Court File and Parties
COURT FILE NO.: CV-16-560031 MOTION HEARD: 20230915 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Durreadan Mansoor, Plaintiff AND: Elizabeth Dookie and 7716745 Canada Inc. operating as Import Motors Canada, Defendants
BEFORE: Associate Justice Jolley
COUNSEL: Ashu Ismail, counsel for the moving party plaintiff Alan Rachlin, counsel for the responding party defendants
HEARD: 15 September 2023
REASONS FOR DECISION
Overview
[1] The plaintiff seeks leave to bring this motion and leave to amend her statement of claim to add a claim for punitive and aggravated damages for intentional infliction of mental distress.
[2] The proposed punitive and aggravated damages claim against the named defendants is based on the manner of the surveillance undertaken of the plaintiff by investigators retained by defence counsel and the lack of response from defence counsel when the issue was raised with her.
[3] The plaintiff proposes to allege that the surveillance has been aggressive, overt and unfounded and that defence counsel did not respond to her counsel about the nature of the surveillance when it was brought to her attention. She argues that punitive damages against the defendants are warranted as a result. Among other paragraphs, she seeks leave to plead that “the Defendants through counsel and insurer defending the claim has [sic] engaged in harassment and intimidation in order to harm the plaintiff, and have the plaintiff settle at a reduced value that does not properly reflect her injuries and impairments.” She relies on, among other statutes, the Criminal Code of Canada.
Leave
[4] As this action has been set down for trial, the plaintiff requires leave to bring this motion. The defendants do not oppose the request for leave and leave is granted.
The Proposed Amendments are not Tenable at Law
[5] While the plaintiff is correct that the court is to be generous in its reading of a proposed amendment, leave to amend is not to be granted where the amendment is not tenable in law.
[6] I am not satisfied that this proposed amendment raises a tenable claim against the defendants. While the plaintiff argued that the conduct of defence counsel, Ms. Nitchke, as agent for the defendants, could attract aggravated and punitive damages payable by the defendants, she provided no caselaw in support of the proposition that a party can be vicariously liable in punitive damages for the actions of their lawyer.
[7] There are a number of cases that have come to the opposite conclusion, starting with the seminal case of Hill v Church of Scientology of Toronto 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130. One issue before the courts at all levels in that action was whether punitive damages could be awarded against one defendant for the conduct of the other. Mr. Hill sued Scientology and its counsel Mr. Manning for public statements that Manning, accompanied by representatives of the Church, made suggesting criminal breaches of trust by Mr. Hill. At trial, Manning and Scientology were found jointly liable for general damages. Scientology alone was found liable for punitive and aggravated damages.
[8] In upholding the award of aggravated and punitive damages against Scientology alone, the Supreme Court of Canada stated:
“[195] These damages were awarded solely against Scientology and are based upon the misconduct of that appellant. There is no question of Manning being in any way responsible for these damages. Indeed, there cannot be joint and several responsibility for either aggravated or punitive damages since they arise from the misconduct of the particular defendant against whom they are awarded. See, for example, Sun Life, supra, at p. 1310; Egger v. Chelmsford, [1965] 1 Q.B. 248 (C.A.), at pp. 263 and 265; Vogel, supra, at p. 171; S. M. Waddams, The Law of Damages (2nd ed. 1991), at pp. 11 23 and 11 24.” (emphasis added)
[9] The court in Jamieson v Stavros 2006 BCSC 1057 considered a similar claim as that proposed on this motion. Jamieson sought punitive damages against the defendant based on the conduct of the defendant’s insurer in investigating and defending the claim against him. In dismissing the plaintiff’s motion to amend the claim to add a claim for aggravated and punitive damages, the court noted:
“30. The allegations made in support of a claim for aggravated and punitive damages relate not to the conduct of the defendant Liakos Stavros himself, but rather the alleged actions of the Insurance Corporation of British Columbia and its employees and investigators. The plaintiff alleges that the latter were agents of the present defendant, but that allegation is unsupportable in the circumstances….
- In the present case there is no basis to suggest that the present defendant personally did any act that would support a claim for aggravated or punitive damages. Insofar as the claim is based on an allegation of vicarious liability, there is nothing to show any complicity by the present defendant in the alleged wrongful acts. There are no facts pleaded to support a claim that the additional defendants were acting as his agent.”
[10] This is sufficient to dispose of the motion. However, in the alternative, I find that, in order for the defendants to be liable to the plaintiff for the actions of their lawyers, the plaintiff would be required to establish that those opposing lawyers owed her some legal duty. In striking such a claim under rule 21, the court in MacDonald v MCAP Service Corp. 2013 ONSC 4473 rejected such a premise. It held that a lawyer acting for one party does not owe a duty of care to the opposite party. That is a duty owed to the court. Complaints relating to an opposing solicitor’s unethical conduct or negligence do not provide a basis for a cause of action. (see paragraphs 15 and 16). The court stated in summary at paragraph 18:
“18. This claim meets the test for frivolous, and vexatious because the claim is grounded on the meritless suggestion that a lawyer who acts for a plaintiff in a proceeding is personally liable to the opposing party for the tort of abuse of process and for punitive and aggravated damages arising from the proceeding.”
