



COURT OF APPEAL FOR ONTARIO

CITATION: Frank v. Legate, 2015 ONCA 631

DATE: 20150918

DOCKET: C59283

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Cathy Frank

Plaintiff (Appellant)

and

Barbara
    Legate, Joni Dobson, Keith Finley and Legate & Associates LLP

Defendants (Respondents)

Nathaniel Erskine-Smith, for the appellant

Paul Michell, for the respondents

Heard:  March 5, 2015

On appeal from the order of Justice Thomas J. Carey of the
    Superior Court of Justice, dated August 5, 2014.

Hourigan J.A.:

INTRODUCTION

[1]

Cathy Frank appeals from the order of Carey J.
    striking her statement of claim under rule 21.01 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, on the ground that it did not disclose a
    reasonable cause of action.

[2]

The appellant submits that the motion judge
    erred by effectively turning the pleadings motion into a summary judgment
    motion and thereby applied the wrong test in his review of her statement of
    claim.

[3]

For the reasons that follow, I would dismiss the
    appeal. The appellants action was fundamentally misconceived. I see no error
    in the motion judges conclusion that the causes of action advanced by the
    appellant were either premature or were not properly pleaded. Regardless, the
    appellants claim was also an abuse of process and could have been struck on
    that basis.

BACKGROUND FACTS

[4]

The appellant is an obstetrician and gynecologist
    who practices medicine in London, Ontario.

[5]

The respondents are lawyers who represent the
    appellants former patients in complaints with the College of Physicians and
    Surgeons of Ontario (the College) and medical malpractice actions against the
    appellant.

[6]

The appellants statement of claim alleged that certain
    statements by the respondents, six of which were published on the website of
    the respondents law firm and one of which was published in an article on the
    CTV news website, were defamatory. Those statements are set forth below.

[7]

In addition to the defamation claim, the
    appellant also asserted claims for malicious prosecution, champerty and
    maintenance, intentional interference with economic relations and intentional
    infliction of mental distress. She claimed $5 million in damages, including $500,000
    in punitive damages.

[8]

The respondents brought a motion to strike the
    appellants statement of claim under Rule 21 on the basis that it failed to
    disclose a reasonable cause of action. In their notice of motion they also
    sought to strike the claim under rule 25.11 on the ground that it was
    scandalous, frivolous, vexatious and an abuse of process. Prior to the motion,
    the appellant delivered a proposed amended statement of claim to the
    respondents. The appellant did not bring a motion to amend the original
    statement of claim.

THE DECSION BELOW

[9]

The motion judge struck the appellants claim in
    its entirety. In his reasons, he considered each of the causes of action
    asserted by the appellant.

[10]

With respect to the defamation claim, the motion
    judge noted that courts will only strike defamation pleadings in the clearest
    of cases. He described his task as determining whether an ordinary,
    thoughtful, well-informed member of society would reasonably conclude that the
    words complained of were capable of conveying a defamatory meaning. None of the
    impugned statements met this standard. The first five were purely informational
    and expressed no view on the merits of any of the claims against the appellant.
    The sixth statement was appropriately qualified by the words we allege. The
    seventh and final statement again did not comment on the merits of any claims
    against the appellant.

[11]

The motion judge found that the malicious
    prosecution action was premature because none of the lawsuits or complaints to
    the College had yet been terminated or resolved. The appellants statement of
    claim alleged that all the cases and complaints had, or will be resolved in her
    favour. While the motion judge recognized that he was required to accept the
    appellants allegations as true unless they were not provable, he concluded that
    the question of whether the complaints and actions would terminate in the
    appellants favour was not yet provable.

[12]

Given that the lawsuits against the appellant were
    ongoing, the claim for champerty and maintenance was also premature.
    Regardless, the factual allegations in the statement of claim did not support
    these causes of action. The appellant did not plead that the respondents
    stirred up litigation that would not otherwise have been pursued or that they
    brought baseless claims as a form of intimidation.

[13]

On the claim of intentional interference with
    economic relations, the motion judge noted that this cause of action permits a
    plaintiff to sue a defendant for economic loss caused by the defendants
    unlawful act against a third party where the defendant intended to damage the
    plaintiff. The motion judge concluded that the appellants pleadings were
    unspecified and did not suggest that the elements of this tort were met.
    Further, the alleged unlawful act appeared to be that the respondents made
    misrepresentations to the appellants former patients. These communications are
    protected by solicitor-client privilege. As a result, this claim was also
    struck under rule 25.11 since it relied on inadmissible evidence.

[14]

The motion judge concluded that the appellant
    failed to particularize the conduct giving rise to her claim for intentional infliction
    of mental distress. He noted that a defendant reading the statement of claim
    would not know what conduct was at issue in relation to this claim.

