CITATION: O’Regan v. Harman and Romain, 2026 ONSC 4066
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: JOSEPH O’REGAN, Plaintiff
-and-
STEPHEN HARMAN and MICHAEL ROMAIN, Defendants
BEFORE: Justice Sylvia Corthorn
COUNSEL: Self-represented plaintiff Ian Chesney, for the moving party defendant, Stephen Harman Blaire W. Smockum, for the defendant, Michael Romain
HEARD: April 14, 2026 (By videoconference)
ENDORSEMENT
Introduction
1The defendant, Stephen Harman (“Harman”), brings a motion for an order striking the plaintiff’s claim against him, without leave to amend. Harman’s position is that it is “plain and obvious” the claim cannot succeed.
Background
2The plaintiff (“O’Regan”) was the owner of a condominium unit in a high rise building in Ottawa, Ontario (“the Unit”). The governing condominium corporation registered a condominium lien in the amount of $8,333 on title to the Unit. O’Regan refused to pay the condominium lien.
3In or about early 2022, O’Regan’s mortgagee refused to re-finance O’Regan’s mortgage unless the condominium lien was discharged from title to the Unit. O’Regan maintained his refusal to pay the amount owing on the condominium lien. The mortgagee took possession of the Unit in March 2022. Acting under power of sale proceedings, in the Spring of 2022 the mortgagee sold the Unit for $397,000.
4O’Regan commenced an action against the mortgagee, alleging an improvident sale of the Unit. O’Regan believes that, as of the date of the 2022 sale, the fair market value of the Unit was $546,000. The improvident sale action has not proceeded to trial; there has been no judicial determination of O’Regan’s claim in that action.
5Harman and Romain are both property appraisers. They were each retained by O’Regan to provide appraisals of the fair market value of the Unit for the purpose of the improvident sale action. The lowest fair market value at which either of the defendants appraised the Unit is $420,000. In the context of the improvident sale action, O’Regan chose not to rely on the appraisals prepared by Harman and Romain.
6O’Regan asks the court to find that he is entitled to damages from the appraisers in the amount of $126,000 (being the difference between $546,000 and $420,000). O’Regan also seeks punitive damages in an unspecified amount. Last, O’Regan asks the court to appoint an appraiser to provide an appraisal of the fair market value of the Unit, upon which he intends to rely in the improvident sale action.
7Harman brings his motion pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Harman asserts that he has an unanswerable defence to O’Regan’s claim: he is protected by the doctrine of witness immunity. In addition, Harman asserts that the claim against him is entirely speculative because O’Regan is unable to establish that he has suffered any losses for which he is entitled to damages. Last, Harman’s position is that the statement of claim falls squarely within the clearest of cases, with O’Regan unable to improve his claim or pleading.
8Harman asks the court to strike the claims against him, without leave to amend. For the reasons that follow, the relief requested on Harman’s motion is granted. The claims against Harman are struck, without leave to amend, and dismissed.
The Issues
9The following two issues are determined on the motion:
Is it plain and obvious that O’Regan cannot succeed in his claim against Harman?
If the answer to Issue No. 1 is “yes’, is O’Regan entitled to leave to amend the statement of claim?
10Before turning to the substantive issues, I will briefly address an evidentiary issue that was resolved at the outset of the hearing of the motion.
11Harman’s motion record consists of a notice of motion and a copy of the statement of claim. The motion record accords with the requirements of r. 21.01(2); it does not include any evidence. The responding record includes an affidavit from O’Regan. At the beginning of the hearing (a) Harman did not consent to O’Regan’s request for leave to file the affidavit; and (b) O’Regan withdrew his request in that regard. In accordance with r. 21.01(2), the motion is determined based solely on the statement of claim.
Issue No. 1 - Is it plain and obvious that O’Regan cannot succeed in his claim against Harman?
a) The Law
12Subrule 21.01(1)(b) provides that “A party may move before a judge […] (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.”
13In Tran v. University of Western Ontario, 2015 ONCA 295, at para. 16, Pepall J.A. cites the Court’s earlier decision in McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429. Citing para. 39 of McCreight, Pepall J.A. explains that on a “motion to strike: (1) all essential elements of a cause of action are to be pleaded; and (2) the pleading must be read generously with allowances for drafting deficiencies.”
