Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff alleged defamation based on an email sent by opposing counsel regarding an affidavit of service.

• Defendants asserted the email was factually accurate, thus invoking the defence of justification.

• The communication was not published to a third party since it was only shared internally with a legal assistant.

• Absolute privilege protected the email, as it was made during the ordinary course of litigation.

• The plaintiff’s claim was dismissed as frivolous and vexatious under Rule 2.1.01 of the Ontario Rules of Civil Procedure.

• The court emphasized proportionality and procedural efficiency, using case conference powers to dismiss the matter without leave to amend.

Facts of the case

Dr. Don Shachar Avidar, acting as a self-represented litigant, brought a claim against Amy Block, a partner at the law firm WeirFoulds LLP, and the firm itself. The dispute stemmed from a series of emails exchanged in the context of a different legal proceeding, where Ms. Block was counsel for certain defendants. Dr. Avidar alleged that Ms. Block initially agreed to accept service of a Statement of Claim on behalf of several defendants but later stated that an affidavit of service he filed was inaccurate. He claimed this statement was defamatory, impugning his integrity and causing reputational harm, emotional distress, and strategic disadvantages in litigation. He sought general and aggravated damages of $125,000 each, along with a judicial affirmation that his affidavit was truthful.

The defendants moved to dismiss the claim under Rule 2.1.01 on the basis that it was frivolous, vexatious, or an abuse of process. The court convened a case conference to examine the surrounding circumstances and communications, including the role of Ms. Debra Hurst, who had received a copy of the email in question. It was established that she was Ms. Block’s legal assistant.

Court’s analysis and findings

The court found that the plaintiff had selectively quoted emails and failed to consider their full context. Ms. Block had clearly stated she could only accept service on behalf of specific parties affiliated with the Royal College of Dental Surgeons of Ontario, and not others such as the Health Professions Appeal and Review Board or the Ministry of Health. Despite this, the plaintiff filed an affidavit of service stating that she had accepted service on behalf of all named defendants. The March 17 email from Ms. Block clarifying the scope of her authority, which the plaintiff claimed was defamatory, was accurate and reflected earlier communications.

The defence of justification was accepted, as the allegedly defamatory statement was true. The court also held that the email had not been published to a third party. Since Ms. Hurst was Ms. Block’s assistant, the communication fell within internal professional correspondence and therefore did not meet the publication requirement for defamation.

Further, the court ruled that the statement was protected by absolute privilege. This doctrine shields communications made in the context of legal proceedings, including preparatory exchanges regarding service of documents. The court emphasized that such protection is essential to ensure that lawyers can advocate and clarify procedural matters without fear of litigation from opposing parties.

Outcome

The court dismissed the claim in its entirety as frivolous and vexatious. It exercised its discretionary powers at the case conference to do so, citing both parties’ agreement on the factual record and the need to ensure procedural efficiency. The plaintiff was not granted leave to amend. The dismissal was grounded on multiple bases, including the truth of the communication, lack of publication, and the protection afforded by absolute privilege.