Kleynhans et al. v. Zucker et al., (1997) 38 O.T.C. 302 (GD)

• Judge: Wilkins, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: September 15, 1997
• Jurisdiction: Ontario
• Citations: (1997), 38 O.T.C. 302 (GD)

Kleynhans v. Zucker (1997), 38 O.T.C. 302 (GD)

MLB headnote and full text

Temp. Cite: [1997] O.T.C. TBEd. OC.015

Denise Kleynhans, Steven Tiffin, Colleen Tiffin (Crooks) and Jennifer Holterman (plaintiffs) v. Symon Zucker, Danson, Zucker And Connelly (defendants)

(Court File No. 96-CU-105146)

Indexed As: Kleynhans et al. v. Zucker et al.

Ontario Court of Justice

General Division

Wilkins, J.

September 24, 1997.

Summary:

Davidson et al. retained Zuker, a lawyer, in respect to monies allegedly owed to them by Kleynhans et al. Zuker wrote a letter to Kleynhans et al. in which he stated that "you have been complicit in a fraud and a theft perpetrated against the above named" and that they were "involved in a massive fraud". Unless Kleynhans et al. paid $100 million U.S. within five days "all steps necessary" would be taken. Kleynhans et al. declined to pay the $100 million. Instead, they commenced an action against Zuker and his firm whereby each claimed, inter alia, damages of $500,000 for intentional infliction of mental and emotional suffering. Kleynhans et al. claimed that Zucker should reasonably have known that the contents of his letter were false and that he had sent it with the intention of causing severe mental and emotional suffering. Subsequently, Davidson et al. commenced an action against Kleynhans et al. for the recovery of the monies allegedly owed. Zucker's statement of defence claimed that the letter was protected by "absolute privilege as it was a related occasion representing preparatory steps taken with a view to judicial proceedings". Kleynhans et al. applied to have the defence of absolute privilege struck from Zucker's statement of defence on the ground that the doctrine of absolute privilege did not protect solicitors whose conduct was independently tortious. At the time of the application the process of production between the parties was not complete and no examination on discovery had been conducted.

The Ontario Court (General Division) declined to strike the defence on the ground that the application was premature. The decision was without prejudice to Kleynhans et al. making another application after the completion of production and discovery.

Evidence - Topic 4238

Witnesses - Privilege - Lawyer-client communications - Documents prepared in contemplation of litigation - See paragraphs 1 to 46.

Evidence - Topic 4242

Witnesses - Privilege - Lawyer-client communications - Privilege - Communications between lawyer and third party - See paragraphs 1 to 46.

Evidence - Topic 4245

Witnesses - Privilege - Lawyer-client communications - Privilege - Offers of settlement or settlement negotiations - See paragraphs 1 to 46.

Evidence - Topic 4252

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - Allegation of fraud - See paragraphs 1 to 46.

Torts - Topic 8710

Duty of care - Particular relationships - Claims for nervous shock and emotional suffering - Intentional infliction of - See paragraphs 1 to 46.

Cases Noticed:

Waxman (I.) & Sons Ltd. v. Texaco Canada Ltd. et al., [1968] 2 O.R. 452 (C.A.), refd to. [para. 12].

Abrams v. Grant (1978), 5 C.P.C. 308 (Ont. H.C.), refd to. [para. 12].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84; 42 D.L.R.(4th) 81; 9 R.F.L.(3d) 225, consd. [para. 20].

Geo. Cluthe Manufacturing Co. et al. v. ZTW Properties Inc. et al. (1995), 81 O.A.C. 141; 23 O.R.(3d) 370 (Div. Ct.), consd. [para. 23].

Lubarevich v. Nurgitz et al. (1996), 1 O.T.C. 360 (Gen. Div.), consd. [para. 23].

G.W.E. Consulting Group Ltd. v. Schwartz et al. (1990), 72 O.R.(2d) 33 (H.C.), refd to. [para. 23].

Dingwall v. Lax (1988), 63 O.R.(2d) 36 (H.C.), refd to. [para. 23].

Lincoln v. Daniels, [1962] 1 Q.B. 237 (C.A.), consd. [para. 24].

Watson v. M'Ewan, [1905] A.C. 480, refd to. [para. 24].

Business Computers International Ltd. v. Registrar of Companies and Alex Lawrie Factors, [1987] 3 All E.R. 465; [1987] B.C.L.C. 621 (Ch. D.), consd. [para. 31].

Ross v. Caunters, [1979] 3 All E.R. 580; [1979] 3 W.L.R. 605 (Ch. D.), consd. [para. 32].

Kandari (Al) v. Brown (J.R.) & Co., [1988] 1 All E.R. 833 (C.A.), consd. [para. 33].

Wilkinson v. Downton, [1897] 2 Q.B.D. 57, consd. [para. 39].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 21 [para. 39].

Counsel:

Ronald G. Chapman, for the plaintiffs;

Joyce Harris, for the defendants.

This application was heard on September 15, 1997, before Wilkins, J., of the Ontario Court (General Division), who released the following judgment on September 24, 1997.