[15]

On the claim for punitive damages, the motion
    judge found that the appellants allegation that the respondents conduct was a
    callous, flagrant, arbitrary, malicious, high-handed, capricious, arrogant and
    complete and flagrant disregard of the rights of the plaintiff and of the
    plaintiffs patients did not particularize any conduct that could give rise to
    this type of award.

[16]

The motion judge went on to consider the putative
    amended statement of claim and concluded that the proposed amendments did not
    remedy any of the defects in the issued claim.

[17]

Finally, the motion judge noted that absent
    further substantial, specific allegations, any continued action against the
    respondents ran the risk of being seen as an abuse of process. He found that the
    claims would likely be viewed as a collateral attack aimed at intimidating and
    distracting the respondents.

[18]

Quite unusually, the motion judge did not
    consider the issue of whether the appellant should be granted leave to amend
    her statement of claim. The appellant does not seek that relief in her notice
    of appeal or factum.

POSITIONS OF THE PARTIES

(i)

Position of the Appellant

[19]

The appellant submits that a defamation claim
    should only be struck on a Rule 21 motion where the impugned statements are
    clearly not capable of a defamatory meaning. The statements at issue in this
    case do not fall within the clearest of cases. She argues that the motion judge
    also erred by suggesting that the defamatory statements pleaded in the proposed
    amended statement of claim could not support an allegation of defamation.

[20]

The appellant argues that the tort of malicious
    prosecution applies to civil actions and disciplinary proceedings. The
    motion judge was required to assume that the facts pleaded in the statement of
    claim were true. Given that the statement of claim stated that all proceedings
    have, or will, terminate in the appellants favour, the motion judge erred in
    finding that no proceedings had terminated in her favour and in relying on a
    representation by counsel for the respondents regarding the current status of
    the actions and complaints in reaching that conclusion.

[21]

Regarding the claim for champerty and
    maintenance, the appellant submits that the elements were properly pleaded and that
    the motion judge erred by failing to read the pleadings broadly.

[22]

With respect to the intentional interference
    with economic relations claim, the appellant pleaded that the respondents made
    misrepresentations to induce the appellants former patients to pursue claims
    against the appellant. Because the misrepresentations were public statements, the
    motion judges finding that the alleged misrepresentations were protected by
    privilege was an error.

[23]

The appellant also submits that the motion judge
    erred by dismissing her claim for intentional infliction of mental distress on the
    ground that the statement of claim did not particularize the comments or
    actions. The motion judge should have read the pleadings as a whole, rather
    than focusing solely on one paragraph.

[24]

Finally, the appellant argues that the motion
    judge erred by relying on a breach of contract case to conclude that the
    appellants statement of claim for punitive damages did not sufficiently
    particularize her claim. The causes of action advanced by the appellant are
    significantly more egregious than a breach of contract claim. Consequently, the
    claim for punitive damages in the present case does not require the same level
    of detail as a breach of contract case. The appellant submits that the general
    reference to conduct pleaded elsewhere in the statement of claim was sufficient.

(ii)

Position of the Respondents

[25]

The respondents submit that the motion judge
    correctly concluded that the statements attacked by the appellant are not
    capable of bearing a defamatory meaning. In a defamation action, the statement
    of claim must identify each alleged defamatory statement specifically, as well
    as who made the statement, when it was made and to whom. The appellants
    statement of claim did not comply with these requirements.

[26]

With regard to the proposed amended statement of
    claim, the appellant did not take steps to have it issued, nor did she seek
    leave to amend the existing statement of claim. As a result, the motion judge
    did not have jurisdiction to rule on the proposed amended statement of claim.
    To the extent that he expressed his opinion regarding its contents, this had no
    legal effect and is thus irrelevant to this appeal.

[27]

The respondents submit that the tort of
    malicious prosecution is unavailable in the circumstances because it only
    applies to criminal prosecutions where the proceedings have terminated in the
    plaintiffs favour.

[28]

The respondents argue that complaints to the
    College cannot give rise to a claim for champerty, since they do not constitute
    litigation where damages are sought. As for the civil proceedings, champerty and
    maintenance are only actionable if the plaintiff has suffered special damages.
    Since the civil proceedings against the appellant have not concluded, the
    appellant has not suffered any damages and this claim is premature.

[29]

The respondents argue that to succeed on a claim
    of intentional interference with economic relations, a plaintiff must show that
    the defendant intended to cause loss to the plaintiff as an end in itself or as
    a means of enriching itself. The appellants statement of claim does not
    satisfy this test and does not identify what unlawful means were used by the
    respondents. In addition, the claim will necessarily require evidence regarding
    the communications between the respondents and their clients, which are
    protected by solicitor-client privilege.

