April 29, 2022 UPDATE – COURT OF APPEAL UPHOLDS CASE (Tewari v. McHenry, 2022 ONCA 335)
https://www.canlii.org/en/on/onca/doc/2022/2022onca335/2022onca335.html
Employee in Wrongful Dismissal Claim Cannot Sue Employer’s Lawyers. In this case, after suing his employer and some of their directors, the dismissed employee then sued the lawyers who provided legal advice and counsel to some of the directors sued in the wrongful dismissal action. The sued lawyers were successful in their motion to summarily strike the claim on the grounds that their actions were covered by absolute privilege. The employee argued that his case was novel, and that absolute privilege did not apply because the lawyers “criminally abused the judicial system” and they took advantage of him as a self-represented litigant, but the court rejected these arguments on the following basis:
“absolute privilege even applies to false or malicious statements made in pleadings and factums. Absolute privilege equally applies even if counsel in his or her words has been guilty of malice or misconduct or had an indirect motive: see 1522491 Ontario Inc. v. Stewart, Esten Professional Corporation, 2010 ONSC 727, at paras. 33 and 34.
The immunity provided to counsel pursuant to the doctrine of absolute privilege is not only against actions for liable or slander but applies to any form of civil action. As such, the Plaintiff’s claims against the Defendants for conspiracy, infliction of mental distress, breach of fiduciary obligations and defamation are barred by the doctrine of absolute privilege: see Salasel, supra, at para. 38. “
The employee’s claim also sought a suspension of the lawyer’s LSO licences, and the court pointed out that this was not something that the court could order: it is solely within the jurisdiction of the Law Society of Ontario.
Tewari v. Sekhorn, 2022 ONSC 417
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc417/2022onsc417.html