



COURT OF APPEAL FOR ONTARIO

CITATION: Chatha v. Johal, 2018 ONCA 990

DATE: 20181206

DOCKET: C65233

Sharpe, van Rensburg and Hourigan JJ.A.

BETWEEN

Randeep
    (Ron) Singh Chatha

Plaintiff

(Appellant)

and

Satinder
    Kaur Johal
, Akashdeep Rana, Uminder Singh, Jaskaran Singh,

Satnam Singh, John Doe Number 1, and John
    Doe Number 2

Defendants

(
Respondent
)

Paul Morrison and William Main, for the appellant

Allison Speigel and Timothy Morgan, for respondent

Heard: October 29, 2018

On appeal from the order of Justice Robert J. Nightingale
    of the Superior Court of Justice, dated March 15, 2018.

Hourigan J.A.:

A.

Overview

[1]

The respondent, Satinder Johal, notarized an affidavit
    that was later relied upon by a journalist in writing an article about the
    appellant. As a result of the publication of the article, the appellant sued the
    respondent and a number of parties asserting various causes of action,
    including defamation. However, it soon became apparent that he had missed the
    limitation period for a defamation claim. Consequently, the appellant amended
    his statement of claim to allege that the respondent was negligent in
    notarizing the affidavit. That claim was struck without leave to amend on a
    Rule 21 motion on the ground that it did not disclose a cause of action. These
    reasons explain why I would dismiss the appeal of the motion judges order.

B.

Facts

[2]

This case took place against the backdrop of the recent
    leadership race in the Conservative Party of Canada (the CPC). The appellant
    was affiliated with the candidacy of Kevin OLeary; the respondents father was
    affiliated with the candidacy of Maxime Bernier.

[3]

On March 19, 2017, the respondent notarized an
    affidavit that was sworn by six affiants (the Affidavit). Within the body of
    the Affidavit an allegation was made that the appellant, in violation of the
    rules of the CPC, offered to pay for the affiants memberships in the party.
    The text of the Affidavit in its entirety is as follows:

I WAS APPROCHED [
sic
]
    BY RON CHATHA FROM THE KEVIN O LEARY TEAM TO PROVIDE NAME AND ADDRESS FOR MY
    SELF AND FRIENDS. SO THEY COULD SIGN UP FOR THE CONSERVATIVE PARTY OF CANADA
    NOT TO WORRY ABOUT THE FEES AS THEY WILL TAKE CARE OF IT. BUT I DISCUSSED WITH
    MY FRIENDS THEY SAID THEY HAD TO PAY FOR THE MEMBERSHIP SO WE DECIDED NOT [
sic
]
    SIGN UP FOR MEMBERSHIP.

[4]

The Affidavit was provided to a journalist at The Globe and Mail. It
    formed part of a story published on March 19, 2017, which repeated the
    allegation that the appellant offered to purchase memberships for the affiants.
    The opening paragraph of that story read:

A signed affidavit provided to The
    Globe and Mail alleges that one of the conservative leadership candidate Kevin
    OLearys key organizers in the Sikh-Canadian community in Brampton, Ont.,
    offered to pay for party membership  a clear breach of party rules.

[5]

The appellant issued a statement of claim on July 11, 2017, wherein he
    sued the respondent and the deponents of the Affidavit in defamation,
    publication of injurious falsehoods, and abuse of process. With respect to the
    respondent, there was a plea that she knew or ought to have known that she was
    commissioning a false Affidavit, an act which would clearly be considered
    professional misconduct under the
Rules of Professional Conduct
of the
    Law Society of Upper Canada.

[6]

On August 16, 2017, the respondent delivered a demand for particulars
    that asked, among other things, when and how the appellant first became aware
    of the article.  In an initial response to the demand for particulars, the
    appellant advised that he first became aware of the article prior to
    publication, when he was asked to comment on the story by the journalist
    writing it. Counsel for the appellant clarified on December 11, 2017, that his
    client first became aware of the published article when it became available
    online on March 19, 2017.

[7]

In his initial response to the demand for particulars, the appellant also
    advised that four of the deponents had sworn additional affidavits wherein they
    denied ever meeting him or participating in the activities described in the
    Affidavit. Further, the appellant advised that two of the deponents had sworn additional
    affidavits wherein they stated that they did not swear the Affidavit and never
    met him or the respondent.

[8]

There does not appear to be an issue between the parties that, given
    when the appellant became aware of the article, his defamation claim was
    statute barred. As a consequence of that fact, on January 16, 2018, the
    appellant served the respondent with an amended statement of claim (the
    Amended Claim). In this document, the claim for defamation was removed and,
    in its place, a claim for negligence was added. It is alleged that the respondent
    was grossly negligent in her professional duties as a licensed lawyer in the
    preparation and/or swearing of the Affidavit. Further, it is alleged that she
    failed to meet the standard of a competent, responsible and prudent
    professional in the circumstances.

