D'Mello v. Law Society of Upper Canada et al., 2014 ONCA 912

• Judge: Weiler, Feldman and Benotto, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 09, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 912;(2014), 329 O.A.C. 64 (CA)

D'Mello v. LSUC (2014), 329 O.A.C. 64 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. DE.043

Roy D'Mello (plaintiff/appellant) v. The Law Society of Upper Canada and Stephen Alexander McClyment (defendants/respondents)

(C58892; 2014 ONCA 912)

Indexed As: D'Mello v. Law Society of Upper Canada et al.

Ontario Court of Appeal

Weiler, Feldman and Benotto, JJ.A.

December 22, 2014.

Summary:

Financial institutions filed complaints against a lawyer (D'Mello) relating to mortgage frauds by a company which D'Mello had agreed to represent. The Law Society of Upper Canada initiated discipline proceedings and assigned McClyment to investigate. During the course of the investigation, McClyment sent e-mails to two of the complainants. D'Mello asserted that the e-mails were defamatory and sued the Law Society and McClyment for damages. The Law Society and McClyment moved to dismiss the action, relying primarily on the defence of absolute privilege.

The Ontario Superior Court allowed the motion and ordered D'Mello to pay costs of $5,000. D'Mello appealed the dismissal of the action and the costs award.

The Ontario Court of Appeal dismissed the appeal.

Barristers and Solicitors - Topic 7663

Regulation - Liability of governing bodies - Immunity for acts done in good faith - Financial institutions filed complaints against a lawyer (D'Mello) relating to mortgage frauds by a company which D'Mello had agreed to represent - The Law Society of Upper Canada initiated discipline proceedings and assigned McClyment to investigate - During the course of the investigation, McClyment sent e-mails to two of the complainants - D'Mello asserted that the e-mails were defamatory and sued the Law Society and McClyment for damages - The Law Society and McClyment successfully moved to dismiss the action based on the defence of absolute privilege - D'Mello appealed, asserting that the common law defence of absolute privilege did not apply because s. 9 of the Law Society Act superseded the common law - He asserted that s. 9's purpose was to restrict the Law Society's right to defend itself in a defamation action by imposing a requirement that the Law Society had acted in good faith - The Law Society asserted that s. 9 did not oust or otherwise affect the defence of absolute privilege - The Ontario Court of Appeal stated that "... the position put forward by the Law Society and accepted by the motion judge is correct. It accords with the principle of statutory construction that legislation is presumed not to change the common law unless it clearly and expressly does so. In this case, the legislation supplements the common law both when regard is had to the wide variety of damages actions to which s. 9 applies and its specific application in a defamation action where the circumstances are such that the requirements for absolute privilege are not met. The application of the presumption harmonizes the common law and the legislation. Finally, and most important, the application of the presumption is consistent with the overarching goal of the legislation as a whole, namely, the protection of the public in a timely manner." - See paragraph 19.

Barristers and Solicitors - Topic 7665

Regulation - Liability of governing bodies - Respecting exercise of disciplinary function - [See Barristers and Solicitors - Topic 7663 ].

Barristers and Solicitors - Topic 7665

Regulation - Liability of governing bodies - Respecting exercise of disciplinary function - Financial institutions filed complaints against a lawyer (D'Mello) relating to mortgage frauds by a company which D'Mello had agreed to represent - The Law Society of Upper Canada initiated discipline proceedings and assigned McClyment to investigate - During the course of the investigation, McClyment sent e-mails to two of the complainants - D'Mello asserted that the e-mails were defamatory and sued the Law Society and McClyment for damages - The Law Society and McClyment successfully moved to dismiss the action based on the defence of absolute privilege - D'Mello appealed, asserting that the circumstances for absolute privilege did not exist because McClyment was giving information to the complainants as opposed to receiving information from a complainant - D'Mello asserted that McClyment breached the requirement of confidentiality (Law Society Act, s. 49.129(1)) and was thus acting outside the scope of his duties and without legal justification - The Ontario Court of Appeal rejected the assertion - Privilege extended to communications made by, as well as to, investigators - The communications from McClyment to the complainants were for the purpose of preparing evidence for discipline proceedings - McClyment was acting in his capacity as an investigator for the Law Society and was not acting outside the scope of his duties - Giving the information to the complainants was within the exception found in s. 49.12(2)(b) of the Act as being required in connection with a proceeding under the Act, and within s. 7(3)(d) of the Personal Information Protection and Electronic Documents Act (exceptions to the requirement that personal information only be collected, used or disclosed with the individual's consent) - The circumstances of the communications were protected by absolute privilege - See paragraphs 20 to 24.

