The couple accused one of the firm's lawyers of misconduct while handling their opponent's defence
The Ontario Court of Appeal is allowing an Ontario couple to amend their lawsuit to pursue a malicious prosecution claim against McCague Borlack LLP but warned that its decision should offer “no comfort that the amended statement of claim will survive another pleadings motion by the respondents, or that his claim is destined for success.”
Monday’s unanimous decision “opens the door a crack to allow Mr. Curtis only to pursue further action on a very limited basis,” Justice Peter Lauwers wrote.
Justices Benjamin Zarnett and Renee Pomerance concurred.
The dispute stemmed from Gary Curtis and Tanya Rebello's lawsuit against security company Paragon Security and numerous other defendants, including individuals, real estate brokerages, and property management companies. Eric Turkienicz, a partner at McCague Borlack, represented Paragon Security. The lawsuit was dismissed in January.
The couple brought another lawsuit against McCague Borlack, Turkienicz, and his wife, alleging that in the prior action, Turkienicz had deliberately filed an inaccurate affidavit by a Paragon employee and failed to disclose false reports another employee made about Curtis to Paragon and the Toronto Police Service. This conduct resulted in the couple suffering “significant damages and losses to date,” they said.
The OCA noted that Curtis and Rebello included Turkienicz’s wife in the lawsuit to prevent him from transferring his assets to her if he was ordered to pay damages.
A motion judge struck the couple’s suit without leave to amend, dismissing the claim against Turkienicz’s wife and allegations related to his conduct as counsel for other clients.
The OCA agreed with the motion judge. Lauwers wrote that the latter allegations were “barred by absolute privilege,” the common law doctrine that bans claims based on communications during, in furtherance of, and incidental to court proceedings. The OCA noted that “the policy basis for the doctrine [of absolute privilege] is the protection of vigorous and undistracted advocacy, on which the adversarial system turns.”
However, Lauwers said the motion judge erred when he barred Curtis and Rebello from amending one aspect of their statement of claim.
While Turkienicz “plainly” did not initiate prosecution against Curtis, and the allegations in Curtis’ statement of claim “are not presently sufficient to ground [a malicious prosecution] claim,” the court of appeal cannot determine in the context of a motion to strike “that Mr. Curtis’s possible malicious prosecution claim against Mr. Turkienicz would be doomed to fail.”
The OCA added that “there is enough of a factual basis in this statement of claim,” considering another malicious prosecution lawsuit Curtis filed in 2022 against Paragon and some of the other defendants in his first lawsuit, “to justify granting him leave to amend.”
The OCA said that while they agreed with the motion judge’s decision to “prevent abuse of the court’s process by prohibiting the appellants from bringing further proceedings against the respondents without leave of the court,” Curtis and Rebello should be allowed to pursue a malicious prosecution claim if they want.
However, the court warned the appellants that there was no guarantee that an amended claim would succeed.
Kestenberg Litigation co-founder Michael Kestenberg, who represents McCague Borlack, Turkienicz, and his wife, declined to comment on Monday, citing a policy of not commenting on ongoing court matters.
The appellants could not be reached for comment.
