Court File and Parties
COURT FILE NO.: CV-22-3301 DATE: 2023-07-28 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
DENNIS BRADLEY ROBINS and LYNNE FORD ROBINS Plaintiffs – and – 2758729 Ontario Inc., cob Complete Home Comfort, KRISHNA THILLANADARAJAH, MANJIT SINGH, BANKRIGHT FINANCIAL LTD., aka Bank Right Financial Ltd., YUVAL BARZAKAY, 2820992 ONTARIO INC., MICHAEL YOSHER, STEPHEN MARTIN PRICE, NITASHA AZHAR MALIK, GABRIEL KRIKUNEZ and KRIKUNEZ LAW PROFESSIONAL CORPORATION Defendants
AND BETWEEN:
BANKRIGHT FINANCIAL LTD., aka Bank Right Financial Ltd., YUVAL BARZAKAY, 2820992 ONTARIO INC. and MICHAEL YOSHER Plaintiffs by Counterclaim – and – DENNIS BRADLEY ROBINS, LYNNE FORD ROBINS, DENNIS GEOFFREY CRAWFORD, MONTEITH RITSMA PHILLIPS PROFESSIONAL CORPORATION, ONTARIO HVAC SCAM and ONTARIOHVACSCAM.COM Defendants by Counterclaim
Counsel: Solomon Fischhoff, for the Plaintiffs by Counterclaim Jordan Goldblatt and Jordan Katz, for the Defendants by Counterclaim
HEARD: May 23, 2023, by videoconference, virtually at Stratford
HEENEY J.:
[1] The motions and cross-motions before the court arise from four separate Stratford actions that are virtually identical, in terms of the allegations against the defendants and defendants by counterclaim as well as the issues to be determined. The only differences relate to the parties involved.
[2] In CV-22-3309 (the “Meaney action”), the plaintiffs asserted claims against a number of defendants, including 2748204 Ontario Inc, o/a Flex Home Loans (“FHL”), Michael Yosher, and Sergio Marino, who is allegedly an investor in FHL. FHL, Yosher and Marino have counterclaimed against the lawyer for the plaintiffs, Dennis Geoffrey Crawford, and his law firm, Monteith Ritsma Phillips Professional Corporation (collectively “the Lawyers”), as well as other parties.
[3] In CV-22-3313 (the “Davies action”), the plaintiffs asserted claims against FHL and Yosher, among others. FHL and Yosher counterclaimed against the Lawyers.
[4] In CV-22-3264 (the “Bessel action”), the plaintiffs asserted claims against Yosher, Bankright Financial Ltd. (“Bankright”), Yuval Barzakay, and 2820992 Ontario Inc. (“282”), among others. Bankright, Barzakay, 282 and Yosher counterclaimed against the Lawyers.
[5] The fourth action is the Robins action, which is the file in which these reasons are being written. As is evident from the title of proceedings above, the defendants include Bankright, Barzakay, 282 and Yosher. Those same parties have counterclaimed against the Lawyers.
[6] The Lawyers have brought a motion in each file under r. 21.01(1)(b) to strike the counterclaim. The plaintiffs by counterclaim in each file have brought a motion for leave to tender evidence on the Lawyer’s motions, as well as to remove the Lawyers as counsel of record and to stay or transfer these actions to other regions. The latter two sets of motions have been adjourned to a case conference on August 9 at 4 p.m. Thus, the only motions to be dealt with in these reasons are the Lawyer’s motion to strike, and the motion of the plaintiffs by counterclaim to tender evidence on that motion.
[7] The material filed on these two motions is identical in each file, save for the names of the parties. For that reason, they were argued as if they were one motion and one cross-motion. These reasons will similarly deal with all files as if they were one, and the reasons given will apply to, and dispose of, the same motions and cross-motions in each of the four files noted above.
Overview
[8] The Lawyers act for the plaintiffs in all four actions. The Robins action typifies the claims made in each action. The plaintiffs claim that they are the victims of a “province-wide scam”, whereby door-to-door salesmen came to their residence and, through the use of high pressure sales tactics, induced the plaintiffs to sign a purchase agreement, whereby Complete Home Comfort would provide a list of goods and services, including “whole home air sealing”, “whole home infestation treatment”, “home energy optimizer”, “whole home disinfection treatment”, “whole home EMF neutralizer devices”, “whole home water sewer clean up treatment”, and “whole roof leaf guard protection”.
