Ouellette v McCann, 2023 ABKB 497

Court of King’s Bench of Alberta Citation: Ouellette v McCann, 2023 ABKB 497 Date: 20230830 Docket: 1401 05016 Registry: Calgary Between: Christian Sylva Ouellette and Christian Joffre Ouellette Plaintiffs - and - Edward McCann Defendant _______________________________________________________ Reasons for Decision of the Honourable Applications Judge J.T. Prowse _______________________________________________________ [ 1 ] This is an application for

summary dismissal by the defendant Edward McCann. His application is supported by the intervenor The Law Society of Alberta (“LSA”). [ 2 ] The self-represented plaintiff Christian Sylva Ouellette (‘Ouellette’), as well as counsel for the other plaintiff Christian Joffre Ouellette (‘Ouellette Jr.’), opposed the application for

summary dismissal. [ 3 ] For the reasons which follow I summarily dismiss this Action.

Background [4] The background to the Action is as follows: a. The Plaintiff Ouellette and Mr. McCann were opposing counsel in a matrimonial action; b. A partial settlement of the action occurred, which involved each lawyer holding funds in his respective trust account; c. In or about September 2005, Ouellette’s client, who owed him approximately $16,000.00 in legal fees, left town without a forwardingaddress; d. On March 3, 2006, Ouellette and Mr. McCann spoke over the telephone. Ouellette says that Mr.

McCann agreed that Ouellette couldpay Ouellette’s outstanding account from the monies held in Ouellette’s trust account; e. Ouellette then paid his outstanding account from the monies held in trust; f. On May 1, 2007, Ouellette sent the balance of the funds to Mr. McCann. McCann ultimately took the position that the amount sentover was insufficient; g. On February 4, 2008, Mr. McCann submitted a complaint to the LSA about the shortfall in trust monies received from Ouellette; h. Ouellette asserts that Mr. McCann’s complaint was an attempt to cover up a mistake by Mr.

McCann in agreeing, without instructionsfrom his client, to allow Ouellette to pay the outstanding account from trust. There is evidentiary support for Ouellette’s assertion in theform of McCann’s memo to file of March 3, 2006, which appears to confirm McCann’s agreement to Ouellette paying fees from the trustfunds. Further, for the purpose of this application, the assertion is presumed to be true; i. On May 20, 2010, the LSA conducted a hearing during which Mr. McCann and Ouellette provided viva voce evidence (the “FirstHearing”). The Plaintiffs allege that Mr.

McCann testified fraudulently during this hearing by denying that he agreed to Ouellette’spayment of legal fees; j. Ouellette was found guilty of conduct deserving of sanction and was told that the hearing panel was considering disbarment as apenalty; k. On October 29, 2010, because of a procedural defect in the composition of the panel, the First Hearing was declared to be a nullity andthe finding of guilt was vacated; l.

On May 7, 2012, the LSA conducted a second hearing during which no viva voce evidence was presented (the “Second Hearing”).Rather, the transcripts from the First Hearing were entered as evidence; and m. At the Second Hearing, Ouellette was found not guilty of conduct deserving of sanction. [5] The plaintiffs issued a statement of claim against McCann on May 7, 2014. It alleges that Mr.

McCann owed them a duty ofcare to refrain from misrepresenting to the LSA any allegations of fact which he knew or ought of have known were false; that McCannbreached that duty of care by misrepresenting facts to the LSA; that it was foreseeable that Mr. McCann’s conduct would cause damagesto the Plaintiffs; and that the Plaintiffs each incurred significant damages as a result. The plaintiffs assert that their claim alsoencompasses the intentional torts of fraud and deceit. [6] McCann seeks

summary dismissal, and is supported in that application by the LSA. Both assert that McCann, as acomplainant and as a witness in the LSA proceedings, is entitled to absolute immunity. In other words, even assuming that the assertionsof fraud and deceit against Mr. McCann are true (notwithstanding that they are denied) he still cannot be sued. [7] For the purposes of this application, while not finding fraud, deceit or bad faith on the part of McCann, I assume that theplaintiffs are correct in these assertions. [8] On a

