Frank v. Legate et al., 2015 ONCA 631

• Judge: Lauwers, Hourigan and Pardu, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Thursday March 05, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 631;(2015), 339 O.A.C. 359 (CA)

Frank v. Legate (2015), 339 O.A.C. 359 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. SE.012

Cathy Frank (plaintiff/appellant) v. Barbara Legate, Joni Dobson, Keith Finley and Legate & Associates LLP (defendants/respondents)

(C59283; 2015 ONCA 631)

Indexed As: Frank v. Legate et al.

Ontario Court of Appeal

Lauwers, Hourigan and Pardu, JJ.A.

September 18, 2015.

Summary:

The plaintiff appealed an order striking her statement of claim on the ground that it did not disclose a reasonable cause of action.

The Ontario Court of Appeal dismissed the appeal.

Courts - Topic 10

Stare decisis - Authority of judicial decisions - General principles - What constitutes obiter dictum - The plaintiff physician sued lawyers representing her former patients, alleging, inter alia, defamation - A motion judge struck the statement of claim on the ground that it did not disclose a reasonable cause of action - The judge, over the defendants' objection, opined on whether the proposed amended statement of claim remedied the defects in the struck statement of claim - He did not order any relief with respect to the amended statement of claim and did not make any order regarding whether the plaintiff should be granted leave to amend her claim - The plaintiff appealed - The Ontario Court of Appeal stated that since the plaintiff had not sought leave to amend her claim or issue the proposed amended statement of claim, and given that the motion judge did not order any relief with respect to it, his comments had no legal effect - However, the judge's conclusion that two of the allegedly defamatory statements in the proposed amended statement of claim were incapable of bearing a defamatory meaning despite the fact that they "could be interpreted in one way as commenting on the merits of the case and of being defamatory", appeared to be an error of law - Where the range of possible meanings for a statement included one that was defamatory, it was not a clear case enabling the pleading to be struck - In any event, the judge's statements were clearly obiter and had no impact on the final outcome of the motion - See paragraphs 53 to 55.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process - The plaintiff physician sued lawyers representing her former patients, alleging, inter alia, the torts of champerty and maintenance - A motion judge struck the statement of claim on the ground that it did not disclose a reasonable cause of action - The plaintiff appealed - The Ontario Court of Appeal disagreed with the motion judge's conclusion that the pleading was deficient because it did not specifically allege that the defendants improperly stirred up litigation that would not otherwise have been pursued or that they brought baseless claims as a form of intimidation - Such an explicit plea was unnecessary as it was possible to ascertain, with a liberal consideration of the pleading, that the defendants were alleged to have encouraged litigation with improper motives - However, the judge did not err in striking the claim - First, champerty required the maintainer to share in the profits of the litigation - Damages could not be awarded in the complaints against the plaintiff that had been made to the College of Physicians and Surgeons of Ontario - Consequently, there were no profits to share - The court was unaware of any case law where a maintenance claim had been made regarding complaints to a regulatory body - Second, the claim was premature since none of the underlying actions or complaints had been concluded at the time that the claim was issued - There could be no champerty or maintenance if the maintainer had a justifying motive or excuse - Justification or excuse was to be found in a suit's righteousness - The proof of a suit's righteousness was its success - It followed that the lawfulness of a defendant's position in maintaining litigation could only be determined once the litigation was concluded - Where the underlying action or defence was a valid and legitimate use of the court system, there could be no damage based on those causes of action - The premature use of champerty and maintenance was abusive to the administration of justice because it served to obstruct the prosecution of legitimate claims and defeat the assertion of valid defence - This was contrary to the public policy rationale for the torts - See paragraphs 63 to 75.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process - The plaintiff physician sued lawyers representing her former patients - A motion judge struck the statement of claim on the ground that it did not disclose a reasonable cause of action - The plaintiff appealed - The Ontario Court of Appeal held that even if the statement claim had properly pleaded tenable causes of action, it should have been struck as an abuse of process - It was a collateral attack on the civil lawsuits against the plaintiff and the complaints to the College of Physicians and Surgeons of Ontario - It appeared to be designed to frustrate those processes and deny the plaintiff's patients redress before the courts and the College - The court set out its reasons for reaching that conclusion - See paragraphs 88 to 94.

