewing the Statement of Claim in great detail because there is very little substance to it. Few material facts are pleaded to sustain the allegations that the various affidavits were false and that the orders were obtained by fraud. The paragraphs are repetitive, and similar allegations are made in respect to each of the Legal Defendants.

[12] The Statement of Claim is drafted in French and, as a result, this decision will be provided in both official languages. Normally, both the English and French version would be released at the same time. However, Mr. Bluteau did not participate in this motion and did not attend. It would be unfair to the moving parties to require that they wait for the translation of the decision when Mr. Bluteau did not see fit to participate. Furthermore, Mr. Bluteau was counsel in the 2019 Action and that pleading was drafted in English. Thus, Mr. Bluteau is assumed to be bilingual and will still be able to understand the English version of this decision. The Court requests that the decision be translated to French and that a translation be sent to Mr. Bluteau.

Position of the Moving Parties

[13] The Legal Defendants are seeking an Order striking out the Statement of Claim on the basis that it discloses no reasonable cause of action because:

(i) the action is a collateral attack on the Orders obtained in the 2019 Action and the 2020 Application; (ii) the Legal Defendants are immune from action pursuant to the doctrine of absolute privilege; (iii) the Legal Defendants owe no duty to the party on the other side of the litigation; (iv) the action is an abuse of process; (v) an Order for contempt must be obtained by a motion in an existing action not as a declaration in a new proceeding; (vi) it is plain and obvious that this action discloses no reasonable cause of action against the Legal Defendants.

Analysis

[14] I will consider the issues raised by the legal defendants.

Motion to Strike

[15] Rule 21 reads as follows:

RULE 21 DETERMINATION OF AN ISSUE BEFORE TRIAL

Where Available

To Any Party on a Question of Law

21.01 (1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly. R.R.O. 1990, Reg. 194, r. 21.01 (1) .

(2) No evidence is admissible on a motion,

(a) under clause (1) (a), except with leave of a judge or on consent of the parties;

(b) under clause (1) (b). R.R.O. 1990, Reg. 194, r. 21.01 (2) .

[16] A claim will be struck if it is plain and obvious that the pleading discloses no reasonable cause of action. [1]

[17] It is well known that on a motion to strike a pleading, the court must assume the facts as pleaded to be true unless they are patently ridiculous or incapable of proof. However, it is not fundamentally wrong to look behind the allegations and subject them to analysis. [2]

[18] Although a Rule 21 motion is generally expected to proceed without evidence, the Court may look at its own records and proceedings, and to take notice of their contents, although they may not be formally before the Court by affidavit. [3]

[19] The test for striking a pleading is high and a difficult burden for a 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. Only if the action is certain to fail should it be struck. [4]

[20] In its Factum, the moving party has briefly addressed the five issues it raises that justify that the Plaintiff’s claim be struck. Those issues are: collateral attack, absolute privilege, lawyer’s duty to the opposing party, abuse of process and contempt of court.

Collateral Attack

[21] The notion of collateral attack applies here given that the Plaintiff seeks to overturn findings made in the 2019 Action and the 2020 Application. He also challenges the outcome in the 2020 Action by alleging that the result was obtained by fraud. These claims were conclusively dealt with in respect of Mr. Bluteau’s participation.

[22] When considering the 2019 Action, Justice Gomery dismissed that action pursuant to Rule 2.1 and the court has not been advised of any appeal to that decision. There has also been no appeal of Justice Hackland’s decision to remove Mr. Bluteau as counsel of record.

[23] In the 2020 Application, a Family Law Act proceeding, Mr. Bluteau’s participation in that action was terminated by Justice Audet’s decision to remove him as counsel of record.

[24] While his claims are different for the 2020 Action and he does not seek to set aside those decisions, he still challenges that the result was obtained by fraud.

[25] Mr. Bluteau was not a party to either the 2019 Action or the 2020 Application. He did not have standing in those proceedings and could not appeal as counsel for Ms. Chartrand. In the 2020 Action, he could have appealed the dismissal as he was the Plaintiff in that action. He now seeks to revisit the result of those actions as they relate to him by way of this new Statement of Claim. This is a classic collateral attack on the results of those proceedings. It is improper to attack those final decisions as they affect him by issuing a new statement of claim dealing with matters in those proceedings.