[9] The plaintiffs also claim that they were induced to sign a “mortgage commitment”, as a result of which a mortgage was ultimately registered against their home. This mortgage was in the amount of $45,000, even though the amount supposedly to be advanced under the mortgage was only $28,000, and would require the plaintiffs to pay the total amount of over $86,000 over five years.
[10] They further claim that almost none of the promised services were ever provided, and the products that were supplied were useless.
[11] The plaintiffs ask, in their prayer for relief, for a declaration that the agreements were cancelled pursuant to the provisions of the Consumer Protection Act, 2002, S.O. 2002, c. C-30, that the agreements be rescinded, and that the mortgage be deleted from title to their property.
[12] The plaintiffs by counterclaim defended the actions, although some of the other defendants did not. The plaintiffs by counterclaim are implicated in these proceedings in their capacity as lenders and mortgage-holders, and will collectively be referred to hereafter as “the Lenders”. They launched a counterclaim in each action, not only against the plaintiffs but also against the plaintiffs’ lawyer, Dennis Crawford, and his law firm.
[13] In their counterclaims, the Lenders make a number of allegations, including the following:
- That the Lawyers have wrongfully attempted to create a “cottage industry” for themselves by maligning the Lenders in each of the four actions before the court, and in at least 6 other actions involving 11 additional customers of the Lenders;
- That the Lawyers wrongfully obtained a confidential list of the Lender’s customers, with a view to developing the customers as clients and making money;
- That the Lawyers have a financial interest in “stirring up litigation”;
- That they held themselves out to the public as specialists in “deleting illegitimate mortgages”;
- That they induced the Lender’s customers to default on their loans, and to commence lawsuits; and,
- That they commenced wrongful claims intended to wrongly prevent the Lenders from enforcing their loans.
[14] In their counterclaim, the Lenders plead their claims under three categories: conspiracy, intentional interference with economic relations, and champerty and maintenance.
[15] Counsel for the Lenders concedes that the claims relating to champerty and maintenance should be struck. However, in their response to this motion they wish to assert a new, unpleaded cause of action for “Breach of Privacy/Invasion of Privacy/Misappropriation of Confidential Information” arising out of the allegation that the Lawyers obtained a list of the Lender’s customers and identified them for “targeted marketing” of their legal services.
[16] The Lawyers ask that the counterclaims against them be struck in their entirety, without leave to amend. They rely on well-established caselaw that the circumstances where a litigant can sue an adverse party’s lawyer are extremely limited, and that to allow such a claim to proceed would jeopardize the adversarial system and undermine solicitor-client privilege.
Rule 21.01
[17] Rules 21.01(1) and (2) of the Rules of Civil Procedure provide as follows:
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.
- 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).
[18] Although the Notice of Motion purported to claim relief “under Rule 21.01(1)(a) or (b)”, no relief was actually claimed under r. 21.01(1)(a), and no question of law was raised for determination under that provision. Counsel clarified their position in para. 15 of their Factum, where they said this:
The issue on these motions is whether the Lenders have pled a proper claim against the Lawyers. The Lawyers move under Rule 21.01(1)(b) of the Rules of Civil Procedure to have the counterclaims struck without leave to amend.
[19] The Lawyers formally abandoned any claims under r. 21.01(1)(a) in their Reply Factum.
[20] The approach to be followed on a motion under r. 21.01(1)(b) is summarized in Paton Estate v. Ontario Lottery and Gaming Corp., 2016 ONCA 458 at para. 12:
It is not determinative, on a motion to strike, that the law has not yet recognized a particular claim. Rather, the court must ask whether it is plain and obvious that the claim has no reasonable prospect of success. The court must take the facts pleaded in the statement of claim as true, unless they are patently ridiculous or manifestly incapable of being proven, and the approach must be generous, erring on the side of allowing a novel, but arguable, claim to proceed. While no evidence is admissible on a motion to strike, claimants must clearly plead all facts on which they intend to rely, as those facts are the basis on which the possibility of success will be evaluated. See Imperial Tobacco Canada Ltd. v. Ontario, 2005 SCC 49, at paras. 17-22; and Frank v. Legate, 2015 ONCA 631, at para. 36, and the cases cited therein.
