J.L., PLAINTIFF - v. -, 2023 SKKB 253

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 253 Date: 2023 11 27 File No.: KBG-RG-02511-2022 Judicial Centre: Regina BETWEEN: J.L., PLAINTIFF - and - SHAUNA SHEWCHUK, OMOBEN LAW OFFICE PROF CORP and NAIDU LEGAL, DEFENDANTS Counsel: J.L. on his own behalf Stephen D. McLellan for the defendants ___________________________________________________________________________ FIAT POPESCUL C.J.K.B. November 27, 2023 ___________________________________________________________________________ I.

INTRODUCTION [ 1 ] This is an application by Shauna Shewchuk, Omoben Law Office Prof Corp [Omoben] and Naidu Legal [Naidu], collectively the [Defendants], to strike out the statement of claim [claim] of J.L. [Plaintiff] pursuant to Rule 7-9(2)(

a) of The King’s Bench Rules on the basis that it does not disclose a reasonable cause of action. [ 2 ] The Defendants’ application also sought to strike the claim pursuant to Rule 7-9(2)(

b) on the basis that it is “scandalous, frivolous or vexatious”, but that aspect of the application was abandoned by the Defendants during the oral argument. II. THE LAW [ 3 ] The Defendants rely upon Rule 7-9, the relevant portions of which read as follows:

7-9(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of thefollowing: (

a) that all or any part of a pleading or other document be struck out; ...

(2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: (

a) discloses no reasonable claim ...

(3) No evidence is admissible on an application pursuant to clause 2(a). [4] The purpose of the Rule is obvious: to save the court and the parties cost, time and inconvenience by weedingout claims (or portions of claims) where there is no reasonable chance of success.

As stated by McLachlin C.J. in R v Imperial TobaccoCanada Ltd., 2011 SCC 42 at paras 19 and 21, [2011] 3 SCR 45: 19 The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effectiveand fair litigation. ... 21 ... [but] is a tool that must be used with care. ... [5] The applicable test for applications to strike a claim on the basis that it discloses no reasonable claim is wellsettled in this province.

See Sagon v Royal Bank of Canada (1992), (SK CA), 105 Sask R 133 (CA); Milgaard vSaskatchewan (1994), (SK CA), 118 DLR (4th) 653 (Sask CA); Saskatchewan Power Corp. v Swift Current (City),2007 SKCA 27, 293 Sask R 6; Battiste v TD Canada Trust, 2011 SKQB 167, 372 Sask R 254; and James Mann Family Trust v YaraPhosyn Ltd., 2011 SKCA 146, 385 Sask R 59. [6] Although the above referenced decisions were all decided in relation to former Rule 173(a), the wording ofthat provision is so similar to Rule 7-9(2)(

a) that the jurisprudence respecting the old rule is equally applicable to the new rule. SeeShinkaruk v Neufeld Building Movers Ltd., 2014 SKQB 12 at para 8, 432 Sask R 255; and Venture Construction Inc. v Saskatchewan(Ministry of Highway and Infrastructure), 2015 SKQB 70 at para 7, 470 Sask R 7. [7] The principles arising from the jurisprudence have been summarized many times:

(1) The claim should be struck where, assuming the plaintiff proves everything alleged in the claim, there is no reasonable chance ofsuccess.

(2) The jurisdiction to strike a claim should only be exercised in plain and obvious cases where the matter is beyond doubt.

(3) The court may consider only the claim, particulars furnished pursuant to a demand and any document referred to in the claim uponwhich the plaintiff must rely to establish its case.

(4) The court can strike all, or a portion of the claim.

(5) The Plaintiff must state sufficient facts to establish the requisite legal elements for a cause of action. See Wilson v Saskatchewan Water Security Agency, 2023 SKCA 16 at para 17, 478 DLR (4th) 170. III. BACKGROUND [8] The Plaintiff and T.T. are the parents of a young child. The two separated and issues arose with respect to theparenting and decision-making of the child. T.T. was represented by Ms. Shewchuk, who is a licensed lawyer. According to thePlaintiff’s claim, Ms. Shewchuk practised law with Omoben “until December 22nd, 2021” and then “transferred to Naidu Legal.

Fromthere she went to Shewchuk Law on January 25th, 2022”. The Plaintiff was self-represented. [9] There were a number of preliminary applications on the family law matter, respecting a variety of issues andultimately a trial took place before Justice Schatz, who rendered a decision on February 8, 2023. See J.L. v T.T., 2023 SKKB 35. [10] On October 26, 2022, the Plaintiff commenced the claim against Ms. Shewchuk, Naidu (a sole proprietorship)and Omoben (a corporation). [11] The essence of the claim against Ms. Shewchuk related to the way in which Ms. Shewchuk represented herclient.