[30]

The respondents argue that the motion judge
    correctly concluded the appellants pleadings did not particularize the conduct
    that she alleged gave rise to an intentional infliction of mental distress
    claim.

[31]

Regarding the punitive damage claim, the
    respondents submit that the motion judge correctly concluded that the
    appellants pleading did not identify the facts giving rise to the claim for
    punitive damages with sufficient particularity. The general reference to
    aforesaid conduct was insufficient.

[32]

Finally, the respondents raise an additional
    issue. They submit that the appellants statement of claim was a collateral
    attack on ongoing proceedings before the courts and the College. Consequently,
    they argue that it was open to the motion judge to strike the statement of
    claim in its entirety as an abuse of process.

ISSUES

[33]

This appeal raises the following issues:

·

Did the motion judge err in striking the
    appellants claim for defamation?

·

Did the motion judge err by
    striking the appellants claim for malicious prosecution?

·

Did the motion judge err by
    striking the appellants claim for champerty and maintenance?

·

Did the motion judge err by
    striking the appellants claim for intentional interference with economic
    relations?

·

Did the motion judge err by
    striking the appellants claim for intentional infliction of mental distress?

·

Did the motion judge err by striking
    the appellants claim for punitive damages?

·

Should the claim be dismissed as
    an abuse of process?

ANALYSIS


(i)      General Principles

[34]

Before turning to a review of the causes of
    action pleaded in this case, it is useful to have regard to three important legal
    principles that govern on this appeal.

[35]

The first principle is the standard of review.
    There is no issue between the parties, and I agree, that the motion judge was
    engaged in a purely legal analysis. Therefore, the standard of review is
    correctness:
Housen v. Nikolaisen
, 2002 SCC 33, 2 S.C.R. 235, at para.
    36.

[36]

The second principle is the governing test on a
    motion to strike a pleading under rule 21.01(1)(b) for disclosing no reasonable
    cause of action. The parameters of the test are well established in the case
    law. A claim should only be struck under this rule if it is plain and obvious
    that there is no reasonable prospect it can succeed:
Hunt v. Carey Canada
    Inc
.
, [1990] 2 S.C.R. 959, at p. 980;
Guergis v. Novak
,
    2013 ONCA 449, 116 O.R. (3d) 280 (C.A.), at para. 34. In undertaking that
    analysis, the motion judge must assume the allegations of fact in the statement
    of claim are true, unless they are patently ridiculous or incapable of proof:
McCreight
    v. Canada (Attorney General)
, 2013 ONCA 483, 116 O.R. (3d) 429, at para.
    29. The motion judge must also read the statement of claim as generously as
    possible, with a view to accommodating any inadequacies in the pleading:
R.
    v. Imperial Tobacco Canada Ltd
., 2011 SCC 42, [2011] 3 S.C.R. 45, at
    paras. 17-22.

[37]

Third, the court has discretion under rule 25.11
    to strike a pleading that may prejudice or delay the fair trial of an action or
    that is scandalous, frivolous, vexatious, or an abuse of process.

[38]

With these principles in mind, I turn to an
    analysis of each of the causes of action asserted in the statement of claim and
    a consideration of the respondents submission that the claim should be struck
    as an abuse of process.

(ii)   
    Defamation

[39]

In
Grant v. Torstar Corp
.
, 2009
    SCC 61, [2009] 3 S.C.R. 640, at para. 28, the Supreme Court of Canada held that
    a plaintiff must prove the following three elements in a defamation action: 1)
    the defendant made a defamatory statement, in the sense that the impugned words
    would tend to lower the plaintiffs reputation in the eyes of a reasonable
    person; 2) the words in fact referred to the plaintiff; and 3) the words were
    communicated to at least one person other than the plaintiff.

[40]

A reasonable person in this context is one who
    is reasonably thoughtful and informed, who would understand the difference
    between allegations and proof of guilt. Such a person would keep in mind that
    an accused person is presumed innocent until proven guilty:
Guergis
, at
    paras. 38 and 57;
Miguna v. Toronto (City) Police Services Board
,
[2004] O.J. No. 2455 (S.C.), at paras. 4-6, affd [2005] O.J. No. 107 (C.A.).

[41]

Courts will only grant a motion by a defendant
    to strike a pleading on the basis that the statement at issue is incapable of a
    defamatory meaning in the clearest of cases. If this standard is not met, determination
    of the issue will be left to the trier of fact at trial:
Guergis
, at
    para. 41.