14In Becker v. McMurter, 2015 ONSC 4207, 51 C.L.R. (4th) at para. 20, Ditomaso J. explains that the “plain and obvious” test can be met if the pleading suffers from any one or more of the following three flaws:
(a) a plaintiff pleads allegations that do not give rise to a recognized cause of action;
(b) a plaintiff fails to plead a necessary element of a recognized cause of action; or
(c) the allegations in the pleading are simply conjecture, assumptions or speculation unsupported by material facts, or where mere conclusions of law are asserted.
15In support of that explanation, Ditomaso J. cites Hunter v. Bravener et al., [2003] O.J. No. 1613 (C.A.), at paras. 3-5; leave to appeal denied [2003] S.C.C.A. No. 306.
16As to the level of generosity afforded the party whose pleading is the subject of a motion to strike, the “pleading must be read as generously as possible, erring on the side of permitting an arguable claim to proceed to trial”: Rausch v. Pickering (City), 2013 ONCA 740, 369 D.L.R. (4th) 691, at para. 34.
b) The Statement of Claim
17The action is brought pursuant to the Simplified Procedure in Rule 76. The statement of claim is 10 pages and includes 48 paragraphs. The claims against the defendant appraisers are based in negligence, negligent misrepresentation, breach of contract, and breach of the contractual duty of good faith.
18O’Regan seeks three types of relief. First, he requests “an award in tort for the amount of $126,000”. Second, O’Regan requests punitive damages, in an unspecified amount, based on an alleged actionable wrong in the form of breach of the contractual duty of good faith. Third, O’Regan requests an order for a court-appointed appraiser to provide “a legitimate true market appraisal” of the fair market value of the Unit at the date of the 2022 sale.
19O’Regan sets out the circumstances that led to him retaining the defendant appraisers. The allegations in paras. 7-10 of the statement of claim address O’Regan’s (a) pursuit of the improvident sale action; (b) search for appraisers to provide reports in support of his claim in that action; (c) decision not to rely on the appraisals received from the defendant appraisers; and (d) current challenges in obtaining evidence to support the claims made in the improvident sale action.
20It is clear from the statement of claim that there has been no judicial determination of the improvident sale action.
c) Harman’s Two Grounds on the Plain and Obvious Test
21Harman’s position is that the statement of claim satisfies the plain and obvious test for two reasons. First, Harman has an unanswerable defence to the claim (witness immunity). Second, O’Regan failed to plead a key element to his claim or the material facts required to support it (i.e., related to the damages he suffered); as a result, O’Regan is pursuing a speculative claim.
i) An Unanswerable Defence
22It is a longstanding and fundamental principle of this court “that witnesses and parties are entitled to absolute immunity from subsequent liability for their testimony in judicial proceedings since the proper administration of justice requires the full and free participation of witnesses unhindered by fear of retaliatory suits [citations omitted]”: Paul v. Sasso, 2016 ONSC 7488, at para. 16. The privilege of absolute immunity extends to both
the party’s own expert (see: Paul, at para. 17, and Due v. Collings, 2018 ONSC 4003, at para. 17); and
“documents properly used and regularly prepared for use in the proceedings [citations omitted]” (see: Paul, at para. 16).
23Regarding the latter bullet point, the decision of the Court of Appeal for Ontario in Fabian v. Marguiles (1985), 1985 CanLII 2063 (ON CA), 53 O.R. (2d) 380 is instructive. The Court addresses whether absolute privilege extends to a report prepared by a physician who ultimately testified at trial. In the second paragraph of their three-paragraph decision, the Court says, “the absolute privilege accorded to the evidence given by the respondent is extended to the report prepared by the respondent which formed the basis of his evidence.”
24In Fabian, the Court of Appeal for Ontario agreed with the decision of the judge at first instance, Labrosse J. (as he was then). The physician, whose evidence and report were the subject of the matter before the court, had been retained by a defendant, in a personal injury action, to conduct a medical examination of the plaintiff and prepare a report of that examination. The doctor’s report was prepared in the ordinary course of judicial proceedings. At p. 383, Labrosse J. concludes that “The absolute privilege extending to the oral evidence of the doctor would be rendered illusory if he could be sued for the same statements made in a report he is statutorily required to prepare in order to give his oral testimony.”
25For the purpose of the improvident sale action, O’Regan is required to serve copies of reports obtained from expert witnesses upon whose opinion evidence he will seek to rely at trial. O’Regan retained the defendants anticipating that he would rely on their respective opinion evidence at trial. He required a report from each of them. The reports prepared by the defendants in the matter before this court are analogous to the report prepared by the physician after conducting a medical examination of the plaintiff in Fabian.
