The court did, however, grant, the plaintiffs leave to amend their statement of claim to pursue a malicious prosecution claim against the lawyer, who acted on behalf of a party adverse in interest to the plaintiffs in another action.
In Curtis v. McCague Borlack LLP, 2024 ONCA 729, released on Oct. 7, a bench of Justices Peter Lauwers, Benjamin Zarnett and Renee Pomerance rejected arguments that the purpose of the doctrine of absolute privilege was to provide counsel with immunity only from defamation actions.
“As we see it, although the contours of the doctrine are not fixed … it plainly applies beyond defamation,” the bench wrote.
The respondent, Eric Turkienicz, a lawyer at the respondent law firm McCague Borlack LLP, acted as counsel for a party adverse in interest to the appellants, Gary Curtis and Tanya Rebello in a lawsuit.
Rebello had sued a condominium corporation, its property manager, the security company hired by the property manager and various security guards alleging that they had worked with the Toronto Police Service to harass and surveil her and have her arrested for a crime she did not commit.
Curtis initiated a separate action to sue some of the same parties to the Rebello action for malicious prosecution and other causes of action. Curtis did not name Turkienicz as a defendant in his action.
Separately, Curtis and Rebello brought an action against Turkienicz, his law firm and his wife, the respondent, Michelle Turkienicz, over allegations that he knowingly allowed false statements to be made in an affidavit for the purpose of harming the appellants.
The appellants named Michelle Turkienicz even though she has no association with the law firm. They included her only because she jointly owns assets with Eric Turkienicz and wanted to prevent him from transferring his assets to her wife to avoid judgment.
The respondents brought a motion to strike the statement of claim as disclosing no reasonable cause of action.
In Curtis v. McCague Borlack LLP, 2023 ONSC 6213, The Ontario Superior Court struck the appellants’ statement of claim without leave to amend.
The motion judge held that the claim against Michelle Turkienicz should be struck, noting that the fact that spouses hold joint title to assets cannot, by itself, form the basis of a claim against a spouse who is in no way otherwise involved in the allegations on which the action is based.
The motion judge also struck the claims against Eric Turkienicz and McCague Borlack LLP, finding that the claim in relation to Turkienicz’s conduct as counsel for other clients in the underlying action was barred by absolute privilege.
Curtis and Rebello appealed the decision.
The bench noted that the doctrine of absolute privilege is “deeply rooted” in Canadian common law.
“The policy basis for the doctrine is the protection of vigorous and undistracted advocacy, on which the adversarial system turns,” the court observed.
The bench cited Hamouth v. Edwards & Angell, 2005 BCCA 172, in which the B.C. Court of Appeal held that granting absolute privilege to lawyers when they act in the course of their duties to their clients frees them from fear that they will be sued if what they say on behalf of a client is found not to be true.
The appeal court held that there was no basis to conclude that an amendment could salvage the claim of the appellant in relation to Turkienicz’s conduct as counsel for other clients in the underlying action.
The panel did, however, find that the motion judge erred in refusing the appellants leave to amend their claim against Turkienicz and McCague Borlack in relation to the tort of malicious prosecution.
“The usual practice is to grant leave to amend, as many authorities confirm,” the bench wrote.
The court also cited Nelles v. Ontario, [1989] 2 S.C.R. 170, in which the Supreme Court of Canada noted that the existence of absolute immunity is a threat to the individual rights of citizens who have been wrongly and maliciously prosecuted.
The court noted that a malicious prosecution has four necessary elements, including that the proceedings must have been initiated by the defendant and that it must have terminated in favour of the plaintiff.
The bench noted that even though Turkienicz had not initiated the appellants’ prosecution, the court could not on a motion to strike determine whether the appellants’ claim against Turkienicz would be doomed to fail based on this consideration.
The court held that there was enough of a factual basis in the appellants’ statement of claim, in light of Curtis’s other action, to justify granting him leave to amend.
The bench revised the motion judge’s order precluding Curtis from bringing any further proceedings against the respondents in order to permit him to amend the statement of claim to pursue only a malicious prosecution cause of action.
Counsel for the respondents was Michael Kestenberg of Kestenberg Litigation LLP. He declined to comment.
Law360 Canada was unable to reach Curtis and Rebello, who were self-represented, for comment.
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