The Lenders’ Motion for Leave to Tender Evidence
[21] The Lenders have brought a motion for leave to tender evidence on the Lawyer’s motion.
[22] In a motion under r. 21.01(1)(a), evidence may be tendered either on consent of the parties or with leave of a judge. However, as already noted, this motion does not engage that subrule. It is, instead, brought under r. 21.01(1)(b).
[23] Rule 21.01(2)(b) clearly provides that “no evidence is admissible on a motion … under clause (1)(b)”. There is no provision for the tendering of evidence with leave.
[24] The Lender’s motion is, therefore, dismissed.
General Principles
[25] There is a wealth of caselaw holding that a lawyer owes no duty of care to the clients of opposing counsel in litigation matters. As was stated by the Ontario Court of Appeal in Diamond Contracting Ltd. v. MacDearmid at para. 3:
The general rule is that a lawyer owes no duty of care to the clients of opposing counsel in litigation or commercial matters. A lawyer acting in his or her professional capacity owes a duty of care to his or her client, not to clients represented by opposing counsel. As was noted by Lane J. in Baypark Investments Inc. et al v. Royal Bank of Canada (2002), 57 O.R. (3d) 528 (S.C.J.) at para. 33,
To hold otherwise would place solicitors in an untenable conflict between their duty to their client and their need to protect themselves against their client’s adversary.
[26] In Crown Crest Financial Corp. v. Sabbah, 2019 ONSC 7144, Perell J. made it clear that claims against lawyers made by opposing litigants can be struck out not only because there is no duty of care owed, but also for public policy reasons. He said this, at paras. 26-31:
An action in negligence against a litigant’s adversary’s legal counsel for negligence or for breaches of ethical duties, will be struck out on the grounds that a lawyer has no duty of care to his client’s adversary in litigation. However, the action will also be struck out on public policy grounds.
The public policy prohibiting such claims is that they would interfere with the loyalty relationship between a litigant and his or her legal representative and would encourage re-litigation of the dispute between the litigants and collateral attacks on the judgments reached in the dispute between the litigants.
In German v. Major, 1985 ABCA 176, Justice Kerans of the Alberta Court of Appeal stated at paragraph 58 in a case where pleadings in an action against a lawyer were struck:
- The trial-as-a-contest of which I speak requires, in our tradition, a champion. The loyalty of counsel to clients traditionally has no bounds save to be honest and respectful. It would be a remarkable alteration in the adversary system for counsel for one party in litigation to be accountable to the other party for the conduct in good faith of the litigation. The duty of counsel is to represent his client's interests; the law should not impose a conflicting duty upon him.
The same public policy rationale should apply to the circumstances of the immediate case where a claim against a legal representative is made for allegedly inducing his or her client’s breach of contract by giving misleading legal advice. In the immediate case Crown Crest pleads in paragraph 15 of its Statement of Claim that Mr. Sabbah falsely misrepresented, i.e., gave fallacious advice, to the Small Claims claimants that the Agreements were unlawful and/or that they could recover a windfall if they commenced the Small Claims Actions.
Removing the allegedly unlawful way that Mr. Sabbah recruited his clients, what he did in the immediate case is what lawyers often do, which is to advise clients about their rights under a contract and to take instructions to bring or defend legal proceedings.
It cannot be the case that a lawyer’s or licensed paralegal’s providing legal advice about a contract is an inducement to breach a contract, but more to the point, the same public policy grounds that apply to a negligence claim should apply in the circumstances of the immediate case, which are, practically speaking, not much different from the circumstances of a negligence claim against an adversary’s legal representative. In either case, the possibility of a claim interferes with lawyer and client relationships and disrupts the loyalty that a lawyer owes to his or her client. The possibility of a claim by a litigant against the lawyer acting for his adversary because of the advice that the lawyer gives his or her client would make the adversary system unworkable.
[27] Justice Chown, in Chuvalo v. Worsoff, 2022 ONSC 4079, at paras. 31-36, indicated that such claims can also amount to an abuse of process:
Lawyers 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.
In 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.
Our 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.”
The rule against suing an adverse lawyer is authoritatively stated in The Law of Civil Procedure in Ontario:
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.
This 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.
There 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.