summary judgment application such as this, the usual practice is to assume that the evidence of the respondent, in thiscase Ouellette, is true, and to see whether, despite those adverse facts, the applicant is entitled to

summary judgment: Clarke v.Connell, (AB KB), 1997 CarswellAlta 513, 10 C.P.C. (4th) 276, at para 4; Goodfellow Inc. v. Woody’s HardwoodFlooring Ltd., 2003 ABQB 162 (Alta. Q.B.) at paras 20-21; Peters v. Wilson Estate, 2011 ABQB 665 (Alta. Q.B.) at paras 6-7;Sherwood Steel Ltd. v. Odyssey Construction Inc., 2014 CarswellAlta 1750, 2014 ABCA 320, at para 8; and 776826 Alberta Ltd. v.Ostrowercha, 2015 CarswellAlta 155, 2015 ABCA 49 at para 10.

Absolute Immunity [9] The LSA cites the following authorities in supporting of their submission that complainants and witnesses at judicial andquasi-judicial hearings are entitled to absolute immunity (in chronological order): • Hung v. Gardiner, 2003 BCCA 257, at para’s 30 to 34. • Schut v. Magee, 2003 BCCA 417, at para 15. • Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115, at para’s 102, 112 and 115.

• Liboiron v. Majola , 2007 ABCA 18 , at para’s 10 and 11. • Alan Mewett & Peter Sankoff, Witnesses (Toronto, ON: Carswell, 1991) (loose-leaf revision 2014:3, vol 2) at 10:38 and 20:41. • Fouad v. Longman , 2014 BCSC 785 , at para’s 83 and 84. • D'Mello v. The Law Society of Upper Canada , 2014 ONCA 912 , at para 18 . • Rizvi v Syed , 2016 ABQB 400 , at para 26 . • Moak v. Hart , [2016] O.J. 6689 (SCJ), at para 59 . • Ernst v. Alberta Energy Regulator , 2017 SCC 1 , at para 50 . • Lefebvre v.

Durakovic , 2018 BCCA 201 , at para’s 19, 20, 23 and 28. • Huff v Zuk , 2019 ABQB 691 , at para’s 137 and 189 The 2001 Dechant decision [ 10 ] However, McCann and the LSA are faced with a 2001 decision of the Alberta Court of Appeal , Dechant v Stevens , 2001 ABCA 39 , which deals with an exception to the general proposition that witnesses in judicial or quasi-judicial proceedings are entitled to absolute immunity. [ 11 ] Dechant concluded that, in proceedings governed by

section 115 (formerly

section 112) of the Legal Profession Act , RSA 2000, c L-8 , (the “ LPA ”) an exception applied to the general rule of absolute immunity such that a complainant/witness in Law Society of Alberta proceedings is only entitled to qualified privilege.

In other words, the complainant/witness is only entitled to immunity where it is established that the complaint/testimony was made in good faith. [ 12 ] The LSA observes that in some of the cases cited in paragraph 8 of these reasons the Dechant decision expressly was not followed, namely: • Schut • Fouad • Moak • D’Mello [ 13 ] This observation is not relevant as those decisions are only persuasive, whereas the Dechant decision is binding on me. [ 14 ] McCann and the LSA submit that the exception to absolute immunity, set out in the majority decision in Dechant, does not apply to McCann’s

summary dismissal application for three reasons: (1) the Court’s observation in Dechant that certain aspects of the doctrine of absolute immunity were uncertain no longer applies as the doctrine has been confirmed in the 22 years since the Dechant was decided. (2) the Court in Dechant noted that the application before it was a striking application only, with no evidentiary basis, while McCann’s application is a

summary dismissal application, based on a full evidentiary record.

