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CIVIL PROCEDURE - Pleadings - Striking out pleadings or allegations

Thursday, January 31, 2019 @ 8:51 AM  

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Appeal by Chatha from the summary dismissal of his negligence claim against the respondent lawyer without leave to amend. The respondent notarized an affidavit that was later relied on by a journalist in writing an article about the appellant. The affidavit alleged the appellant had offered to pay for the affiants’ memberships during the Conservative Party of Canada’s leadership race. After the article was published, the appellant sued the respondent and several others for defamation. He amended his claim once it was determined he had missed the limitation period for the defamation claim, to allege the respondent was negligent in notarizing the affidavit. The motion judge found the claim did not disclose a cause of action. The motion judge found the respondent owed no duty of care to the appellant to ensure the accuracy of the affidavit.

HELD: Appeal dismissed. The respondent owed no duty to the appellant to verify the accuracy of the information contained in the affidavit. There was insufficient proximity between the parties to ground a duty of care based on the allegation the respondent failed to identify the affiants. The claim in negligence could not succeed. The motion judge did not err in striking the claim without leave to amend. The negligence claim was merely the defamation claim dressed up to avoid a limitation period.

Chatha v. Johal, [2018] O.J. No. 6437, Ontario Court of Appeal, R.J. Sharpe, K.M. van Rensburg and C.W. Hourigan JJ.A., December 6, 2018. Digest No. TLD-January282019008