[42]

The statements in issues are as follows:

(i) There
    are over 100 former patients of Dr. Frank who contacted Legate & Associates
    about her treatment. Legate & Associates has issued 58 claims in the
    Superior Court of Justice to date. Several more cases are under investigation.

(ii) It is
    expected that many more lawsuits will be issued.

(iii) 
    [S]ince releasing the details of lawsuits undertaken on behalf of three women
    who were patients of Dr. Cathy Frank, over 90 women have come forward.

(iv) If
    you think you or your baby may have a claim against Dr. Frank, please contact
    Legate & Associates.

(v) Legate
    is pursuing the public review by the Discipline Committee instead of the
    secretive Complaints Committee process.

(vi)  [She]
    passed all of the exams but when [she] went out to practice, there was a
    problem  the unfortunate consequence of that, we allege, is that children have
    been born with disabilities that they wouldnt have otherwise had.

(vii) Over
    100 women contacted Legate & Associates about their treatment and that of
    their babies at the hands of Dr. Frank. Approximately 60 women have issued
    claims for themselves and several more actions are under investigation for
    compromised babies, and one has been commenced. These women have made
    complaints to the CPSO as far back as 2006 about Dr. Frank.

[43]

In my view, the motion judge correctly concluded
    that the seven impugned statements in the appellants statement of claim were clearly
    incapable of bearing a defamatory meaning.

[44]

Statements (i) to (iv) and (vii), quoted above,
    were purely informational and did not comment in any way on the merits of the
    ongoing litigation. The comments are neutral in their description of the
    appellant. References to the numerous women who have come forward are supported
    by the appellants own pleading, which indicates that 58 actions have been
    commenced against her. No reasonable person, who is taken to understand the difference
    between allegations and proof of guilt, could interpret these statements in the
    manner suggested by the appellant (i.e. as suggestive of her being negligent
    and/or incompetent as a physician).

[45]

The appellant effectively seeks to prohibit law
    firms from describing allegations that form the basis of potential or ongoing
    claims. If this type of statement amounted to defamation, no law firm in the
    province could ever solicit clients because they could not provide the
    necessary information for people to determine if they should consult a lawyer
    about a potential claim. The class action process, for example, would be
    effectively eviscerated if lawyers were restricted in their communications in
    the manner urged upon us by the appellant.

[46]

Statement (v), which describes the pursuit of a
    public review process rather than a private review process before the College,
    does not even mention the appellant. Rather, it simply refers to the
    respondents preferred course of action.

[47]

Statement (vi) comes from an article that
    appeared on the CTV News website. The appellants pleading and factum suggest
    that this statement is one sentence. In fact, this is a combination of two
    sentences. It also omits a number of other sentences that are found in between.

[48]

Allegedly defamatory comments must be read in
    context:
Guergis
at para. 65;
Mantini v. Smith Lyons LLP
(2003), 64 O.R. (3d) 516 (C.A.), at para. 14, leave to appeal to S.C.C.
    refused, [2003] S.C.C.A. No. 344
.
Context is important in determining
    the meaning of words and whether they are capable of being defamatory. Reading
    impugned comments in isolation is unfair and is of no assistance to the court
    in its analysis. This problem is exacerbated where, as here, the appellant has
    combined portions of different comments into one statement.

[49]

The first portion of statement (vi) reads as
    follows in the appellants statement of claim: [She] passed all of the exams
    but when [she] went out to practice, there was a problem. The appellant
    misquotes this statement in her pleading. The correct wording, found in the CTV
    news article, uses the pronoun you instead of she. When this statement is
    corrected and read in context, it is clear that the respondent Barbara Legate was
    making a general comment about why the College may impose restrictions on a physicians
    practice. To the extent that the comment can be taken to refer to the appellant
    specifically, it is again a purely factual statement about the restrictions
    imposed on her medical licence by the College.

[50]

The second part of the statement, which is found
    four paragraphs below the first part of the impugned statement in the original
    article, reads as follows in the appellants pleading:   the unfortunate
    consequence of that, we allege, is that children have been born with
    disabilities that they wouldnt otherwise have had. The words of that do not
    appear in the original quote, but appear to have been added by the appellant
    when she combined the two sentences that form statement (vi). Although not
    pleaded, the appellant also now takes issue with the first part of this
    sentence, which reads: She didnt take the steps wed expect a physician to
    take. The appellant invites us to parse this statement to conclude that the
    phrase we allege modifies only the second part of the sentence and not the
    first part. In other words, the phrase we allege relates to the consequence
    of the problem but does not qualify the existence of the problem.