[28] Against the backdrop of these general principles, I will now examine the specific claims made against the Lawyers in the counterclaims.
Conspiracy
[29] There are two types of civil conspiracy claims recognized in our law: the “predominant purpose” conspiracy, and the “unlawful act conspiracy”. The elements of each are described by Goudge J.A. in Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460 at para. 24:
The seminal case in Canada on the tort of civil conspiracy is Canada Cement Lafarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452, [1983] S.C.J. No. 33. Speaking for the court, Estey J. described, at pp. 471-72 S.C.R., two categories of conspiracy recognized by Canadian law:
Although the law concerning the scope of the tort of conspiracy is far from clear, I am of the opinion that whereas the law of tort does not permit an action against an individual defendant who has caused injury to the plaintiff, the law of torts does recognize a claim against them in combination as the tort of conspiracy if:
(1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants' conduct is to cause injury to the plaintiff; or,
(2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.
In situation (2) it is not necessary that the predominant purpose of the defendants' conduct be to cause injury to the plaintiff but, in the prevailing circumstances, it must be a constructive intent derived from the fact that the defendants should have known that injury to the plaintiff would ensue. In both situations, however, there must be actual damage suffered by the plaintiff.
[30] Here, the Lenders pleaded that the Lawyers solicited the customers of the Lenders for the purpose of building their client base and making money, and that is, I find, the predominant purpose of the Lawyers’ actions on the case as pleaded. The predominant purpose is not to cause injury to the Lenders. While the Lenders, if ultimately unsuccessful in the action, could suffer adverse financial consequences, that is the case in virtually every civil case seeking damages, brought by a lawyer acting for a client, and cannot constitute a conspiracy between the lawyer and the client to cause injury to the Lenders.
[31] In Utilebill Credit Corporation v. Exit It Contract Consulting Inc., 2022 ONSC 2307, at para. 46, Myers J. put it this way:
By definition, it is not a conspiracy to injure a third party where a defendant is acting in its own economic self-interest as pleaded.
[32] Morgan J. made this same point in Heydary Hamilton PC v. Dil Muhammad, et al., 2013 ONSC 4938, at paras. 56-58:
The nature of the allegation against Schorr and his supposed co-conspirators, the Muhammad Group, virtually ensures that the claim cannot succeed on the intent to injure branch of the Canada Cement LaFarge test. For a conspiracy to injure to be made out, Heydary would have to establish that the predominant purpose of Schorr's conduct was not to vindicate the rights of the Muhammad Group as client, but to cause injury to Heydary. As Lord Diplock put it in Lonrho Ltd. v. Shell Petroleum Co. (No. 2), [1982] A.C. 173, [1981] 2 All E.R. 456 (H.L.), to be a conspiracy the acts of two or more persons must be done "for the purpose not of protecting their own interests but of injuring the interests of the plaintiff".
The statement of claim contains nothing that would distinguish the allegations against Schorr from the conduct of every litigation lawyer. Indeed, if taken seriously the claim would undermine the adversarial system and the well-established role of counsel in advising a client to bring legal action against an opponent.
As indicated, lawyers enjoy a privileged relationship with their client, and within that context their litigation-oriented legal advice does not amount to a conspiracy with their client to injure the opposing party (Crescent Farm (Sidcup) Sports Ltd. v. Sterling Offices Ltd., [1972] Ch. 553, [1971] 3 All E.R. 1192 (Ch. Div.), at pp. 561-62 Ch.). If the lawyer advises the client to sue where the client would have been better advised not to, the client may lose its case and the successful side's recompense will be in costs. Suing opposing counsel for damages for his representation of the adverse party is simply not how the system works.
[33] It is clear that the claim based on predominant purpose conspiracy is fatally flawed.
[34] As to unlawful act conspiracy, the Lawyers must have engaged in acts that are wrong in law, whether actionable at private law or not, in order to meet the “unlawful conduct” element: Agribrands, at para. 38.
[35] Here, the counterclaim alleges that the Lawyers acquired, in some unspecified manner, a list of the Lenders’ clients, used it to contact clients, and then induced them to breach their contracts and commence litigation. For reasons outlined above, advising a client that a contract is unenforceable and need not be complied with, and recommending that litigation be commenced, is what lawyers routinely do, and cannot constitute a wrongful act conspiracy.