The Plaintiff alleges, among other things, that Ms. Shewchuk: - demonstrated legal malpractice - wilfully prepared false accusations - offered false evidence - misstated facts - relied on a false or deceptive action

- knowingly asserted as a true fact when its truth cannot be supported by the evidence - was negligent - was unethical - bullied and coerced her client - was defamatory towards the Plaintiff - was not courteous and civil and did not act in good faith - showed discrimination towards the Plaintiff - withheld important evidence. [12] The Plaintiff claims damages in the sum of $266,761.00, plus interest and costs. IV. ANALYSIS [13] The Defendants submit that the allegations contained in the Plaintiff’s claim disclose no reasonable cause ofaction.

In particular, the Defendants assert that there is no cause of action that permits the Plaintiff to sue an adverse counsel and that Ms.Shewchuk is protected by absolute privilege. [14] I agree. [15] The Plaintiff is not entitled, as a matter of law, to bring an action against Ms. Shewchuk merely because he is nothappy with the way in which she represented her client. To be valid, a claim must be based on a legally recognized cause of actionarising from tort, contract, statute, or the like.

Such is not the case here. [16] The Plaintiff has not pointed to or relied upon a contract, a statute or any other recognizable cause of action tofound his claim, with the possible exception of tort. One of the essential ingredients of the tort of negligence is for a plaintiff to establishthe existence of a legal duty of care. See Anns v Merton London Borough Council, [1978] AC 728 (HL); Cooper v Hobart, 2001 SCC 79,[2001] 3 SCR 537; and Nelson (City) v Marchi, 2021 SCC 41, 463 DLR (4th) 1. [17] The law is well settled that a lawyer owes no legal duty to the party opposite.

In Lawrence v Sandilands, 2003BCSC 211 [Lawrence], the Court explained that the only party to whom a lawyer owes a duty of care is to his or her client: 77 It is well established that in the course of counsel’s representation of his or her clients interests, it is to be expected that “...much maybe done that is intentionally and necessarily directed toward injuring the opposing party’s interests.” (Crooks v.

Manolescu, [1995] B.C.J.No. 17 (B.C.S.C.) at paragraph 10). ... 79 While a solicitor may owe an ethical duty to the court to be candid and fair, the only party to whom a solicitor owes an actionableduty is his or her client (Jensen v.

MacGregor (1992), (BC SC), 65 B.C.L.R. (2d) 224 at p. 228 (B.C.S.C.)). 80 The court in Jensen found that in the absence of a contractual obligation and any duty of care owed between counsel for one partyand the party adverse in interest, there was no recognizable cause of action, no plausible argument and no triable issue raised on thepleadings. [Emphasis added] [18] Further, in Young v Borzoni, 2007 BCCA 16 at para 52, 277 DLR (4th) 685, the British Columbia Court ofAppeal found it “patently absurd” to permit a plaintiff to sue an opposing lawyer because to do so was “tantamount to an assertion thatall counsel who represent litigants owe a fiduciary duty or a duty of care to the other party to the litigation” which is impossible, given“the very nature of a solicitor’s duty to her own client”. [19] These principles have been recognized in this province as well.

In Babatunde v Bank of Canada, 2017 SKQB 62at paras 90 and 91, the Court made these very clear statements: 90 It is a further significant attribute of this matter that the defendant lawyers owed no duty of care to the plaintiff as the principle of“duty of care” is founded in Canadian jurisprudence. Throughout, the defendant lawyers acted for the defendant Bank of Canada. Thiswas a defendant completely adverse in interest to the interests of the plaintiff.

A lawyer must find herself or himself in a position ofbeing able to act fearlessly when advocating on behalf of a client in a court proceeding without the threat of liability stemmingtherefrom. 91 I am unable to see any

interpretation of the factual scenario before me which would suggest that in any way the defendant lawyersowed some manner of duty of care to the plaintiff or that it could be said in some fashion to have a duty to inferentially have due regardto the rights of the plaintiff in advancing the litigation. The principle in my view is clear that no duty of care arises between a litigant andcounsel for the other side of the litigation. [Emphasis added] See also Mitchell v Candle Lake (Resort Village), 2022 SKKB 283 at paras 26 to 34 [Mitchell].

[20] Accordingly, I find that the claim against Ms.