[26] The decisions of Justice Gomery in the 2019 Action and the 2020 Action along with the decision of Justice Audet in the 2020 Application stand on their own and cannot indirectly be set aside or challenged by trying to attack documents filed in those proceedings. If there was a claim to be made in respect of the 2019 Action or the 2020 Application, it had to be made by Ms. Chartrand as the party. They should have been challenged by way of an appeal with a motion to file fresh evidence of the alleged fraud.

[27] The same applies to the 2020 Action, whereby Mr. Bluteau had the opportunity to appeal and file fresh evidence as Plaintiff.

[28] I am not aware that any appeal was attempted nor that any request to file fresh evidence was made. As such it is improper to try to challenge those final results by issuing a new statement of claim.

Absolute Privilege

[29] It is well established that the doctrine of absolute privilege prevents claims based on communications that take place during, incidental to, and in furtherance of a court proceeding. It makes no difference if the words used are knowingly false and spoken with malice: they are subject to immunity from suit. [5]

[30] In the present claim, the Plaintiff’s allegations against the Legal Defendants relate in large part to the Legal Defendants’ alleged knowledge that statements made in certain affidavits filed with the Court contained false allegations. I question if these statements are properly attributable to the Legal Defendants if they are found in affidavits signed by their respective clients.

[31] However, paragraph 50 of the Statement of Claim alleges that the Legal Defendants lied to support Mr. Ebokem and to the extent that those were words spoken by the Legal Defendants or put in writing, they are protected by absolute privilege.

[32] Once again the proper remedy, when taking the Plaintiff’s allegations at their highest, would have been to appeal the orders in question and seek to file fresh evidence on the false affidavits. In the case of the 2019 Action and the 2020 Application, the remedy is certainly not for a person who is not a party to the litigation to commence an unrelated action seeking to set aside those decisions when the party herself, Joan Chartrand, is not involved in the new litigation.

[33] Furthermore, in the case of the 2020 Action, the proper course of action was to appeal Justice Gomery’s decision to dismiss the claim.

Lawyer’s Duty of Care

[34] The Statement of Claim is difficult to read at best. It claims that each of the Legal Defendants committed an intentional tort for which damages are payable but does not specify the nature of the tort committed. Further, an essential element of a tort is a duty of care. There is no specific pleading that the Legal Defendants owed a duty of care to the Plaintiff.

[35] However, the Statement of Claim does claim that the Legal Defendants are responsible for the damages caused to the Plaintiff by their intentional torts. The only damage alleged which involves the Plaintiff is that he was required to be removed from the record as counsel for Joan Chartrand.

[36] The Plaintiff has not pleaded the elements of the tort claim but only states that it was an “intentional tort” and seeks damages of $500,000. The nature of the intentional tort claim is not particularized but one would assume that it necessarily involves a duty of care as one of the elements to prove such a claim. It is well-established that opposing counsel, here the Legal Defendants, do not owe a duty of care to an opposing party and even less to the opposing party’s counsel.

[37] The moving parties have properly identified that there are certain limited circumstances where a lawyer may owe a duty of care to an opposing party and also to a non-client third party. There is nothing in the Statement of Claim that would suggest that any such circumstances existed. Examples would be where a lawyer gives advice to an opposing party or to a non-party in circumstances where the lawyer knows that the opposing party is relying on them. Nothing of that nature has been pleaded by the Plaintiff.

[38] In this case, the Statement of Claim does not allege any circumstance which would create a relationship of proximity between the Plaintiff and the Legal Defendants. Nothing has been pleaded to that effect in the Statement of Claim and there is no claim which would warrant that the Legal Defendants owed a duty of care to Joan Chartrand or her lawyer in the 2019 Action and the 2020 Application. The same applies in respect of Mr. Bluteau as Plaintiff in the 2020 Action.

Abuse of Process

[39] The moving parties rely on the doctrine of abuse of process that a claim against lawyers brought by the opposing party is an abuse of process. The concept does not apply directly in this case given that the Plaintiff was never a party in the 2019 Action nor the 2020 Application. However, the Plaintiff was a party to the 2020 Action.