26O’Regan relies on several causes of action: negligence, negligent misrepresentation, breach of contract, and breach of the contractual duty of good faith. It is important to note that the privilege of witness immunity “is not limited to defamation actions but extends to any action, however, framed [citations omitted]”: Paul, at para. 16.
27Regardless of the number of causes of action upon which O’Regan relies, the essence of his claim against Harman is in respect of the latter’s fulfilment of his obligations as an appraiser retained by O’Regan to provide an opinion as to the fair market value of the Unit. For example, in the first paragraph of the statement of claim, O’Regan alleges that the defendants were negligent in the fulfilment of their “obligations in provision of undervalued appraisals”. In paragraph 38 of the statement of claim, O’Regan alleges that Harman “breached his standard of care duty” because of the approach taken when providing the appraisal. In the same paragraph, and relying on the same alleged conduct, O’Regan alleges that Harman breached his contractual duty of good faith.
28Other allegations against the defendants include that they, “submitted misleading appraisals that can only be considered fraudulent with false intention to unduly divert and or deceived the Plaintiff’s anticipation of true market appraisals” (para. 32). In several paragraphs, O’Regan alleges that the defendants breached the standard of care they were required to meet (see, for example, paras. 33-38 of the statement of claim).
29The claim for punitive damages arising from an alleged breach of contractual duty of good faith is based on the same conduct upon which O’Regan bases the claims in negligence and negligent misrepresentation. O’Regan alleges that the breach of duty of contractual good faith constitutes an independent actionable wrong, as a result of which he is entitled to punitive damages. The claim based in breach of contractual duty of good faith does not, however, change the essence of O’Regan’s claim against Harman.
30In some of the case authorities provided to the court, the moving party defendant brought a motion for summary judgment; in others, including Due, the moving party defendant brought a motion pursuant to r. 21.01(1)(b). I am satisfied that Harman’s motion to strike is a cost-effective, efficient, and proportionate method of addressing the substance of O’Regan’s claims.
31It is plain and obvious that Harman has available to him the unanswerable defence of the privilege witness immunity. On this ground alone, Harman is entitled to an order striking O’Regan’s claims against him. In the event I am wrong in that regard, then it is necessary to consider Harman’s second ground – that the claim against him is speculative.
ii) The Plaintiff’s Claim is Speculative
32The allegations in the statement of claim set out the sale price for the Unit ($397,000); two appraisals obtained by the mortgagee in the context of the power of sale proceeding (both at $400,000); and O’Regan’s belief, including the basis for it, that a fair market value of the Unit at the date of the 2022 sale was $546,000. O’Regan does not include, and is unable to include, allegations regarding the outcome of the improvident sale action.
33Without a judicial determination of the improvident sale action, O’Regan is unable, in the matter now before the court, to establish, on a balance of probabilities, either that (a) the 2022 sale was improvident; or (b) he is entitled to damages arising from an improvident sale. Even if a finding is made in the improvident sale action that the 2022 sale of the Unit was improvident, that finding alone is not sufficient to support entitlement to an award of damages against Harman in the matter now before this court.
34For example, the trial judge in the improvident sale action might conclude that (a) the 2022 sale of the Unit was improvident, and (b) the fair market value for the Unit, as of the date of the sale, is between $397,000 and $420,000 or $450,000 (with the latter two amounts being the fair market value appraisals from the defendants). Such a finding would not support an award of damages against Harman in the matter now before this court.
35On a generous reading of the statement of claim, O’Regan’s claims for compensatory and punitive damages are wholly speculative. Based on the existing allegations, O’Regan is unable to establish that he is entitled to any damages from Harman. On this ground alone, Harman is entitled to an order striking O’Regan’s claims against him.
d) Summary – Issue No. 1
36The answer to the question posed as Issue No. 1 is “yes”: Harman is entitled to an order striking O’Regan’s claims against him.
Issue No. 2 - If the answer to Issue No. 1 is “yes’, is O’Regan entitled to leave to amend the statement of claim?
37Amendments to pleadings are governed by r. 26.01, which provides that “[o]n motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.” The significance of that mandatory language is addressed by the Court of Appeal for Ontario, in Mitchell v. Lewis, 2016 ONCA 903, 134 O.R. (3d) 524, at para. 21. L.B. Roberts J.A., writing for the Court therein explains that “[w]hile the court retains the discretion not to allow an amendment, the denial of leave to amend should only be made in the clearest of cases, when it is plain and obvious that no tenable cause of action is possible on the facts as alleged [citations omitted].”