Libel and Slander - Topic 2930

Defences - Absolute privilege - Communications with law society - [See Barristers and Solicitors - Topic 7663 and second Barristers and Solicitors - Topic 7665 ].

Practice - Topic 7029

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Novel or important point - Financial institutions filed complaints against a lawyer (D'Mello) relating to mortgage frauds by a company which D'Mello had agreed to represent - The Law Society of Upper Canada initiated discipline proceedings and assigned McClyment to investigate - During the course of the investigation, McClyment sent e-mails to two of the complainants - D'Mello asserted that the e-mails were defamatory and sued the Law Society and McClyment for damages - The Law Society and McClyment successfully moved to dismiss the action based on the defence of absolute privilege - The motions judge ordered D'Mello to pay $5,000 in costs - D'Mello appealed, asserting that the judge should not have awarded costs having regard to his findings that the case was complex, there was a paucity of judicial authority on the issue, and if McClyment had better chosen his words, the action would likely not have been brought - D'Mello also asserted that the obvious disparity between the respective resources of the parties further precluded a costs award against him - The Ontario Court of Appeal concluded that the judge properly took all the relevant factors into account and did not err in his award of costs - See paragraphs 25 and 26.

Practice - Topic 7029.8

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Situation of unsuccessful party - [See Practice - Topic 7029 ].

Trade Regulation - Topic 9444

Protection of personal information and electronic documents - Protection, collection or disclosure of personal information - Consent to collection or disclosure - [See second Barristers and Solicitors - Topic 7665 ].

Cases Noticed:

Gonder v. Gonder Estate (2010), 259 O.A.C. 295; 54 E.T.R.(3d) 193; 2010 ONCA 172, refd to. [para. 13].

Evans v. Gonder - see Gonder v. Gonder Estate.

Schut v. Magee et al. (2003), 184 B.C.A.C. 317; 302 W.A.C. 317; 15 B.C.L.R.(4th) 250; 2003 BCCA 417, agreed with [para. 14].

Dechant v. Law Society of Alberta (2001), 281 A.R. 1; 248 W.A.C. 1; 2001 ABCA 39, additional reasons (2001), 277 A.R. 333; 242 W.A.C. 333; 2001 ABCA 81, leave to appeal refused [2001] 3 S.C.R. vi; 283 N.R. 394; 299 A.R. 177; 266 W.A.C. 177; 2001 CarswellAlta 1211, refd to. [para. 14].

Teskey v. Toronto Transit Commission et al., [2003] O.T.C. 1125; 2003 CanLII 35190 (Sup. Ct.), refd to. [para. 20].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 20].

Taylor et al. v. Director of the Serious Fraud Office et al., [1999] 2 A.C. 177; 233 N.R. 172 (H.L.), refd to. [para. 21].

Hung v. Gardiner et al. (2003), 184 B.C.A.C. 4; 302 W.A.C. 4; 13 B.C.L.R.(4th) 298; 2003 BCCA 257, refd to. [para. 21].

Hamouth v. Edwards & Angell (2005), 210 B.C.A.C. 225; 348 W.A.C. 225; 2005 BCCA 172, refd to. [para. 21].

Statutes Noticed:

Law Society Act, R.S.O. 1990, c. L-8, sect. 9 [para. 11].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan on the Construction of Statutes (6th Ed. 2014), pp. 504, 538, 539 [para. 13].

Counsel:

Roy D'Mello, acting in person;

Brian MacLeod Rogers, for the respondents.

This appeal was heard on December 9, 2014, by Weiler, Feldman and Benotto, JJ.A., of the Ontario Court of Appeal. Weiler, J.A., released the following judgment for the court on December 22, 2014.