While the common law doctrine of absolute privilege, which protects statements made by lawyers and others in the course of judicial proceedings from legal attack, may be well established, the scope of its application continues to evolve. This has significant implications for litigation counsel.
The Court of Appeal for Ontario's recent decision in Curtis v McCague Borlack LLP, 2024 ONCA 729 marks the Court's most recent development of the boundaries of absolute privilege. In Curtis, the Court, considering allegations that a lawyer had deliberately filed an inaccurate affidavit, unanimously held that although the doctrine of absolute privilege "plainly applies beyond defamation," a claim for malicious prosecution may be pursued in spite of it.1
Below, we review the Court of Appeal's decision and consider its implications for the doctrine in Ontario.
Legal Background
The doctrine of absolute privilege shields judges, advocates, jurors, and others from actions based on "words spoken in the ordinary course of any proceedings before any court or judicial tribunal recognized by law." Such statements are privileged whether they are "oral or written, relevant or irrelevant, malicious or not." However, to be covered, the statements must be "uttered for the purposes of judicial proceedings by someone who has a duty to make statements in the course of the proceedings."2
Factual Background
The appellants in Curtis were two self-represented individuals, Gary Curtis and Tanya Rebello. Together they brought an action against the law firm McCague Borlack LLP and one of its partners, Eric Turkienicz (the "Lawyer Defendants").
The action was brought in respect of the Lawyer Defendants' alleged misconduct in another lawsuit (the "Rebello Action"). In that lawsuit, which was commenced by Rebello in October 2018, Rebello alleged that the condominium corporation of the building in which she and Curtis lived and its security guard services provider, Paragon Security, had conspired with Toronto Police Services to have her arrested for a crime she did not commit. The Lawyer Defendants had represented Paragon Security in that lawsuit.
In their claim against the Lawyer Defendants, Curtis and Rebello alleged that while acting for Paragon Security in the Rebello Action, the Lawyer Defendants had deliberately filed an inaccurate affidavit concealing evidence that Paragon's employees had attempted to frame Curtis. The Statement of Claim alleged negligence, conspiracy, fraudulent misrepresentation and intentional infliction of mental distress. The tort of malicious prosecution was also "alluded to, but imperfectly pleaded".3
The Lawyer Defendants moved to strike the Statement of Claim on the basis that it disclosed no reasonable cause of action because absolute privilege applied. The motion judge, describing Curtis and Rebello as "serial litigators" and their action as "entirely devoid of any merit," struck the Statement of Claim without leave to amend.4 Curtis and Rebello appealed.
The Ontario Court of Appeal's Decision
In a unanimous decision, the Ontario Court of Appeal granted the appeal in part – upholding the decision to strike the Statement of Claim, but granting Curtis leave to amend it to pursue a malicious prosecution claim against Mr. Turkienicz.5
The Court held that the motion judge was correct to find that the claim, as it was pleaded, was barred by absolute privilege. The Court began its analysis by quoting the following definition of absolute privilege:6
It is well established that the doctrine of absolute privilege prevents claims based on communications that take place during, incidental to, and in furtherance of a court proceeding. It makes no difference if the words used are knowingly false and spoken with malice: they are subject to immunity from suit.
Curtis argued that the absolute immunity afforded by the doctrine should be limited in application to protecting counsel in defamation actions. The Court disagreed, stating that while "the contours of the doctrine" may not be fixed, "it plainly applies beyond defamation."7 The Court observed that the doctrine benefits the public interest by freeing litigators of the concern that they may be sued for things said and done in the process of advocating for their client. As such, none of the causes of action that had been pled – for example fraudulent misrepresentation and intentional infliction of mental distress – could be advanced in the face of absolute privilege.
However, the Court identified an exception to the doctrine that applied in the circumstances. Relying on previous case law which had flagged absolute privilege as a "threat to the individual rights of citizens who have been wrongly and maliciously prosecuted,"8 the Court permitted Curtis and Rebello to amend their pleading to properly plead a claim for malicious prosecution.
Commentary
Despite existing for over a century, the contours of absolute privilege are still being examined and reshaped in Ontario. For example, in 2015, the Court expanded the doctrine's scope by confirming that absolute privilege can extend to communications made even before the commencement of a judicial proceeding provided they are "directly concerned with actual contemplated proceedings."9 In Curtis, however, the Court of Appeal has narrowed the doctrine's application where the public interest was threatened: in a conflict between protecting "vigorous and undistracted advocacy" on the one hand, and the individual right of citizens not to be wrongly and maliciously prosecuted on the other, the immunity afforded by absolute privilege should not extend to actions for malicious prosecution.10
Legal professionals (and their defence counsel) should bear this in mind.
Footnotes
1 Curtis v McCague Borlack LLP, 2024 ONCA 729 at paras 12-16.
2 Amato v. Welsh, 2013 ONCA 258 at para 34; Halsbury's Laws of England, vol. 28, 4th ed. (London: Butterworths, 1997) at para 97.
3 Curtis v McCague Borlack LLP, 2024 ONCA 729 at para 8.
4 Ibid at paras 5, 19.
5 Ibid at paras 16, 18, 20.
6 Ibid at para 9; Bluteau v. Griffiths, 2023 ONSC 1004 at para 29.
7 Ibid at para 12.
8 Ibid at para 13, citing Nelles v Ontario, [1989] 2 SCR 170 at 199.
9 Salasel v Cuthbertson, 2015 ONCA 115 at paras 36, 41.
10 Curtis v McCague Borlack LLP, 2024 ONCA 729 at paras 11, 13.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