38I agree with Harman that amendments, if made, to the statement of claim will not improve the pleading sufficiently to circumvent the privilege of witness immunity to which Harman is entitled. Also, I agree with Harman that unless and until a determination is made at trial in the improvident sale action, it is not possible for O’Regan to plead a critical element of his claims against Harman – specifically, the particulars of the damages suffered, if any.
39In Halpern v. Morris, 2016 ONSC 7855 (Div. Ct.), Nordheimer J. highlights the distinction between a claim against a witness for consequential damages versus the defence of a claim by the witness (for payment of services) – both on the basis of negligence in the provision of the services. At para. 32, Nordheimer J. says the following:
Based on the current state of the authorities in this country, I am prepared to accept that the weight of authority favours the conclusion that an expert witness enjoys immunity arising from his role as an expert witness, whether it is at the suit of the opposing party, or at the suit of his own client. That said, the extent of that immunity is far from clear. As Dunphy J. points out in Paul, it is one thing to hold than an expert witness cannot be sued for damages arising from her/his evidence and/or report. It is a different matter to conclude than expert witness cannot be held to account for the basis performance of her/his contractual duties.
40At para. 33, Nordheimer J. concludes that none of the justifications offered in support of expert witness immunity justify the result that an individual who is dissatisfied with the work done by an expert witness they hired would (a) not be able to sue for recovery of fees paid; or (b) rely on that dissatisfaction in defence of a claim, by the expert witness, for as yet unpaid fees.
41I make that point because, at paragraph 37 of the statement of claim, O’Regan alleges that “Under duress, the Plaintiff paid Mr. Harman’s exorbitant fee of $1,000, where typical respective appraisal fees are between $300 and $400”. Neither in his factum nor in oral submissions did O’Regan request leave to amend his statement of claim to include a claim related exclusively to his dissatisfaction with the amount of the fees paid. A claim related to the disputed fees, if pursued, would, in any event, fall within the jurisdiction of the Small Claims Court.
42In summary, I am satisfied that the statement of claim falls within the clearest of cases for which leave to amend should be denied.
Disposition
43O’Regan’s claims against Harman are struck, without leave to amend, and are dismissed.
Costs
44Pursuant to r. 57.03(1)(a), “[o]n the hearing of a contested motion, unless the court is satisfied that a different order would be more just, the court shall […] fix the costs of the motion and order them to be paid within 30 days”. In an exceptional case, the court may refer the costs of a motion for assessment: r. 57.03(1)(b).
45There is no reasons to refer costs of the motion to strike for an assessment. I will fix costs – determining the scale upon which they are to be paid and fixing the amount to be paid.
46Harman filed a costs outline for the motion to strike. In that document, Harman outlines costs on the partial indemnity scale totalling $9,730 and on the substantial indemnity scale totalling $14,366. In both his notice of motion and factum, Harman requests “costs of the motion”; he does not stipulate the scale on which he requests costs, if successful on the motion.
47O’Regan is a self-represented litigant, albeit an experienced self-represented litigant. I find nothing in O’Regan’s conduct on the motion to strike to support an award of costs on the substantial indemnity scale. Harman is entitled to his costs of the motion on the partial indemnity scale.
48The work on Harman’s behalf was shared between senior counsel (2007 Call) and a junior lawyer (2025 Call). Their respective partial indemnity hourly rates for work done in 2025 and in 2026 are reasonable. The amount of time docketed by each lawyer is reasonable. The disbursements are minimal – a court filing fee and an automated civil litigation fee.
49As the entirely successful party on the motion, Harman is entitled to his costs of the motion, on the partial indemnity scale and fixed in the amount of $9,730. O’Regan shall pay those costs within 30 days of the date of this endorsement.
Madam Justice Sylvia Corthorn
Released: July 13, 2026
CITATION: O’Regan v. Harman and Romain, 2026 ONSC 4066
COURT FILE NO.: CV-25-101566
DATE: 2026/07/13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RE: JOSEPH O’REGAN, Plaintiff
-and-
STEPHEN HARMAN and MICHAEL ROMAIN, Defendants
COUNSEL: Self-represented plaintiff Ian Chesney, for the moving party defendant, Stephen Harman Blaire W. Smockum, for the defendant, Michael Romain
ENDORSEMENT
Madam Justice Sylvia Corthorn
Released: July 13, 2026