[51]

Leaving aside the fact that the first part of
    the sentence, which is now the focal point of the appellants complaint, is not
    pleaded, I am of the view that the statement could not be interpreted as
    defamatory. A reasonable person who read the entirety of the sentence in issue
    would understand that Ms. Legate was merely describing the nature of the
    allegation against the appellant. This includes both the existence and
    consequences of the alleged problem. A reasonable person would not parse the statement
    in the manner suggested by the appellant.

[52]

The appellant also made various general references
    in her statement of claim to false and defamatory statements by the
    respondents. Those statements were not detailed or identified in her pleading.
    To the extent that they are different than the seven statements above, they
    cannot support a defamation claim because the appellant failed to plead the
    exact statements complained of and the details of who made them, when they were
    made and to whom:
Khan v. Canada (A.G.)
, 2009 CanLII 7090 (ON SC), at
    para. 29, affd 2009 ONCA 737, leave to appeal to S.C.C. refused, [2009]
    S.C.C.A. No. 516.

[53]

For reasons that are not clear, after striking
    the statement of claim in its entirety, and over the objection of counsel for
    the respondents, the motion judge went on to provide his opinion on whether
    the proposed amended statement of claim remedied the defects in the now struck
    statement of claim. He did not order any relief with respect to the amended
    statement of claim and did not, as noted above, make any order regarding
    whether the appellant should be granted leave to amend her claim.

[54]

I agree with the submission of the respondents
    that since the appellant did not seek leave to amend her claim or issue the

proposed
    amended statement of claim, and given that the motion judge did not order any
    relief with respect to it, his comments had no legal effect.

[55]

I do note, however, that the motion judges
    conclusion that two of the allegedly defamatory statements in the proposed
    amended statement of claim were incapable of bearing a defamatory meaning
    despite the fact that they could be interpreted in one way as commenting on
    the merits of the case and of being defamatory, appears to be an error of law.
    As this court made clear in
Guergis
, at para. 73, where the range of possible
    meanings for a statement includes one that is defamatory, it is not a clear
    case enabling the pleading to be struck. In fairness to the motion judge, he
    went on to suggest that any claim based on these statements could be struck as
    an abuse of process. In any event, his statements regarding the proposed
    amended statement of claim were clearly
obiter
and had no impact on the
    final outcome of the motion.

(iii)

Malicious Prosecution

[56]

The elements of the tort of malicious
    prosecution were summarized by the Supreme Court of Canada in
Miazga v.
    Kvello Estate
, 2009 SCC 51, [2009] 3 S.C.R. 339, at paras. 53-56, as
    follows: 1) a proceeding initiated by the defendant; 2) a proceeding terminated
    in favour of the plaintiff; 3) the defendant had no reasonable and probable
    cause to initiate the proceeding; and 4) the defendant acted with malice.

[57]

As a preliminary matter, there is an issue between
    the parties regarding whether malicious prosecution applies to civil actions and
    disciplinary proceedings. Traditionally, this tort was limited to criminal
    prosecutions and petitions to wind up a public company or a petition in
    bankruptcy. However, one Divisional Court case,
Stoffman v. Veterinary Association
    (Ontario)
(1990), 73 O.R. (2d) 737, suggests that the tort may apply to disciplinary
    proceedings. It is unnecessary to determine this issue because the pleading of malicious
    prosecution in this case can and should be struck on numerous other grounds.

[58]

First, with respect to the second element, a
    careful review of the statement of claim discloses that it does not contain a definitive
    statement that the proceedings have terminated in favour of the plaintiff. With
    respect to two of the civil actions, the appellant pleads that they are
    ongoing. The closest the appellant comes to an unequivocal statement are her
    assertions that the disciplinary proceedings have, or will, terminate in her
    favour and that the civil actions are bound to fail. I need not comment on
    the propriety of the motion judges reliance on the statement made by counsel
    for the respondents on the present stage of the actions and complaints. The
    fact is that the appellant failed to unequivocally plead that all of the
    various proceedings, or any of them, had been terminated in her favour.
    Therefore, there was no error in the motion judges finding that this element
    of the tort was not properly pleaded.

[59]

Second, the crucial element of malice was also
    not properly pleaded. There was no allegation of malice at all regarding the
    civil actions. With respect to the complaints to the College, it was pleaded
    only as one potential, alternative motivation. As the Supreme Court of Canada
    found in
Miazga
, at para. 56, malice is the key element in striking
    the balance this tort was designed to maintain between the effective
    administration of justice and the need to compensate individuals who have been
    wrongly prosecuted. The appellants statement of claim does not adequately
    plead this element.