[36] In para. 61 of their Factum, the Lenders particularize the allegedly unlawful conduct in the following terms:
The Lender Defendants have plead that the MRPPC Defendants acted in concert with parties known only to themselves. The activity complained of was the breach of privacy and the appropriation of proprietary and confidential information. The MRPPC Defendants have admitted that they targeted a “list” of Lender Defendant customers, but they have refused to deliver the “list” or credibly explain the origination of the same. As stated earlier, the MRPPC Defendants not only breached the privacy of the Lender Defendants, but of the Plaintiffs too.
[37] The precise pleading can be found at para. 72 of the Statement of Defence and Counterclaim, where it is alleged that “on a date and time known” to the Lawyers, the Lawyers “met with parties known only to themselves (the “co-conspirators”) and obtained a list of Bankright customers.”
[38] An allegation of conspiracy is a serious matter, and must be pleaded with heightened particularity. In Ontario Consumers Home Services v. Enercare Inc., 2014 ONSC 4154, at paras. 24-5, O’Marra J. outlined the essentials of a conspiracy pleading:
To plead civil conspiracy a statement of claim must state with precision and clarity material facts as to:
a) the parties to the conspiracy and their relationship of one to the other;
b) the agreement between or amongst the defendants to conspire, including particulars as to the time, place and mode of agreement;
c) the precise purpose or object of the conspiracy;
d) the overt acts alleged to have been done by each of the alleged conspirators in pursuance and furtherance of the conspiracy, including the time, and place and nature of the acts; and
e) the injury and damage caused to the plaintiff as a result of conspiracy.
Conspiracy is an intentional tort and a serious allegation as such the material facts must be pleaded with heightened particularity. In Ballard v. Stavro, the court stated at para. 31:
Under Rule 25, a statement of claim must contain a concise statement of all the material facts on which a party relies for the claim. The issues in dispute must be sufficiently identified as to enable the parties to plead a response without having to speculate. Where this minimum level of disclosure is not satisfied, the pleading is irregular. In certain circumstances, it may be appropriate to grant leave to amend or order that particulars be granted. In others the pleading is ordered to be struck. In an action such as this where there are serious allegations of conspiracy, the level of disclosure of material facts is required to be higher.
[39] At para. 27 he added the following:
Further, it was noted in J.G. Young and Sons, that the plaintiff is under a heavy burden as a consequence of seeking to plead such a serious cause of action as that of conspiracy. In Balanyk v. University of Toronto, at para. 29 Cameron J. stated:
If the plaintiff does not, at the time of the pleading, have knowledge of the facts necessary to support the cause of action, then it is inappropriate to make the allegations in the statement of claim.
[40] Here, the Lenders allege that the Lawyers conspired with unknown parties, at an unknown place and time, came to an agreement of unknown mode, and then engaged in unknown acts in furtherance of the conspiracy. It is clearly a fatally flawed pleading. It can fairly be said that if the Lenders did not know the facts necessary to support their allegation of conspiracy, they should not have made it.
[41] Quite apart from the lack of particularity, the underlying allegation of wrongful conduct is untenable. The Lenders raise the allegation that the wrongful conduct engaged in by the Lawyers was in breaching the privacy of both the Lenders and the plaintiffs themselves. As already mentioned, this same allegation was raised as a new, stand-alone cause of action, in addition to the ones already pleaded, as summarized at para. 14 above.
[42] I will deal with the breach of privacy issue below. For reasons which I will outline, I am of the view that receiving and making use of information that is registered and publicly available in the Land Titles system, and which constitutes notice to the world as to who is the mortgagor, who is the mortgagee, and the terms of the mortgage, is not unlawful activity, and cannot constitute a breach of privacy.
[43] I conclude that it is plain and obvious that the claim in conspiracy, be it predominant purpose conspiracy or unlawful act conspiracy, has no reasonable prospect of success, and does not disclose a reasonable cause of action. It must, therefore, be struck.
Intentional Interference with Economic Relations
[44] The elements of this tort are set out by Perell J. in Crown Crest (supra) at para. 21:
The elements of a claim of inducing breach of contract are: (1) the plaintiff is a party to a valid and enforceable contract; (2) the defendant is aware of the contract and its terms; (3) the defendant intends to procure a breach of the contract; (4) the defendant persuades or induces a contracting party to breach the contract with the plaintiff; and, (5) the plaintiff suffers damages as consequence of the breach of the contract.