Damages - Topic 1330

Exemplary or punitive damages - Pleading - The plaintiff physician sued lawyers representing her former patients, claiming inter alia, punitive damages - A motion judge, in striking the statement of claim, concluded that the claim for punitive damages was pleaded in a conclusory manner with insufficient particulars - The plaintiff appealed, asserting that the judge erred by relying on a case that involved a breach of contract - The Ontario Court of Appeal dismissed the appeal - The judge cited the case for the general proposition that claims for punitive damages had to be pleaded with some degree of particularity - The fact that case involved a breach of contract did not make it distinguishable on this uncontroversial legal point - The wording of the claim for punitive damages here was pure boilerplate and contrary to the admonition in Whiten v. Pilot Insurance Co. et al. (2002, SCC) that claims for punitive damages had to be pleaded with particularity and that boilerplate language was conclusory rather than explanatory - It was insufficient to simply reference the "aforesaid conduct" described in the remainder of the pleadings to support a claim for punitive damages - See paragraphs 85 and 87.

Evidence - Topic 4241

Witnesses - Privilege - Lawyer-client communications - Privilege - General - The plaintiff physician sued lawyers representing her former patients, alleging, inter alia, intentional interference with economic relations - The plaintiff asserted that the defendants improperly and maliciously intended to interfere with her practice and ensure that she could not work - She relied on the fact that the defendants commenced at least 58 civil actions against her - She pleaded that the defendants solicited third parties and made various misrepresentations to induce them to commence unmeritorious civil actions and complaints to the College of Physicians and Surgeons of Ontario regarding her - A motion judge struck the statement of claim on the basis that it did not disclose a cause of action - The judge held that the allegations of economic interference were unspecified and were inconsistent with the narrow definition of the tort - The judge further held that to the extent that the pleadings relied on confidential communications between the defendants and their clients, the plaintiff relied on inadmissible facts - The plaintiff appealed - The Ontario Court of Appeal agreed with the motion judge that the claim was not pleaded properly - First, the plea was equivocal, as it stated that the defendants' intention was to injure or the actions were directed against the plaintiff - It was not enough to plead that the defendants' actions were directed at the plaintiff - They had to have intended to injure her - Second, the unlawful means alleged were not clear - Third, and in any event, the court agreed with the judge's finding that to understand the nature of the misrepresentations and whether the defendants' clients relied upon them, the plaintiff would have had to lead evidence of the privileged communications between the defendants and their clients - Consequently, the claim was properly struck as it relied on inadmissible evidence - See paragraphs 76 to 83.

Libel and Slander - Topic 644

The statement - What constitutes defamatory statements - General principles - Disparagement of reputation - The plaintiff physician sued lawyers representing her former patients, alleging, inter alia, defamation - A motion judge dismissed the statement of claim as disclosing no cause of action - The plaintiff appealed - The Ontario Court of Appeal dismissed the appeal - The motion judge correctly concluded that the seven impugned statements in the statement of claim were clearly incapable of bearing a defamatory meaning - Five of the statements were purely informational and did not comment on the merits of the ongoing litigation - The comments were neutral in their description of the plaintiff - References to the numerous women who had come forward were supported by the plaintiff's own pleadings, which indicated that 58 actions had been commenced against her - No reasonable person, who was taken to have understood the difference between allegations and proof of guilt, could interpret the statements in the manner suggested by the plaintiff (as suggestive of her being negligent and/or incompetent as a physician) - The plaintiff effectively sought to prohibit law firms from describing allegations that formed the basis of potential or ongoing claims - If that type of statement amounted to defamation, no law firm could ever solicit clients because they could not provide the necessary information for people to determine if they should consult a lawyer about a potential claim - One of the impugned statements, which described the pursuit of a public review process rather than a private review process before the College of Physicians and Surgeons of Ontario, did not even mention the plaintiff - Rather, it simply referred to the defendants' preferred course of action - See paragraphs 39 to 46.

Libel and Slander - Topic 644

The statement - What constitutes defamatory statements - General principles - Disparagement of reputation - The plaintiff physician sued lawyers representing her former patients, alleging, inter alia, defamation - A motion judge dismissed the statement of claim as disclosing no cause of action - The plaintiff appealed - The statement of claim had set out the following allegedly defamatory statement: "... [She] passed all of the exams but when [she] went out to practice, there was a problem [sentence 1] ... the unfortunate consequence of that, we allege, is that children have been born with disabilities that they wouldn't have otherwise had [sentence 2]." - The Ontario Court of Appeal rejected the assertion - The plaintiff's pleading and factum suggested that the statement was one sentence - In fact, it was a combination of portions of two sentences and it omitted a number of other sentences that were found in between - Allegedly defamatory words had to read in context - Reading impugned comments in isolation was unfair and was of no assistance to the court - That problem was exacerbated here - Sentence 1 was a misquote - When it was corrected and read in context, it was clear that it was a general comment about why the College of Physicians and Surgeons of Ontario might impose restrictions on a physician's practice - To the extent that it could be taken as referring to the plaintiff, it was a purely factual statement about the restrictions imposed on her medical licence by the College - The words "of that" in the second sentence did not appear in the original quote - Although not pleaded, the plaintiff also now took issue with the first part of sentence 2 and invited the court to parse the sentence - Leaving aside the fact that this had not been pleaded, the statement could not be interpreted as defamatory - A reasonable person who read the entirety of the sentence would understand that it was merely describing the nature of the allegation against the plaintiff - See paragraphs 47 to 51.