[60]

Third, s. 36(3) of the
Regulated Health
    Professions Act, 1991
, S.O. 1991, c. 18, provides:

No record of a proceeding under this Act, a health profession
    Act or the
Drug and Pharmacies Regulation Act
, no report, document or
    thing prepared for or statement given at such a proceeding and no order or
    decision made in such a proceeding is admissible in a civil proceeding other
    than a proceeding under this Act, a health profession Act or the
Drug and
    Pharmacies Regulation Act
or a proceeding relating to an order under
    section 11.1 or 11.2 of the
Ontario Drug Benefit Act
. 1991,
    c. 18, s. 36 (3); 1996, c. 1, Sched. G,
    s. 27 (2).

[61]

The effect of this provision is that although
    reference to a complaint to the College having been made may be proven at
    trial, nothing from the record of a complaint  from the initial statement
    given by a complainant to the final order made by the tribunal  is admissible
    in a civil action, including an action for malicious prosecution. The practical
    result is that actions for malicious prosecution based on complaints to the
    College are effectively barred:
Conroy v. College of Physicians &
    Surgeons of Ontario
, 2011 ONSC 324, 329 D.L.R. (4th) 689, at paras. 51-55,
    affd 2011 ONCA 517, leave to appeal to S.C.C. refused, 432 N.R. 388;
Montgomery
    v. Seiden
, 2012 ONSC 6235, at paras. 41-42;
Forget v. Sutherland
(2000),
    188 D.L.R. (4th) 296 (Ont. C.A.), at paras. 26-39, leave to appeal to S.C.C.
    refused, [2000] S.C.C.A. No. 531.

[62]

For these reasons, I am of the view that the
    motion judge made no error in striking the malicious prosecution claim.

(iv)

Champerty and Maintenance

[63]

The entirety of the plaintiffs pleading in this
    regard is contained in the following two paragraphs from the statement of claim:

[20] The Plaintiff pleads that the assistance and encouragement
    of the Defendants provided to third parties on whose behalf the Complainants
    were submitted and actions commenced, for no lawful reason, constitutes
    maintenance and champerty. The Defendants have no motive or lawful reason to
    encourage the Complaints or actions commenced on behalf of third parties, and
    have entered into agreements with these third parties to share in the proceeds,
    if any of the litigation.

[21] As a result the Plaintiff has suffered, and will continue
    to suffer, damages as a result of the Defendants actions, the full extent of
    which will be provided prior to trial.

[64]

In
McIntyre Estate v. Ontario (Attorney
    General)
(2002), 61 O.R. (3d) 257 (C.A.), OConnor A.C.J.O. noted, at
    para. 25, that the torts of champerty and maintenance continue to be actionable
    upon proof of special damage. Associate Chief Justice OConnor undertook a
    thorough review of the development of these torts in Canada and England. He discerned
    four general principles from this review of the common law, at para. 34:

-

Champerty is a subspecies of maintenance.
    Without maintenance, there can be no champerty.

-

For there to be maintenance, the person
    allegedly maintaining an action or proceeding must have an improper motive,
    which motive may include, but is not limited to, officious intermeddling or
    stirring up strife. There can be no maintenance if the alleged maintainer has a
    justifying motive or excuse.

-

The type of conduct that has been found to constitute
    champerty and maintenance has evolved over time so as to keep in step with the
    fundamental aim of protecting the administration of justice from abuse.

-

When the courts have had regard to statutes such
    as the
Champerty Act
and the
Statute
    Concerning Conspirators
, they have not interpreted those
    statutes as cutting down or restricting the elements that were otherwise
    considered necessary to establish champerty and maintenance at common law.

[65]

With these principles in mind, I turn to the
    champerty and maintenance pleading in the present action.

[66]

I disagree with the motions judges conclusion
    that the pleading is deficient because it does not specifically allege that the
    respondents improperly stirred up litigation that would not otherwise have been
    pursued or that they brought baseless claims as a form of intimidation. Such an
    explicit plea is not necessary as it is possible to ascertain, with a liberal
    consideration of the pleading, that the respondents are alleged to have encouraged
    litigation with improper motives.

[67]

Notwithstanding the foregoing, I conclude that
    the motion judge did not err in striking the champerty and maintenance claim.

[68]

First, it is not possible to make a claim for
    champerty, which requires the maintainer to share in the profits of the
    litigation, with respect to complaints made to the College. Damages cannot be
    awarded in those proceedings. Consequently, there are no profits to share. I am
    also aware of no case law, and the appellant has not provided the court with
    any, where a maintenance claim has been made regarding complaints to a
    regulatory body.


[69]

Second, I also agree with the submission of the
    respondents that the claim was premature, since none of the underlying actions or
    complaints had been concluded at the time the claim was issued.