[45] The authorities already cited make it clear that a lawyer cannot be held liable for advising a client that a contract is unenforceable and may be breached with impunity. If further authority were required, Myers J. made the point in one sentence in Utilebill Credit Corporation v. Exit It Contract Consulting Inc., 2022 ONSC 2307 at para. 29:
There is nothing illegal in a lawyer or paralegal advising a client that he, she, or it has claims to avoid a contract.
[46] The Lenders argue that, while no liability can be attached for advice given to a client, the representations are alleged to have occurred prior to the plaintiffs’ retainer.
[47] The problem with that argument is that there is no way of proving when advice was given without encroaching on solicitor/client privilege. In Frank v. Legate, 2015 ONCA 631, the Court of Appeal upheld the striking out of a Statement of Claim as an abuse of process because, among other things, “the intentional interference with economic relations claim necessarily involved the disclosure of privileged solicitor and client communications related to ongoing litigation against the appellant.”
[48] Furthermore, the Supreme Court of Canada has held that the solicitor/client relationship, and the privilege that goes with it, arises as soon as the potential client has his first dealings with the lawyer’s office in order to obtain legal advice, not when the retainer is established. In Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860, Lamer J., as he then was, said this, at paras. 32-3:
When dealing with the right to confidentiality it is necessary, in my view, to distinguish between the moment when the retainer is established and the moment when the solicitor-client relationship arises. The latter arises as soon as the potential client has his first dealings with the lawyer's office in order to obtain legal advice.
The items of information that a lawyer requires from a person in order to decide if he will agree to advise or represent him are just as much communications made in order to obtain legal advice as any information communicated to him subsequently. It has long been recognized that even if the lawyer does not agree to advise the person seeking his services, communications made by the person to the lawyer or his staff for that purpose are nonetheless privileged (Minter v. Priest, [1930] A.C. 558; Phipson on Evidence, 12th ed., 1976, p. 244, No. 589; 8 Wigmore, Evidence (McNaughton rev. 1961), p. 587, para. 2304).
[49] I conclude that it is plain and obvious that the claim in intentional interference in economic relations has no reasonable prospect of success, and does not disclose a reasonable cause of action. It must, therefore, be struck.
Breach of Privacy etc.
[50] Having dealt with the pleaded causes of action, I move to the proposed cause of action for “Breach of Privacy/Invasion of Privacy/Misappropriation of Confidential Information”.
[51] In seeking to plead this cause of action, the Lenders rely on Crown Crest (supra), where Perell J., although striking the Statement of Claim in its entirety against the defendant paralegal for reasons already referred to, did grant leave to the plaintiff to deliver a Fresh as Amended Statement of Claim, limited to the allegations of an alleged breach of its privacy and for misappropriation of its confidential and proprietary information. He stated, at para. 51, that “[i]t appears that privacy torts were committed before Mr. Sabbah entered into a licensed paralegal and client relationship with the claimants in the Small Claims Court actions”. However, the allegation in that case was that the defendant “obtained confidential and sensitive business records belonging to Crown Crest, by unlawful means”: para. 6.
[52] At para. 75 of their Factum, the Lenders particularize what they intend to plead, if I were to grant them leave to amend:
The Breach of Privacy occurred when the MRPPC Defendants obtained/received/conspired to obtain and/or receive the Lender Defendants’ list of customers and identified them for ‘targeted marketing. Certainly at the time the MRPPC Defendants obtained the Lender Defendants’ list of customers, the Lender Defendant and their assignees never consented to a release of the customer list and the Plaintiff(s) were not yet the MRPPC Defendants’ clients.
[53] In Jones v. Tsige, 2012 ONCA 32, Sharpe J.A., speaking for the court, recognized the tort of invasion of privacy, otherwise described as “intrusion upon seclusion”. He outlined the elements of this tort at paras. 70-71:
I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts (2010) formulation which, for the sake of convenience, I repeat here:
One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.
The key features of this cause of action are, first, that the defendant's conduct must be intentional, within which I would include reckless; second, that the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.
These elements make it clear that recognizing this cause of action will not open the floodgates. A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy. Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one's financial or health records, sexual practises and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive.
