COURT FILE NO. CV-21-00672885-0000 DATE: 20230809

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MELISSA BELL Plaintiff (Responding Party), Unrepresented and Acting in Person

- and-

JARED HEARTLY TEITEL Defendant (Moving Party)

COUNSEL: Rebecca Glass, for the Defendant

HEARD: June 26, 2023

REASONS FOR DECISION

G. DOW. J.

[1] The defendant sought dismissal of this claim on three grounds:

i) the defendant, as counsel for the father of the plaintiff’s child in family law proceedings between them, owed no duty of care to the plaintiff;

ii) the claims made against the defendant arose out of the defendant's representation of the father of the plaintiff's child and were thus protected by the doctrine of absolute privilege; and

iii) the action was vexatious or an abuse of process (either or both).

Background

[2] The hearing date was scheduled at Civil Practice Court and was the subject of a plaintiff’s request for an adjournment which was heard on March 28, 2023 and denied. The timetable as ordered included that any responding plaintiff material be served on or before January 4, 2023 and the respondent's factum by March 3, 2023. That did not occur. The four page factum available from the plaintiff was not uploaded to CaseLines until shortly before the hearing commenced.

[3] The defendant is a lawyer who represented the father of the plaintiff’s child in family law proceedings from 2017 with regard to issues of child support and disclosure. The proceedings appear to have culminated with Rule 2.1 reasons of the Court of Appeal (Bell v Fishka, 2022 ONCA 683). In those reasons, the history between the parties was summarized and the Court stated Melissa Bell had "repeatedly litigated issues that have already been decided, engaged in abusive behaviour, and deliberately failed to comply with clear court orders. These appeals are the last in a long series of fruitless proceedings pursued by the appellant" (at paragraph 4).

[4] The reasons of the Court of Appeal quoted Simpson v The Chartered Professional Accountants of Ontario, 2016 ONCA 806, (at paragraph 41) "Everyone is entitled to their day in court but once they have had that day, they cannot be permitted to subject other parties to the cost of further proceedings attempting to re-litigate issues that have already been decided." The court then added, "That is the case here".

[5] There are outstanding costs orders payable by the plaintiff to this defendant's (former) client.

[6] I have reviewed the entire Statement of Claim and have concluded all of the allegations against the defendant originate from his representation of his client, that is, the father of the plaintiff’s child. The Statement of Claim includes allegations between the child, born in 2009 and thus a person under disability by virtue of his age, and his father. The plaintiff made submissions that she was acting on the child's behalf given his status as a person under disability. I referred the plaintiff to the Rules which provide for the manner in which persons under disability can maintain actions against other individuals (Rule 7) and that the approach taken in this action was not in accordance with those requirements.

[7] The Statement of Claim makes allegations which, if accepted as proven, could amount to various causes of action such as defamation and assault. As can occur in motions to strike, were this the only basis, the defendant's motion would fail. However, given all of the allegations arise out of the defendant's representation of an individual the plaintiff litigated against, it remains open to determine if the grounds itemized above, bar this action from proceeding.

No Duty of Care

[8] The law generally does not impose any duty of care on a lawyer to anyone other than his own client. See 2116650 Ontario Inc. Grant v LLF Lawyers LLP, 2019 ONSC 114 (at paragraphs 32 to 36). At the heart of this principle is the need to avoid a lawyer being in a conflict of interest. Where a duty of care on a lawyer can arise requires three elements:

i) the lawyer is aware the individual is relying on his or her skill and advice;

ii) the individual must in fact rely on that lawyer's skill and advice; and

iii) it was reasonable for the individual to rely on that skill and advice.

[9] None of those elements were present here or pleaded. As a result, none of the plaintiff’s claims in negligence as against the defendant can succeed.

Absolute Privilege

[10] This can apply to any type of action. As stated "no action lies, whether against judges, counsel, jury, witnesses or parties, for words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognized by law" (Salasel et al. v Cuthbertson et al., 2015 ONCA 115 at paragraph 35). This applies in any action and is not limited to actions for defamation (Salasel et al. v Cuthbertson et al., supra, at paragraph 38).

[11] I find the conduct complained of in the Statement of Claim originates from the defendant's representation in earlier litigation between the plaintiff and the defendant's client. As a result, it is protected by absolute privilege. Again, the plaintiff's claim against the defendant cannot succeed.

Abuse of Process

[12] Both Rule 2.1 and Rule 21.01(3)(d) provide for the dismissal of an action where the action cannot succeed or was brought for an improper purpose. Here, the concern is further litigation against the defendant's client would be barred given the analysis, ruling and conclusion reached by the Court of Appeal in their decision referred to above (for clarity, Bell v. Fishka, 2022 ONCA 683). Further, there are outstanding orders for the payment of costs by the plaintiff to the father of her child, this defendant's client.

[13] This action was not directly susceptible to such a request or finding. However, given the nature of the allegations raised in the Statement of Claim, the previous finding made by the Court in proceedings that pertained to the very source of those allegations and my finding, it is obvious that the action cannot succeed. As a result, I have concluded this amounts to an abuse of process. I am reinforced in this conclusion by the statement made in Heydary Hamilton PC v Di! Muhammad, 2013 ONSC 4938 "courts have often found it to be "an abuse of process to sue opposing counsel, under the guise of any cause of action, for their conduct of a case" (at paragraph 22).

Leave to Amend

[14] In this case, the defendant owed no duty of care to the plaintiff. The actions of the defendant are entirely related to his representation of a party with whom the plaintiff litigated and whose actions were protected by litigation privilege. Finally, I have found the substance of this action to be an abuse of process. As a result, there is no basis to allow leave for the plaintiff to amend her pleading.

Conclusion

[15] The action is dismissed without leave to amend.

[16] The Costs Outline of the defendant and the submissions of his counsel was for payment of $10,764.24 of partial indemnity fees (60% of actual fees) plus HST (which I calculate to be $1,399.35) and disbursements of $587.75. The actual hourly rates of counsel who appeared before me, (called to the bar in 2014) began at $240.00 at the commencement of the retainer to $295.00 at the time of her appearance on this motion. I have no difficulty with those hourly rates or the time docketed. I award costs in the amount requested, which totals $12,751.34 inclusive of partial indemnity fees, HST and disbursements.

[17] Counsel for the defendant requested the plaintiff’s approval as to the form and content of the formal order be dispensed with. In all the circumstances, I am not prepared to do so. However, I am prepared to review and will sign a properly drafted order emailed to me at the email address from which these Reasons were released with that draft order copied, by email, to the plaintiff for any comment or submissions, not to exceed two double spaced typewritten pages in a readable font within two business days of the date of the email enclosing the draft order, copied, by email, to counsel for the defendant.

G. Dow, J. Released: August 9, 2023