



COURT OF APPEAL FOR ONTARIO

CITATION: Kiani v.
    Smith, 2015 ONCA 232

DATE: 20150408

DOCKET: C59608

Sharpe, van Rensburg and Brown JJ.A.

BETWEEN

Farsad Kiani

Plaintiff (Appellant)

and

Annalyn G. Smith
and Pamela Pengelley

Defendants (Respondent)

V. Ross Morrison, for the appellant

Iain Peck and Tania Campisi, for the respondent

Heard and released orally: March 31, 2015

On appeal from the order of Justice David Corbett of the Superior
    Court of Justice, dated October 6, 2014.

ENDORSEMENT


[1]

The claim asserted by the appellant relates to:

1)

the alleged conduct of
    the respondent Smith, a Texas lawyer, in connection with litigation in Texas
    against a company of which the appellant was the principal; and

2)
    the alleged conduct by that same lawyer in relation to enforcement proceedings
    brought in Ontario based upon the Texas judgment.

[2]

The motion judge struck the claim on a rule 21 motion as disclosing no
    cause of action.

[3]

We agree with the motion judge that the claim is misconceived.

[4]

The conduct of Smith in the Texas proceedings concerned conversations
    between her, as counsel for the opposing party, and a former employee of one of
    the appellants companies, a potential witness in the case, and her statement
    that she might call that witness on behalf of her client. Those statements, as
    pleaded, whether in conspiracy or intentional infliction of harm, are not
    actionable. It is conceded that as the respondent was acting for the opposite
    party in litigation, she owed the appellant no legal duty. There is no
    allegation that anything done in Texas was contrary to Texas law. We also agree
    with the motion judge that as the claim rests on Smiths conduct of litigation
    in Texas, it would be incumbent on the appellant to raise any objection to that
    conduct in the courts of Texas.

[5]

To the extent the pleading asserts interference with contractual
    relations, we note that the only contract pleaded is that of the witness as an
    employee of the corporation, not the plaintiff.

[6]

With respect to the allegations resting on the Ontario enforcement
    action, as the motion judge found, the allegation of a breach of the implied
    undertaking rule must be dealt with within the context of the Ontario action.

[7]

In our view, the motion judge was well within his discretion in ruling
    that this was a clear case in which leave to amend should be refused.

[8]

We see no merit in the contention that, having heard and decided the
    companion motion brought by the Ontario solicitor, the motion judge should have
    recused himself from hearing this motion. Both matters were scheduled to be
    heard together, and the statement alleged to give rise to a reasonable apprehension
    of bias was nothing more than a proposition of law upon which the appellant had
    been fully heard.

[9]

Accordingly, the appeal is dismissed.

[10]

Costs
    to the respondent fixed at $7,000, inclusive of disbursements and taxes.

Robert J. Sharpe J.A.

K. van Rensburg J.A.

David Brown J.A.