Libel and Slander - Topic 684

The statement - What constitutes defamatory statements - Libel - What constitutes a defamatory statement - [See both Libel and Slander - Topic 644].

Libel and Slander - Topic 6128

Practice - Pleadings - Statement of claim - Defamation - [See Courts - Topic 10].

Libel and Slander - Topic 6128

Practice - Pleadings - Statement of claim - Defamation - The plaintiff physician sued lawyers representing her former patients, alleging, inter alia, defamation - A motion judge dismissed the statement of claim as disclosing no cause of action - The plaintiff appealed - The Ontario Court of Appeal noted that the statement of claim, in addition to setting out seven allegedly defamatory statements, had made various general references to false and defamatory statements - Those latter statements were not detailed or identified in the pleading - To the extent that they were different from the seven statements, they could not support a defamation claim because the plaintiff had failed to plead the exact statements complained of, and the details of who made them, when they were made and to whom - See paragraph 52.

Libel and Slander - Topic 6224

Practice - Particulars - Of defamatory words - [See second Libel and Slander - Topic 6128].

Medicine - Topic 2118.2

Discipline for professional misconduct - Evidence - Use in civil proceedings - The plaintiff physician sued lawyers representing her former patients, alleging, inter alia, malicious prosecution - A motion judge struck the statement of claim on the basis that it did not disclose a cause of action - The plaintiff appealed - The Ontario Court of Appeal dismissed the appeal on three grounds - First, the statement of claim did not contain a definite statement that the proceedings had terminated in favour of the plaintiff - Second, the crucial element of malice was not properly pleaded - With respect to complaints that had been made to the College of Physicians and Surgeons of Ontario, it was pleaded only as one potential, alternative motivation - Finally, the effect of s. 36(3) of the Regulated Health Professions Act was that although reference to a complaint to the College having been made could be proven at trial, nothing from the record of a complaint was admissible in a civil action, including an action for malicious prosecution - The practical result was that actions for malicious prosecutions based on complaints to the College were effectively barred - See paragraphs 56 to 62.

Practice - Topic 1458

Pleadings - Statement of claim - Necessity of claiming damages or relief - Punitive damages - [See Damages - Topic 1330].

Practice - Topic 1952

Pleadings - Particulars - Particulars in specific proceedings - Defamation action - [See second Libel and Slander - Topic 6128].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Courts - Topic 10, first Courts - Topic 2015, Evidence - Topic 4241, both Libel and Slander - Topic 644, second Libel and Slander - Topic 6128 and Medicine - Topic 2118.2].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The plaintiff physician sued lawyers representing her former patients, alleging, inter alia, intentional infliction of mental distress - A motion judge struck the statement of claim on the basis that it did not disclose a cause of action - The judge found that the brief reference to the intentional infliction of mental distress was so vague that the defendants would have no idea what conduct was being alleged against them - There were no specified allegations in the plaintiff's pleadings - The Ontario Court of Appeal affirmed the decision - See paragraph 84.

Practice - Topic 2233

Pleadings - Striking out pleadings - Grounds - Privilege or immunity - [See Medicine - Topic 2118.2].

Practice - Topic 2235

Pleadings - Striking out pleadings - Grounds - Evidence - [See first Courts - Topic 2015].

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - [See second Courts - Topic 2015].

Practice - Topic 2239.4

Pleadings - Striking out pleadings - Grounds - Abuse of process - Collateral attack on administrative decision - [See second Courts - Topic 2015].

Practice - Topic 2248

Pleadings - Striking out pleadings - Grounds - Bars - Application premature - [See first Courts - Topic 2015].

Torts - Topic 5023

Interference with economic relations - Elements of liability - Use of unlawful means - [See second Practice - Topic 2230].

Torts - Topic 5024

Interference with economic relations - Elements of liability - Malice or intent to injure - [See second Practice - Topic 2230].