[54] The allegedly private information that the Lawyers allegedly, and in some unspecified manner, came into possession of, was a list that showed that certain customers, which included the plaintiffs, had mortgages with certain of the Lenders.
[55] The fact that the plaintiffs had a mortgage with a particular Lender is a matter of public record. It is recorded on title under the Land Titles Act, which constitutes notice to the world as to the existence of the mortgage, the identity of the parties and the terms of the mortgage. Quite simply, there is nothing remotely private about this information, given that it is available to any member of the public to see. It is not related to one’s financial or health records, sexual practises and orientation, employment, diary or private correspondence. Receiving and making use of this information could not possibly be regarded by a reasonable person as highly offensive, causing distress, humiliation or anguish, precisely because that information is already in the public domain.
[56] To reinforce this point, I return to Jones v. Tsige, where Sharpe J.A., at para. 41, quoted from the reasons of Binnie J. in R v. Tessling, 2004 SCC 67, [2004] 3 S.C.R. 432. Justice Binnie was discussing the concept of “informational privacy”, which is one of three categories of privacy interests that are protected by the Charter, and is the one at issue here. He characterized the question before the court in the following terms:
Beyond our bodies and the places where we live and work, however, lies the thorny question of how much information about ourselves and activities we are entitled to shield from the curious eyes of the state…
[57] Where mortgage information is registered under a Land Titles system that is administered by the government, and is fully accessible to any member of the public, it is clear that such information is already squarely within the gaze of “the curious eyes of the state”.
[58] The Lenders argue that, even though the information itself is not private, a list of that same information somehow is. They submit that there is no way that the Lawyers could have compiled all of that information by searching countless title records. Accordingly, they argue that, while the information itself is a matter of public record, compiling and receiving a list of that non-private information constitutes an invasion of privacy.
[59] In support of this argument, the Lenders rely on the decision of Sachs J. in Contract Testing Inc. v. Applied Consumer & Clinical Evaluations Inc., 2012 ONSC 2694. That was a breach of confidence case, not breach of privacy, but does address the issue as to what constitutes “confidential information”. At para. 5, she said this:
The question is whether any of this information can be considered "confidential information" as that phrase is understood in the case law. Generally speaking this means that the information that is not within the public domain. However, something may still be confidential if it is constructed solely from materials within the public domain if it was "brought into being by the application of the skill and ingenuity of the human brain" or if the confider was able to gain an advantage that he or she would not otherwise have had if he had to check only public sources (the "springboard" principle) (Lac Minerals Ltd. v. International Corona Resources Ltd.; Cadbury Schweppes Inc. v. FBI Foods Ltd., [1999] 1 S.C.R. 142 (S.C.C.); Coco v. A.N. Clark (Engineers) Ltd. (1968), [1969] R.P.C. 41 (Eng. Ch. Div.) and 1259695 Ontario Inc. v. Guinchard).
[60] The argument, as I understand it, is that the compilation of the list constituted the “springboard” to enable the Lawyers to obtain and access this publicly available information.
[61] In my view, the Lenders misunderstand the “springboard” principle. In Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574, Sopinka J., (McIntyre J. concurring), made it clear that this principle only arises where there is a mixture of private information and publicly available information. He held that a party cannot make unauthorized use of private information as a springboard to gain an advantage, even when some of the information is public.
[62] Sopinka J. discussed this concept at paras. 156-7:
In this regard the statement of Lord Greene in Saltman Engineering Co. v. Campbell Engineering Coy. (1948), 65 R.P.C. 203, [1963] 3 All E.R. 413 n (C.A.), (leave to appeal to House of Lords refused) at 215 [R.P.C.], which was quoted by the trial Judge, is apposite:
I think that I shall not be stating the principle wrongly if I say this with regard to the use of confidential information. The information, to be confidential, must, I apprehend, apart from contract, have the necessary quality of confidence about it, namely, it must not be something which is public property and public knowledge. On the other hand, it is perfectly possible to have a confidential document, be it a formula, a plan, a sketch, or something of that kind, which is the result of work done by the maker upon materials which may be available for the use of anybody; but what makes it confidential is the fact that the maker of the document has used his brain and thus produced a result which can only be produced by somebody who goes through the same process.