[11] Where the plaintiff can have no claim against the defendants’ lawyer for that lawyer’s actions, the plaintiff has not provided any support for the proposition that the defendants can be vicariously liable to the plaintiff for those same actions of their lawyer.
[12] Lastly, and for the same reasons, I find the proposed reference to the Criminal Code is misplaced. Section 264 of the Code, on which the plaintiff relies, references acts committed by a person (“no person shall … repeatedly” follow, communicate, beset, watch or engage in threatening conduct.) The proposed amendments do not allege that the defendants did any of those things. They seek an award of punitive and aggravated damages against the defendants for the acts of their lawyers and the investigators whom those lawyers retained and whose conduct allegedly violated the Code.
There is Non-Compensable Prejudice
[13] Even if I accepted that the proposed amendments pleaded a tenable cause of action, granting the amendment at this stage would prejudice the defendants.
[14] This matter is set for a 15 day trial commencing 3 June 2024. Were the amendments permitted, it is probable that defence counsel would need to remove themselves from the record, given their actions are alleged to give rise to liability on the part of their clients. If counsel does not remove themselves, the defendants may well bring such a motion themselves or insist on new counsel.
[15] Because the allegations for which the plaintiff proposes to hold the defendants vicariously liable are based on the conduct of defence counsel and the investigators retained either by defence counsel or the insurer for the defendant, it is probable that the defendants’ counsel and the investigators will need to testify to respond. It is also probable that, in order to defend their client, defence counsel would be required to disclose instructions that would otherwise be privileged.
[16] It is also likely that plaintiff’s counsel would need to testify, as much of the correspondence central to the proposed amended pleading described as being from “the plaintiff” to the defendants was in fact from plaintiff’s counsel, and is not within the knowledge of the plaintiff. The following allegations point directly at the knowledge or actions of defence counsel or their investigators and actions of plaintiff’s counsel:
(a) The plaintiff is known by the defendants to suffer emotional impairments diagnosed by treating physicians and physicians chosen by the plaintiff’s insurance company (paragraph 16);
(b) The plaintiff informed the defendants that she had become aware that she was being followed and asked whether it was at the defendants’ request. She reminded them of her fragile mental state due to the accident. The defendants did not respond (paragraphs 18 and 19);
(c) Despite the plaintiff’s request, the defendants directed that additional surveillance be carried out and, further, failed to respond to the plaintiff’s inquiry about whether the surveillance was at their request (paragraphs 24, 26, 27, 29);
(d) The defendants failed to notify the surveillance company of the plaintiff’s awareness of prior surveillance and of the plaintiff’s request to stop surveillance (paragraph 31);
(e) The defendants did not respond for two years to the plaintiff’s inquiry about their surveillance. The delay in responding allowed the surveillance to continue, further intimidating the plaintiff (paragraphs 38 and 41);
(f) The defendants failed to advise their surveillance company of the overtness of their surveillance and the historical concerns and awareness of surveillance of the plaintiff (paragraph 39);
(g) The surveillance company would have taken the plaintiff’s historical concerns and awareness of surveillance into account when surveilling her, had they been advised of same (paragraph 40);
(h) The plaintiff seeks punitive damages against the defendants for their aggressive surveillance tactics (paragraph 42); and
(i) The defendants “through counsel and insurer” defending the claim has [sic] engaged in harassment and intimidation in order to harm the plaintiff, and have the plaintiff settle at a reduced value that does not properly reflect her injuries and impairments (paragraph 43).
[17] The factum references the conduct of defence counsel throughout. For instance, at paragraph 8 it is noted that “counsel for the defendants, Ms. Blair Nitchke has commenced surveillance on three separate occasions known to the plaintiff…. Prior to those rounds of surveillance being conducted, the magnitude of the plaintiff’s psychological impairments were enumerated to Ms. Blair Nitchke, counsel for the defendants… Ms. Nitchke did not respond …. The plaintiff continued to provide Ms. Nitchke with evidence of her fragile psychological state.”
[18] Were the pleading amendment permitted, it is likely that all parties would require new counsel as their lawyers would be required to testify concerning their conduct, their correspondence and their privileged instructions. For these reasons alone, the motion should be dismissed.
[19] Having reviewed each party’s costs outline and considering all the factors, including the defendants’ success on the motion, I find the sum of $10,000 to be a fair and reasonable sum for the losing party to expect to pay. The plaintiff shall pay the defendants the all-inclusive sum of $10,000 fixed on a partial indemnity basis within 30 days of this decision.
Associate Justice Jolley
Date: 3 October 2023