Torts - Topic 5248

Interference with economic relations - Interference with business relations - Pleadings - [See second Practice - Topic 2230].

Torts - Topic 6154

Abuse of legal procedure - Malicious prosecution - Malice - General - [See Medicine - Topic 2118.2].

Torts - Topic 6165

Abuse of legal procedure - Malicious prosecution - Favourable termination of proceedings - [See Medicine - Topic 2118.2].

Torts - Topic 6167

Abuse of legal procedure - Malicious prosecution - Practice - [See Medicine - Topic 2118.2].

Torts - Topic 6280

Abuse of legal procedure - Maintenance and champerty - General - [See first Courts - Topic 2015].

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 35].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 36].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Guergis v. Novak et al. (2013), 308 O.A.C. 96; 116 O.R.(3d) 280; 2013 ONCA 449, refd to. [para. 36].

McCreight et al. v. Canada (Attorney General) et al. (2013), 308 O.A.C. 128; 116 O.R.(3d) 429; 2013 ONCA 483, refd to. [para. 36].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 36].

Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 39].

Miguna v. Toronto Police Services Board, [2004] O.J. No. 2455 (Sup. Ct.), affd. [2005] O.J. No. 107 (C.A.), refd to. [para. 40].

Mantini v. Smith Lyons LLP et al. (2003), 171 O.A.C. 375; 64 O.R.(3d) 516 (C.A.), leave to appeal dismissed [2003] S.C.C.A. No. 344, refd to. [para. 48].

Khan v. Canada (Attorney General), [2009] O.T.C. Uned. 385 (Sup. Ct.), affd. [2009] O.A.C. Uned. 495; 2009 ONCA 737, leave to appeal refused (2010), 407 N.R. 393; 271 O.A.C. 398 (S.C.C.), refd to. [para. 52].

Kvello et al. v. Miazga et al., [2009] 3 S.C.R. 339; 395 N.R. 115; 337 Sask.R. 260; 464 W.A.C. 260; 2009 SCC 51, refd to. [para. 56].

Stoffman v. Ontario Veterinary Association (1990), 46 O.A.C. 232; 73 O.R.(2d) 737 (Div. Ct.), refd to. [para. 57].

Conroy v. College of Physicians and Surgeons (Ont.), [2011] O.T.C. Uned. 324; 329 D.L.R.(4th) 689; 2011 ONSC 324, affd. [2011] O.A.C. Uned. 477; 2011 ONCA 517, leave to appeal refused (2012), 432 N.R. 388; 294 O.A.C. 396 (S.C.C.), refd to. [para. 61].

Montgomery v. Seiden, 2012 ONSC 6235, refd to. [para. 61].

Forget v. Sutherland (2000), 134 O.A.C. 117; 188 D.L.R.(4th) 296 (C.A.) leave to appeal refused (2001), 271 N.R. 193; 149 O.A.C. 393 (S.C.C.), refd to. [para. 62].

McIntyre Estate v. Ontario (Attorney General) (2002), 164 O.A.C. 37; 61 O.R.(3d) 257 (C.A.), refd to. [para. 64].

Lorch et al. v. McHale, [2008] O.T.C. Uned. E26; 92 O.R.(3d) 305 (Sup. Ct.), affd. [2009] O.A.C. Uned. 96; 2009 ONCA 161, refd to. [para. 70].

Oldford v. Canadian Broadcasting Corp. et al. (2004), 223 N.S.R.(2d) 380; 705 A.P.R. 380; 2004 NSSC 105, agreed with [para. 71].

Neville v. London Newspapers Ltd., [1919] A.C. 368 (H.L.), refd to. [para. 72].

Bram Enterprises Ltd. et al. v. A.I. Enterprises Ltd. et al., [2014] 1 S.C.R. 177; 453 N.R. 273; 416 N.B.R.(2d) 1; 1079 A.P.R. 1; 2014 SCC 12, refd to. [para. 78].

Research Capital Corp. v. Skyservice Airlines Inc. et al., [2008] O.T.C. Uned. C92 (Sup. Ct.), refd to. [para. 85].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 86].

Statutes Noticed:

Regulated Health Professions Act, S.O. 1991, c. 18, sect. 36(3) [para. 60].

Counsel:

Nathaniel Erskine-Smith, for the appellant;

Paul Michell, for the respondents.

This appeal was heard on March 5, 2015, by Lauwers, Hourigan and Pardu, JJ.A., of the Ontario Court of Appeal. Hourigan, J.A., released the following judgment for the court on September 18, 2015.