Court File and Parties

COURT FILE NO.: CV-19-00630696 DATE: 20230613

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jean-Alexandre De Bousquet and De Bousquet Professional Corporation, Plaintiff

AND:

Nigel Jarrett, Defendants

BEFORE: Justice Papageorgiou

COUNSEL: Andrew Ostrom for the Plaintiff

READ: June 8, 2023

Endorsement

[1] The Plaintiffs bring a motion to strike the Defendant’s Amended Counterclaim as an abuse of process and/or because it is plain and obvious that it discloses no recognized cause of action pursuant to rr. 21 and 25 of the Rules of Civil Procedure.

[2] For the reasons that follow, the motion is granted and the Defendant’s Counterclaim is struck.

Background

[3] The Defendant is a former client of the Plaintiffs.

[4] On March 27, 2019, the Plaintiffs obtained a Report and Certificate of Assessment ordering the Defendant to pay fees, costs and disbursements in the amount of $7,379.93. The Defendant failed to attend the Assessment hearing and the Assessment Officer indicates in his reasons that he was satisfied that the Defendant was aware of the hearing date.

[5] The Defendant has never sought to oppose confirmation of the Assessment Report, appeal it or otherwise set it aside.

[6] The Plaintiffs subsequently initiated proceedings against the Defendant for defamation in relation to a website which he put up and which referenced the Plaintiffs’ legal services in a derogatory way, and which the Plaintiffs claimed was defamatory. The Defendant defended the Claim and also issued a Counterclaim.

[7] The Plaintiffs brought a motion in writing to strike the Counterclaim and parts of the Defence. On January 3, 2021, Pollak J. granted the motion with leave to amend in respect of the Counterclaim.

[8] On January 14, 2021, the Defendant served an Amended Statement of Defence and Counterclaim. On the same day, the Plaintiffs served a Demand for Particulars. The Defendant has not provided a substantive response.

[9] The Plaintiffs’ request for a hearing date for the motion to strike was directed to a case conference before me on March 29, 2023. The Defendant did not attend again. I directed that the Plaintiffs could bring a motion in writing for the relief sought.

[10] The Plaintiffs have brought this motion in writing pursuant to my direction which included service upon the Defendant and a timetable within which the Defendant could respond; the Defendant did not submit any responding materials.

Rule 25: Abuse of Process/Collateral Attack

[11] It is well settled that a judicial order pronounced by a court should not be brought into question in subsequent proceedings unless it is challenged pursuant to procedures established for the express purpose of challenging it: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 37. When such claims are brought other than by way of appeal or other appropriate processes, this will be an impermissible collateral attack which is an abuse of process: FortisBC Energy v. Surrey (City), 2013 BCSC 2382, [2013] B.C.J. No. 2852, at para. 74; Brown v. Canada (Attorney General), 2019 YKSC 21, 10 P.P.S.A.C. (4th) 299, at para. 74.

[12] The doctrine of abuse of process also applies to prevent the litigation of issues that could have been raised in a previous proceeding: Winter v. Sherman Estate, 2018 ONCA 703, 42 E.T.R. (4th) 181, at para. 8.

[13] Justice Pollak had struck out the Defendant’s Counterclaim in respect of the causes of action breach of contract, breach of fiduciary duty, breach of duty of care and deceit as disclosing no cause of action.

[14] The Defendant’s Amended Counterclaim in respect of these causes of action reference issues which the Defendant alleges in respect of the Plaintiffs’ representation of the Defendant which culminated in the Assessment Officer’s decision of March 27, 2019 awarding the Plaintiffs the sum of $7,379.93.

[15] The Amended Counterclaim in respect of each of these causes of action is as follows:

• The pleading in respect of the breach of contract claim sets out that the Plaintiffs allegedly terminated the Contingency Fee Retainer Agreement without good and reasonable cause.
• The pleading in respect of breach of fiduciary duty claims that the Plaintiffs put pressure on him to sign an agreement as part of the labour proceedings; ultimately, the Defendant did not sign this.
• The negligence claim relates to his alleged lack of interest in the case, failure to keep the Defendant informed, and failure to use reasonable skill in handling the case.
• The deceit claim references paragraphs of the Contingency Fee Retainer Agreement which set out as follows: “Section (4) and paragraph (2) of the Contingency Fee Retainer Agreement states “In consideration for the usual firm fee of $300.00 per hour being reduced to a contingency fee, the Client will be billed 35 % of the proceeds or settlement of the case, or the higher of 35% or $300.00 per hour if the Client accepts a settlement of less than $10,000.” The Defendant claims that this contractual provision was “false, or is reckless as to whether it is true or false.”

[16] With respect to each of these causes of action, the Amended Counterclaim alleges that the Defendant suffered damage in the amount of $7,379.93, the exact amount of the Assessment Officer’s award to the Plaintiffs.

[17] The facts which the Defendants sets out in these amendments are all issues which he could have raised before the Assessment Officer to oppose the fees sought by the Plaintiffs or pursuant to an appropriately constituted process. The Defendant could have also brought a motion to oppose confirmation of the Report of the Assessment Officer pursuant to r. 54.09(3) of the Rules of Civil Procedure.

[18] Although the Defendant’s Amended Counterclaim baldly claims an additional $35,000 related to these causes of action, there are no facts pleaded in support of these alleged damages apart from his complaints about the Plaintiffs’ representation of him pursuant to the retainer. In my view, this is also an attempt to collaterally attack the Assessment Officer’s Report and/or to raise issues which could have been raised with the Assessment Officer but were not.

[19] As such, with respect to all of these claims, the Amended Counterclaim is an impermissible attack on the Assessment Officer’s award, and therefore an abuse of process.

Rule 21: Cause of Action

[20] I add that the Defendant’s own pleading states that after the termination of the retainer he “negotiated an improved settlement for his case”. Therefore, he admits that the Plaintiffs’ services pursuant to the retainer, did not in fact cause him any monetary damages.

[21] Damages are a constituent element of each of the causes of action alleged: MacLean v. National CarWash Solutions, 2020 ONSC 6032, at paras. 34, 48, 66 and 74-75; Ast v. Mikolas, 2010 BCSC 127, 54 E.T.R. (3d) 121, at para. 124; Martin v. Goldfarb, at para. 84.

[22] Therefore, based upon the Defendant’s own pleading, these causes of action are incomplete.

[23] Furthermore, although the Defendant also claims punitive and exemplary damages in respect of these causes of action, he does not plead the constituent elements required for an award of punitive damages or underlying facts which would justify such an award: See Whiten v. Pilot Insurance Co, 2002 SCC 18, [2002] 1 S.C.R. 595, at para. 26, which sets out that punitive damages should only be resorted to in exceptional cases as punishment for harsh, reprehensible and malicious conduct.

[24] Therefore, it is plain and obvious that the Amended Counterclaim does not disclose a cause of action. See R v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 17 regarding the test pursuant to Rule 21.

Conclusion

[25] Therefore, the Amended Counterclaim is struck out.

Leave to Amend

[26] I do not grant leave to amend. The Defendant has already had one opportunity to amend. He did not provide any additional particulars when requested; therefore, there is no reason to suppose that he has any additional facts that would change the outcome herein.

Justice Papageorgiou Date: June 13, 2023