[40] If it is an abuse of process for a claim to be brought by the opposing party, it is surely also an abuse of process for the claim to be brought by the lawyer of the opposing party. As such, if the doctrine of abuse of process applies to Joan Chartrand, it would apply to Mr. Bluteau’s claim, both as a former party and as a former solicitor. For reasons of public policy inherent in the nature of the adversary process, an action in tort against the solicitor of the opposing party is not tenable in law. Clearly, this applies to Joan Chartrand and her solicitor in the 2019 Action and the 2020 Application and to André Bluteau as a party in the 2020 Action.

[41] The Plaintiff is clearly attempting to relitigate matters on behalf of his wife or himself that were finally disposed of, and this is an abuse of process.

Contempt

[42] The Plaintiffs attempt to relate the alleged fraudulent behavior of the Legal Defendants to an issue of contempt misconstrues the nature of that relief. It is clear from reading Rule 60.11 of the Rules, that a claim for contempt may only arise where a party seeks to enforce an order requiring a person to do an act or to abstain from doing an act and may only be obtained on a motion to a judge in the proceeding in which the order to be enforced was made.

[43] No authority has been presented to this Court to suggest that a finding of contempt can be made in one proceeding when relying upon an order made in another proceeding where the alleged contempt is not subject to any order. Simply put, none of the Legal Defendants were named in an order in which they could have been found in contempt. The Plaintiff’s claims in relation to contempt of court clearly fails and are to be struck.

Right to amend

[44] The Court of Appeal for Ontario has stated that leave to amend should be denied only in the clearest of cases, especially where the deficiencies in the pleading can be cured by an appropriate amendment and the other party would not suffer any prejudice if leave to amend was granted. [6]

[45] In the present case I have considered if the Plaintiff should be afforded the right to amend. The factual circumstances that form the basis of the claims made by the Plaintiff are not tenable in law. Reading the Statement of Claim at its highest, this court cannot imagine a circumstance whereby the former solicitor of a party would have a right of action against the Legal Defendants. The same applies to the Plaintiff following the dismissal of the 2020 Action. Other than having been removed from the record, the Plaintiff has not alleged any damage suffered as a result of the alleged claims against the Legal Defendants. There is no amendment that can cure this.

[46] This is one of those clear cases where the deficiencies in the Statement of Claim cannot be cured by an amendment as none of the claims could give rise to a finding of liability against the Legal Defendants. Furthermore, the Plaintiff’s attempt to set aside previous orders in the 2019 Action and 2020 Application are not sustainable in law as a result of the doctrine preventing collateral attacks. No amendment can remedy this deficiency.

Disposition

[47] For the reasons stated above, the Legal Defendants have demonstrated that this is one of those cases where they have clearly demonstrated that the Statement of Claim discloses no reasonable cause of action. The Statement of Claim fails to plead the minimum level of material facts and it attempts to establish liability for non-actionable conduct. Consequently, the Statement of Claim is struck with no right to amend.

Costs

[48] The Legal Defendants have included their Bill of Costs. They were asked by the court to provide their docketed time, but the document produced is a Client Ledger and is difficult to decipher. The full indemnity costs claimed by the moving parties are in the amount of $23,677.78.

[49] I have considered the Bill of Costs and Client Ledger to the extent that I am able to. All the work for this motion, which is procedural in nature, was completed by lawyers with more than 30 years experience at the bar. While the actual rates charged to Law Pro are certainly reasonable for lawyers of such experience, most of the work should have been done by a law clerk, legal assistant or junior counsel.

[50] Furthermore, the Client Ledger is not of assistance for assessing who did what on the file. A proper pre-billing report and a Cost Outline should have been provided.

[51] Regardless, while I accept that the time spent on this motion should never have been incurred, the amount of costs claimed is excessive and the hours spent by senior counsel are excessive, even when considering that one motion was brought for seven Defendants.

[52] When considering the other criteria under Rule 57, I acknowledge that the Legal Defendants were entirely successful, that the manner in which the Statement of Claim was drafted made things more complicated to understand and that the entirety of the claim was improper. Full indemnity costs are warranted but the total amount must be reduced.

[53] Proportionality is an important factor in this case and the court must determine an amount of costs that is fair and reasonable in all the circumstances: see Boucher v. Public Accountants Council for the Province of Ontario, 71 O.R. (3d) 291 (C.A.) at para 26.

[54] I conclude that a fair amount of costs for a motion of this nature, in all the circumstances is $12,000.00 inclusive of taxes and disbursements.

Released: March 6, 2023 Justice Marc R. Labrosse