[9]

The respondent brought a motion to strike the Amended Claim. The motion
    judge found, among other things, that the appellant had failed to plead a duty
    of care or plead that there was sufficient proximity between the appellant and
    the respondent to ground a duty of care. Further, the motion judge found that
    the respondent, as a lawyer preparing and swearing an affidavit, owed no duty
    of care to the appellant to ensure its accuracy. The motion judge explicitly
    found that the negligence claim was merely a dressed-up version of the
    defamation claim that was no longer pled and is statute barred.

[10]

In
    the result, the negligence claim was struck. Given the existence of what the
    motion judge considered to be incurable defects in the Amended Claim, leave to
    amend was not granted.

[11]

After
    commencing this appeal, the appellant provided this court with a draft amended
    statement of claim (the Draft Amended Claim). The purpose of this document
    presumably is to remedy the defects in the Amended Claim. As will be discussed
    below, this new pleading includes, among other things, a plea that there is
    sufficient proximity between the parties to establish a duty of care.

C.

analysis

[12]

In
    providing his Draft Amended Claim the appellant has effectively conceded that
    the motion judge did not err in striking the Amended Claim. The real issue in
    this appeal is whether the claim in negligence is so fundamentally defective
    that the motion judge was correct in denying leave to amend.

[13]

Counsel
    for the appellant submits that the motion judges analysis was flawed because
    there was no consideration of Ms. Johals duties as a notary, as opposed to her
    duties as a lawyer. In so doing, the appellant submits that the motion judge
    failed to appreciate his actual argument  namely, that the respondent, in her
    capacity as a notary, owed him a duty of care. The appellant argues that the
    duties owed by a lawyer acting as a notary are different from the duties owed
    by a lawyer acting as a lawyer. A lawyer provides advice, legal representation
    and legal services to a client. The duties of a notary include verifying the
    identity of the affiant, the place and time of swearing, and that the affiant
    actually swears that the contents of the affidavit are true.

[14]

I
    am not persuaded by this argument.  The Amended Claim contained multiple
    allegations made against the respondent in her capacity as a lawyer, including
    an allegation that she drafted the Affidavit. The motion judge properly
    considered those allegations as part of his duty of care analysis.

[15]

I
    do accept the respondents submission that the proper analytical approach in
    reviewing the issue of duty of care is to examine each of her impugned actions
    to determine whether they can support a claim for negligence. Counsel for the
    respondent identified four categories of allegations, which I adopt for the
    purposes of my analysis.

(1)

The respondent knew the Affidavit contained false evidence

[16]

First,
    are allegations that the respondent acted negligently because she prepared and
    notarized the Affidavit, knowing that it contained false evidence. A related
    claim is that the respondent knowingly allowed one or more imposters to execute
    the Affidavit. An allegation that a party knowingly took certain actions cannot
    form the basis of a claim in negligence, as one of the primary functions of
    negligence law is to compensate accidental victims: Allen M. Linden & Bruce
    Feldthusen,
Canadian Tort Law
, 10th ed. (Toronto: LexisNexis Canada,
    2015), at p. 117-18. The appellant does not assert any claim based upon an
    intentional tort. Therefore, the motion judge properly struck these allegations
    without leave to amend.

(2)

The Affidavit was not in a proper format

[17]

Second,
    are allegations that the respondent acted negligently because the Affidavit was
    not in a proper format. Certainly, there can be no doubt that the Affidavit
    does not comply with the requirements of r. 4.06 of the
Rules of Civil
    Procedure
,
R.R.O. 1990, Reg. 194, for filing in a court. However,
    it cannot be credibly asserted that had the Affidavit been in a proper format,
    the reporter for The Globe and Mail would have been less inclined to accept it
    for use in the story he was preparing. Indeed, the obverse might be true. 
    Again, the motion judge did not err in striking these allegations without leave
    to amend.

(3)

The respondent failed to verify the truth of the contents of the
    Affidavit

[18]

Third,
    are allegations that the respondent acted negligently because she failed to
    verify that the contents of the Affidavit were true and accurate. However, the
    jurisprudence establishes that a lawyer does not owe a duty to third parties to
    verify the accuracy of the information contained in an affidavit he or she
    drafts or commissions
:
Piccolotto v. Kanhai
, 2015 ONSC 4807, at
    paras. 14-16;
Gerling Global General Insurance Co. v. Siskind
,
Cromarty
,
Ivey & Dowler
(2002), 59 O.R. (3d) 555 (S.C.), at paras. 15-16.

[19]

There
    are good policy reasons for this, including that imposing such a duty of care
    could potentially place a lawyer in a conflict of interest with his or her
    client. In addition, as a practical matter, it would make even the routine
    swearing of affidavits a time consuming and prohibitively expensive
    proposition. In my view, this jurisprudence is persuasive and the duties of a lawyer
    or notary when commissioning an affidavit should not be expanded as urged upon
    us by the appellant.