Shewchuk must be struck as disclosing no reasonable claimbecause she did not owe a duty of care to the Plaintiff. [21] Further, apart from not owing the Plaintiff a duty of care, the Plaintiff’s action discloses no reasonable claimbecause she was a lawyer conducting litigation and is protected by the doctrine of absolute privilege. [22] In Lawrence, the Court discussed the doctrine of absolute privilege and the reasons for its application to lawyers conducting litigation: 89 The pleadings allege that the claims advanced by the defendant solicitors and their clients in the civil proceedings “have brought theplaintiffs into public scandal, odium and contempt” and, with respect to Mr.

Lawrence, caused injury to “his character, credit andreputation...” 90 Even assuming that the pleadings disclosed a separate cause of action for defamation, there is no plausible claim in law. That isbecause the defendant solicitors, as counsel advocating a position on behalf of their clients, are protected from claims alleging theirconduct during the civil proceedings was defamatory. There is an absolute privilege for all communications made by counsel “in thecourse of, or incidental to, the processing and furtherance of judicial and quasi-judicial proceedings” (R.E.

Brown, The Law ofDefamation in Canada (2d ed.) (Toronto: Carswell, 1994) at p. 17). 91 Whether the communications are made by parties, counsel or witnesses, they are made on an occasion of absolute privilege and nocivil action will lie for what is alleged (Geyer v.

Merritt and Gouge (1979), (BC SC), 16 B.C.L.R. 27 (B.C.S.C.) atpage 32; affirmed (1980), (BC CA), 26 B.C.L.R. 374 (B.C.C.A.)). 92 The protection extends to “the content of all pleadings, documents and testimony offered in evidence, and to all actions takenpreliminary but necessary to the institution or processing of the action or essential to the judicial review of or execution upon judgementor decision” (The Law of Defamation in Canada (2d ed.) supra). 93 As any statements made or steps taken by Mr. Baynham or Mr.

Hilliker on their clients’ behalf in the course of the civil proceedingsare subject to an absolute privilege, the pleadings disclose no reasonable claim for defamation. [Emphasis added] [23] Hildebrandt J. in Mitchell, arrived at a similar conclusion, namely, that a lawyer litigating on behalf of his or herclient is covered by absolute privilege: 35 A lawyer cannot be sued by an opposing party for the lawyer’s work in the scope of representing her client in a court proceeding.In Davidoff [2020 ONSC 1171], an action was commenced against a lawyer for alleged malicious prosecution in a previous civil actionregarding defamation.

The lawyer applied for

summary judgment to strike the claim, with one of the grounds being that the doctrine ofabsolute privilege barred the claim. 36 At paras. 19-20 of Davidoff, the court confirmed this doctrine in relation to the lawyer, Rachel Goerz: [19] The defendant Goerz submits that it is well-established that the doctrine of absolute privilege applies to bar all tort claims based oncommunication that take place during, incident to, and in furtherance to a court proceeding. The privilege extends to any action, howeverframed, and is not limited to actions for defamation (see Cook v.

Milbourne, 2018 ONSC 419, paras. 17 and 18). [20] This absolute privilege is supported by sound policy reasons. If a party can be sued for its conduct of a civil action, there could beno end to the litigation. A lawsuit could be commenced based on the second action and then again on the third action. [21] On the basis of that privilege, no claim lies against Goerz or Paderewski. [Emphasis in original] [24] All of the impugned communications purportedly made by Ms. Shewchuk were made in the course of orincidental to a judicial proceeding. Accordingly, I find that any statements allegedly made by Ms.

Shewchuk in the context of thelitigation are protected by absolute privilege and therefore the assertions made in the claim, even if true, could not sustain the claim andthus the claim discloses no reasonable causes of action against Ms. Shewchuk and must be struck. [25] Insofar as Omoben and Naidu are concerned, there are no allegations contained in the claim that assert that thoseentities did anything to the Plaintiff. At best they are, arguably, averments that those entities are vicariously liable for the wrongdoing ofMs. Shewchuk. However, since there is no viable claim against Ms.

Shewchuk, there can be no vicarious liability claim that carriesforward against Omoben and Naidu. Accordingly, the claim does not disclose a reasonable cause of action against Omoben and Naiduand the claims against them must be dismissed as well. V. CONCLUSION AND COSTS [26] Pursuant to Rule 7-9(2)(a), the Plaintiff’s claim is struck out, in its entirety, as disclosing no reasonable claim. [27] The Defendants did not seek costs against the Plaintiff and none are awarded. C.J.K.B. M.D. POPESCUL