(3) Dechant applied

section 115 of the LPA , which is not applicable here both because Mr. McCann does not fall in the category of individuals listed in

section 115 , and because

section 115 only applies to cases of defamation, whereas this is a negligence and intentional tort case. Developments in the law of absolute immunity since Dechant was decided [ 15 ] In Dechant , the Court observed, at para’s 31, 33, 34 and 120 of it’s decision, that the applicability of absolute immunity was unsettled, and in particular its applicability to quasi-judicial proceedings. The authorities cited in paragraph 8 of this decision are all subsequent decisions, which show that the law is no longer unsettled. The evidentiary record [ 16 ] In Dechant , at paragraphs 31, 33, 34, 35 and 54 of the decision, the Court noted that in the case before it, (as summarized in the LSA’s brief): (

a) There was no evidence about how a complaint was initiated and answered, including no evidence about what happened to letters of response;

(

b) There was no evidence as to how adjournments were obtained; (

c) There was no evidence about the LSA’s procedures and protocols for processing a claim; and (

d) There was no evidence describing the disciplinary procedures in place at the LSA. [ 17 ] In this case, unlike in Dechant , there is a complete evidentiary record before the Court.

Section 115 does not apply to Mr. McCann plus this is not a defamation case [ 18 ]

Section 115 of the LPA used to be numbered 112, but the wording has not changed. [ 19 ] The majority decision in Dechant revolves around what is now section 115(2) of the LPA , which reads:

(2) No action for defamation may be founded on a communication regarding the conduct of a member or student-at-law if the communication is published to or by a person within any of the classes of person enumerated in subsection (1), in good faith and in the course of any proceedings under this Act or the rules relating to that conduct. (emphasis added) [ 20 ] The logic applied was that, if the statutory protection from litigation was only granted in cases of good faith, then the Legislature must have intended there to be no protection in cases of bad faith (see paragraph 24, 25 and 27 of the decision). [ 21 ]

Section 115 only applies to the following class of individuals, which does not include Mr. McCann: • the Society or a person who is or was an officer, employee or agent of the Society, • a person who conducted an investigation under

Part 3, • a person who is or was a Bencher or a member of a committee established by or under this Act, • a person who is or was a custodian appointed under

Part 4, • a subsidiary corporation of the Society referred to in section 99(2)(

b) or a person who is or was a director, officer or employee of that corporation, or • a person who acted on the instructions of, or under the supervision of, a person referred to above. [ 22 ] Further, as indicated earlier, Ouellette’s action is for negligence and/or intentional tort, not for defamation. Consequently, section 115(2) does not apply and there is no ground for concluding that the Legislature intended to revoke the doctrine of absolute immunity which otherwise exists.

Conclusion re Dechant [ 23 ] The exception to the general rule of absolute immunity set out in Dechant does not apply in this case, for the reasons set out above. McCann is entitled to absolute immunity and to have

summary dismissal of the plaintiffs’ claims. [ 24 ] In all of the authorities cited in paragraph 8 above, the Courts were aware that the applicability of absolute immunity meant that a malicious complainant or witness was being sheltered from civil liability. [ 25 ] How many family law lawyers have been subjected to malicious complaints by the ex-spouse of their client? It must be a nuisance to deal with these types of complaints, but the evidence filed in this case describes the filters in place to weed out unmeritorious complaints to the LSA at an early stage.

If a malicious complaint does manage to proceed to a hearing, the law of perjury would apply to false testimony. Is it necessary to have the bad faith complainant/witness also face civil liability? [ 26 ] On the other hand, if a complaint/witness can be sued and good faith must be established, a bona fide complainant might be driven to financial ruin fending off a claim. Good faith is typically something that cannot be determined on a

summary basis, but rather often requires a trial. In this case, the complaint against McCann was launched in 2008, over 17 years ago. If members of the public, most of whom (unlike lawyers) are not insured, heard that bringing forward a complaint might unleash upon them decades of litigation, for which they must either self-represent or pay legal fees, how many of them would be willing to bring forward complaints against regulated professionals? [ 27 ] The logic behind the case law on absolute immunity is clear and compelling. Costs [ 28 ] If the parties cannot agree on a costs outcome of this ruling, they may make submissions to me in that regard.

Heard on the 29 th day of June, 2023. Dated at the City of Calgary, Alberta this 30 th day of August, 2023. J.T. Prowse A.J.C.K.B.A. Appearances: Christian Sylva Ouellette Self represented plaintiff Clive Llewellyn For the plaintiff Christian Joffre Ouellette Laura K. Feehan Emery Jamieson LLP for the defendant Karl R. Seidenz Law Society of Alberta for the intervenor LSA