[70]

Other than a passing reference in
Lorch v.
    McHale
(2008), 92 O.R. (3d) 305 (S.C.), at para. 34, affd 2009 ONCA 161,
    there is no Ontario case law that addresses the issue of whether a claim for
    champerty and maintenance can be asserted prior to the conclusion of the
    underlying action.

[71]

In
Oldford v. Canadian Broadcasting Corp
.,
    2004 NSSC 105, 223 N.S.R. (2d) 380, Coughlan J. dealt with the issue squarely.
    He concluded that a claim for maintenance is not actionable without proof of
    actual loss. Actual loss will not be incurred if the maintainer is successful
    in the underlying action. On that basis, he struck a claim for champerty and
    maintenance regarding an underlying claim that had not been concluded.

[72]

Justice Coughlan thoroughly reviewed the English
    authorities that address this point. He placed considerable reliance on the
    reasoning of Lord Shaw and Lord Phillimore in
Neville v. London Newspapers
    Ltd
.
, [1919] A.C. 368 (H.L.). While Coughlan J. recognized that the
    two majority decisions in
Neville
were divided on the issue of whether
    unsuccessful litigants can later make a claim for champerty and maintenance, he
    ultimately concluded that they could not.

[73]

I agree with Coughlan J.s analysis on this
    issue. There can be no champerty or maintenance if the maintainer
has a justifying motive or excuse. As stated by Lord Phillimore in
Neville,
at p
. 433, 
the justification
    or excuse is to be found in the righteousness of the suit and the proof of its
    righteousness is its success. It follows that the lawfulness of a defendants
    position in maintaining litigation can only be determined once the litigation
    has concluded.

[74]

As noted in
McIntyre
at para. 47, the
    public policy animating the law of champerty and maintenance has always been to
    protect the administration of justice from abuse. In those instances where our
    judicial system is being abused, it is only fair that the aggrieved party is
    entitled to compensation. But where the underlying action or defence is a valid
    and legitimate use of the court system, there can be no damages based on these
    causes of action.

[75]

An action for champerty and maintenance that precedes
    the conclusion of the underlying action puts the cart squarely before the
    horse. Moreover, the premature use of these torts is abusive to the
    administration of justice because it serves to obstruct the prosecution of
    legitimate claims and defeat the assertion of valid defences. This, of course,
    is contrary to the public policy rationale for these torts.

(v)     Intentional
    Interference with Economic Relations

[76]

The gravamen of the appellants claim for
    intentional interference with economic relations is that the respondents
    improperly and maliciously intended to interfere with her practice and ensure
    that she could not work as a physician. The appellant relies upon the fact that
    the respondents have commenced at least 58 civil actions against her. She also
    pleads that through advertisements, statements and misrepresentations, the
    respondents solicited third parties and made various misrepresentations to
    induce them to commence unmeritorious civil actions and complaints to the
    College regarding the appellant.

[77]

The appellant pleads that these actions were intended
    to injure [her], or that the unlawful or illegal actions of the Defendants
    were directed against [her]. The appellant pleads that but for the
    advertisements, statements and misrepresentations, the legal proceedings
    against her, or a vast majority of them, would not have been commenced. Finally,
    the appellant pleads that she has suffered economic loss as a consequence of this
    conduct by the respondents.

[78]

The motion judge struck this portion of the
    claim on the grounds that the allegations are unspecified and are inconsistent
    with the Supreme Court of Canadas narrow definition of this tort in
A.I.
    Enterprises Ltd. v. Bram Enterprises Ltd
.
, 2014 SCC 12, [2014] 1
    S.C.R. 177. The motion judge also found that, to the extent that the pleadings
    rely on confidential communications between the respondents and their clients,
    the appellant relied on inadmissible facts. Consequently, the claim should be
    struck pursuant to rule 25.11.

[79]

In
A.I. Enterprises
, Cromwell J. extensively
    reviewed the history and elements of intentional interference with economic
    relations, which is also referred to as, among other names, the unlawful means
    tort. He traced the development of the tort and considered the state of the
    law in various common law jurisdictions. Justice Cromwell concluded that this
    tort should be restricted to three-party situations in which the defendant
    commits an unlawful act against a third party and intentionally causes economic
    harm to the plaintiff through that act. Unlawful conduct is limited to conduct that
    is actionable by the third party or would have been actionable if the third
    party suffered loss. The defendant must intend to cause injury to the plaintiff
    as an end in itself or as a means of achieving an ulterior motive (e.g.
    enriching itself):
A.I. Enterprises
, at paras. 5 and 95.

[80]

For the following reasons, I agree with the
    conclusion of the motion judge that the claim for damages for intentional
    interference with economic relations should be struck because it was not
    pleaded properly.