(4)

The respondent failed to identify the affiants

[20]

Fourth,
    are allegations that the respondent acted negligently when she failed to
    identify the affiants before notarizing the Affidavit. In support of these
    allegations, the respondent relies on
Gerling
where Nordheimer J. (as
    he then was) stated at para 16:

The representations which the
    lawyer makes in commissioning the document are limited to the identity of the
    deponent, the place and time when the document is sworn and that the deponent
    has sworn that the contents of the document are true. If any of those
    representations should subsequently turn out to be untrue, inaccurate or
    misleading then the issue will become one of whether the lawyer was negligent
    in the manner in which he confirmed those representations. For example, if a
    lawyer commissioned a deponents affidavit without making reasonable inquiries
    to determine the identity of the deponent, then the lawyer might be liable in
    negligent misrepresentation to a party who relied on the document if it
    subsequently transpires that the person who swore the document was not, in
    fact, the named deponent.

[21]

That
    case leaves open the possibility that a notary/lawyer could be held liable to a
    third party for not fulfilling his or her duties in verifying the identity of
    an affiant and/or not having the affiant present when an affidavit is executed.
    No case law has been provided where such a claim has been asserted. In the
    present case, as noted above, there is an allegation in the response to the
    demand for particulars that two of the affiants deny meeting the respondent and
    executing the Affidavit.

[22]

This
    is a novel cause of action and in order to determine whether a duty of care
    arises based on this allegation, it is necessary to conduct the analysis
    mandated by
Anns v. Merton London Borough Council
, [1977] UKHL 4, [1978] AC 728
.
    This test has been adopted by the Supreme Court of Canada in
Odhavji Estate
    v. Woodhouse
, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 52, and can be paraphrased
    as follows:

(1) To establish a
prima facie
duty of care the
    plaintiff must prove that:

(a) the harm complained of is a reasonably foreseeable
    consequence of the alleged breach and;

(b) there is sufficient proximity between the parties that
    it would not be unjust or unfair to impose a duty of care on the defendants.

(2) Before a duty of care will be
    recognized, there must not be reasons to limit any
prima facie
duty
    based on policy considerations.

[23]

In
    my view, leaving aside the issue of foreseeability, there is insufficient
    proximity between the appellant and the respondent to ground a duty of care. I
    reach that conclusion for the following three reasons.

[24]

First,
    as the Supreme Court of Canada noted in
Odhavji
, at paras. 48-50, when
    assessing proximity a court may examine, among other things, the expectations
    of the parties, representations, reliance, and the nature of the property or
    interest involved. In the present case, there was no allegation that the
    respondent made any representation to the appellant or that there was any
    reliance on the part of the appellant. In fact, the opposite is true. None of
    the hallmarks of proximity relied on by our courts are present and there is
    nothing in the circumstances of this case that would suggest that it is reasonable
    or fair to impose a duty.

[25]

Second,
    in the Draft Amended Claim, at para. 14.1, the appellant pleads that there is
    sufficient proximity because:

(a)

the Plaintiff was well-known to this Defendant;

(b)

this Defendant was  a member of the same political and ethnic community
    in Brampton, Ontario;

(c)

the father of this Defendant was a political adversary of the Plaintiff;
    and

(d)

this Defendant herself had an acrimonious relationship with the
    Plaintiff.

[26]

The
    plea that the appellant and the respondent have an acrimonious relationship
    militates against a finding that they are in a relationship of proximity. It
    highlights that they are adverse in interest, which suggest some form of
    intentional wrongdoing and is inconsistent with negligence and the notion of
    legal proximity.

[27]

Third,
    the case relied upon by the appellant in support of its claim in negligence,
Tondera
    v. Vukadinovic
,
2011 ONCA 596, demonstrates the flaw in the
    appellants argument. In
Tondera
, the appellant affiants claimed that
    the respondent lawyer, acting in her capacity as a notary, owed them a duty of
    care when she signed an affidavit in their absence, without ensuring their
    understanding of the document. In setting aside the motion judges decision to
    strike the claim, this court held that the lawyer may owe a duty of care to the
    affiants in these circumstances, but that evidence would be required to
    determine the matter.

[28]

In
    the case at bar, it is arguable that the affiants of the Affidavit, like the
    appellants in
Tondera
, could assert a negligence claim against the
    respondent. The relationship between the respondent and the affiants has the
    hallmarks of proximity, including reliance and a reasonable expectation of the
    affiants that the respondent would properly exercise her duty as a
    notary/lawyer. Those elements are absent in the relationship between the
    appellant and respondent.

(5)

Conclusion: A claim in negligence cannot succeed

[29]

In
    summary, a claim in negligence against the respondent cannot succeed and,
    accordingly the motion judge did not err in striking the claim without leave to
    amend. The gravamen of the appellants claim is really that the respondent
    participated in making false claims against him that found their way into a
    newspaper story. These actions might ground a claim in defamation or injurious
    falsehood; they do not form the basis for a negligence claim.  In this regard,
    I agree with the comments of the motion judge that the negligence claim is
    merely a defamation claim dressed up to avoid a limitation period.

D.

disposition

[30]

I
    would dismiss the appeal and award the respondent her costs of the appeal,
    fixed in the all-inclusive amount of $11,500.

Released: C.W.H. December 6, 2018

C.W.
    Hourigan J.A.

I
    agree. Robert J. Sharpe J.A.

I
    agree. K. van Rensburg J.A.