Seager v. Copydex, [1967] 2 All E.R. 415, [1967] 1 W.L.R. 923 (C.A.), cited by the appellant, provides a useful illustration of the concept of the use of added information to get a head start or to use it as a springboard. The plaintiff Seager was the inventor of a patented carpet grip. He negotiated with the defendant Copydex with a view to development of his invention. Negotiations were terminated without a contract. Copydex then proceeded to produce a competing grip. The Court found that much of the information which Seager gave to Copydex was public. But there was some private information that resulted from Seager’s efforts such as the difficulties which had to be overcome in making a satisfactory grip. At 931 [W.L.R.], Lord Denning M.R. stated:
When the information is mixed, being partly public and partly private, then the recipient must take special care to use only the material which is in the public domain. He should go to the public source and get it: or, at any rate, not be in a better position than if he had gone to the public source. He should not get a start over others by using the information which he received in confidence. At any rate, he should not get a start without paying for it.
[63] In the case at bar, there is no mixture of public and private information. Particulars about the plaintiffs’ mortgages with the Lenders is entirely a matter of public record. Simply putting the particulars of those mortgages on a list does not involve the use of private information, nor is it analogous to a formula, a plan, or a sketch brought into being by the application of the skill and ingenuity of the human brain on the publicly available information.
[64] I conclude that the list that the Lawyers allegedly came into possession of cannot constitute private information, nor could the use of that information constitute a deliberate and significant invasion of personal privacy which would be regarded by a reasonable person as highly offensive, causing distress, humiliation or anguish. I conclude that it is plain and obvious that the proposed claim for intrusion upon seclusion has no reasonable prospect of success, and would not disclose a reasonable cause of action. Accordingly, leave will not be granted to amend the Statement of Claim to plead that cause of action.
[65] The remaining question is whether leave should be granted to amend the Statement of Claim with respect to the other causes of action that have been pleaded. In my view, the reasons given for striking those claims go to the very core of the claims themselves, and demonstrate that they are untenable at law. These defects could not be rectified by any amendment. I am also mindful of the general principles outlined above, which make it clear that such claims are to be discouraged, because they interfere with lawyer and client relationships, disrupt the loyalty that a lawyer owes to his or her client, and make the adversary system unworkable. Such public policy considerations support the exercise of my discretion so as to decline granting leave to amend.
[66] An order will go, in each of the four actions noted above, that the Counterclaim as against the Lawyers is struck out in its entirety, without leave to amend.
[67] With respect to costs, counsel on both sides are very experienced and capable, and should be able to agree upon an appropriate order for costs. If they are unable to do so, I will accept brief written submissions from the Lawyers within 15 days, with the Lenders’ response within 10 days thereafter, and any reply within 5 days thereafter. Failing that, the parties will be deemed to have resolved the issue of costs as between themselves.
T. A. Heeney J.
Released: July 28, 2023
Robins v. 2758728 Ontario Inc. et al, 2023 ONSC 4367
COURT FILE NO.: CV-22-3301 DENNIS BRADLEY ROBINS and LYNNE FORD ROBINS Plaintiffs – and – 2758729 Ontario Inc., cob Complete Home Comfort, KRISHNA THILLANADARAJAH, MANJIT SINGH, BANKRIGHT FINANCIAL LTD., aka Bank Right Financial Ltd., YUVAL BARZAKAY, 2820992 ONTARIO INC., MICHAEL YOSHER, STEPHEN MARTIN PRICE, NITASHA AZHAR MALIK, GABRIEL KRIKUNEZ and KRIKUNEZ LAW PROFESSIONAL CORPORATION Defendants AND BETWEEN: BANKRIGHT FINANCIAL LTD., aka Bank Right Financial Ltd., YUVAL BARZAKAY, 2820992 ONTARIO INC. and MICHAEL YOSHER Plaintiffs by Counterclaim – and – DENNIS BRADLEY ROBINS, LYNNE FORD ROBINS, DENNIS GEOFFREY CRAWFORD, MONTEITH RITSMA PHILLIPS PROFESSIONAL CORPORATION, ONTARIO HVAC SCAM and ONTARIOHVACSCAM.COM Defendants by Counterclaim REASONS FOR JUDGMENT Mr. Justice T. A Heeney
Released: July 28, 2023