Ont. Court of Appeal upholds striking out of claim against defence counsel in personal injury case

In April 2023, the appellant brought a second action against the respondents, who were in the defence team for the first action. Specifically, the respondents were:

• defence counsel
• the investigators hired by defence counsel to conduct surveillance of the appellant
• the defendants’ medical expert, who did an independent medical examination and issued an opinion on the appellant’s injuries

The appellant claimed in the second action that the respondents’ conduct in the first action – including the lawyers’ steps taken for the defence, the investigators’ manner of conducting the surveillance, and the medical expert’s testimony in support of the defendants’ position – traumatized her. The appellant argued that this trauma led to health issues.

The respondents moved to strike. The judge struck out the appellant’s second claim without leave to amend. The judge found that the appellant was unsatisfied with the first judgment and thus brought the second action, which abused the court’s process. The judge awarded each set of respondents $7,000 in partial indemnity costs.

The appellant appealed the order striking out her second claim. She claimed that the judge incorrectly applied the “plain and obvious” test and erroneously found the respondents immune from suit.

The appellant claimed the judge was procedurally unfair when he denied her leave to amend and ruled on the motion’s merits without a complete record and before the filing of a defence. The appellant also requested permission to appeal the judge’s costs order.

Order striking out upheld

The Court of Appeal for Ontario dismissed the appeal and made the appellant pay appeal costs of $3,750 to defence counsel and $5,000 each to the investigators retained by counsel and the defendants’ medical expert. The appeal court saw no reason to interfere with the order as the judge adhered to the principles applicable to striking out pleadings.

The appeal court noted that this was not a summary judgment motion and that the judge did not need a full record or statements of defence as the record was complete. The appeal court added that it could see the defects influencing the judge’s decision to strike the pleading on the face of the statement of claim.

The appeal court ruled that the judge correctly found that the appellant was collaterally attacking and trying to re-litigate the decision in the first action, given that she failed to raise the issues presently alleged in the second action at trial or on appeal.

Next, the appeal court held that the judge correctly found that the appellant failed to establish her claim of intrusion upon seclusion because she waived any privacy interest in her medical records when she filed the first action.

The appeal court then determined that the judge correctly found that the appellant failed to establish her claims against the lawyers, investigators, and expert witness for the defence. The appeal court noted that case law established that witnesses, lawyers, and their agents enjoyed broad immunity from suit.

The appeal court noted that this immunity covered counsel acting for their clients since they generally owed no duty of care or fiduciary duty to the opposing party. The appeal court said that the appellant’s claims in this case were not exceptional such that they were beyond the coverage of the respondents’ immunities.

The appeal court saw no error in the judge’s refusal to grant the appellant leave to amend her claim or the judge’s determination that amendments could not cure the defects in the appellant’s claim considering the reasons the judge struck out the claim.

Lastly, the appeal court saw no reason to interfere with the judge’s costs award. The appeal court concluded that the judge made a reasonable, fair, and measured decision to award $7,000 in partial indemnity costs for each group of respondents.