[81]

First, the appellants plea is equivocal, as it
    states that the respondents intention was to injure
or
the actions were
    directed against the plaintiff. This pleading does not meet the narrow
    definition of the tort adopted by the Supreme Court of Canada. It is not enough
    to plead that the actions of respondents were directed at the appellant. The
    respondents must have intended to injure her.

[82]

Second, the unlawful means alleged are not
    clear. Whatever they may be, they would have to be actionable by the appellants
    patients against the respondents. Defamatory statements about the appellant
    made in private or in advertisements or solicitations would not be actionable
    by the patients. It is possible that misrepresentations to the clients could be
    actionable, but the alleged misrepresentations are never specified or described
    in any level of detail in the statement of claim.

[83]

Third, and in any event, I also agree with the
    finding of the motion judge that in order to understand the nature of the
    misrepresentations and whether the clients relied upon them, the appellant would
    need to lead evidence of the privileged communications between the respondents
    and their clients. Consequently, this claim was properly struck under rule
    25.11 as it relies on inadmissible evidence.

(vi)    Intentional
    Infliction of Mental Distress

[84]

I agree with the conclusion of the motion judge
    that the brief reference to this tort in the pleading was so vague that a
    defendant who read it would have no idea what conduct was being alleged against
    them. There were no specified allegations in the appellants pleadings. I see
    no error in the motion judges decision to strike this part of the claim.

(vii)   Punitive
    Damages

[85]

The motion judge, relying upon
Research
    Capital
, struck the claim for punitive damages on the ground that it was
    pleaded in a conclusory manner with insufficient particulars. The appellants
    contention that the motion judge erred in law by relying on that case because it
    involved a breach of contract is untenable. This case was cited for the general
    proposition that claims for punitive damages must be pleaded with some degree
    of particularity. The fact that the case involved a breach of contract does not
    make it distinguishable on this rather uncontroversial legal point.

[86]

The wording of the claim for punitive damages in
    the present case was pure boilerplate and contrary to the admonition of Binnie J.
    in the seminal case
Whitten v. Pilot Insurance Co
.
, 2002 SCC
    18, [2002] 1 S.C.R. 595, at para. 87, over ten years ago, that claims for
    punitive damages must be pleaded with particularity and that boilerplate
    language is conclusory rather than explanatory. It is not sufficient, as the
    appellant submits, to simply reference the aforesaid conduct described in the
    remainder of the pleading to support a claim for punitive damages.

[87]

I see no basis to interfere with the motion
    judges finding that the claim for punitive damages should be struck.

(viii)  Abuse
    of Process

[88]

Even if the statement of claim had properly
    pleaded tenable causes of action, it should have been struck as an abuse of
    process.

[89]

In my view, the statement of claim, which I
    hasten to add was not drafted by counsel on the appeal, is an abuse of process.
    It is a collateral attack on the civil lawsuits against the appellant and the complaints
    to the College. It appears to be designed to frustrate those processes and deny
    the appellants patients redress before the courts and the College. I reach
    this conclusion for the following reasons.

[90]

First, the appellant asserted causes of action
    (i.e. malicious prosecution and champerty and maintenance) that were clearly
    premature as no underlying action or complaint had been resolved, let alone in
    her favour.  She attempted to

evade this issue by asserting in the
    statement of claim that proceedings were or could in the future be decided in
    her favour. She then attempted to rely on this statement to argue that the
    motion judge must accept that she had met this part of the test for a malicious
    prosecution claim.

[91]

Second, the appellants malicious prosecution
    claim was willfully blind to the clearly established case law and s. 36(3) of
    the
Regulated Health Professions Act, 1991
, which make it clear that an action for malicious prosecution was
    unavailable in the circumstances
.

[92]

Third, the intentional interference with
    economic relations claim necessarily involved the disclosure of privileged solicitor
    and client communications related to ongoing litigation against the appellant.
    It is hard to imagine that the appellant in good faith actually believed that
    this claim could proceed while the complaints against her were outstanding.

[93]

Fourth, the assertion of multiple poorly pleaded
    causes of action was a transparent effort to dress up a libel claim that had no
    chance of success.

[94]

For these reasons, I find that it would be an
    abuse of the courts process to permit the appellants claim to continue.

DISPOSITION

[95]

For the foregoing reasons, I would dismiss the
    appeal. The respondents, as the successful parties, are entitled to their costs
    of the appeal, which I would fix at $12,500.

Released: September 18, 2015 PL

C.
    W. Hourigan J.A.

I
    agree P. Lauwers J.A.

I
    agree G. Pardu J.A.


