Executive Summary: Key Legal and Evidentiary Issues

• Plaintiffs sued opposing counsel alleging suppression of documents relevant to an ongoing corporate dispute involving Axion Ventures Inc.

• Claims included intentional interference with economic relations, fraudulent misrepresentation, civil conspiracy by unlawful means (spoliation of evidence), and abuse of process against the Defendant Lawyers.

• Defence applied under Rule 9-5(1) to dismiss the claim on grounds it disclosed no reasonable cause of action due to counsel immunity.

• Public policy immunity protects lawyers from private law claims for acts and statements made in service of their clients during litigation.

• Negligence claims were conceded by plaintiffs as opposing counsel owes no duty of care to the adverse party.

• The court found all allegations fell within the scope of protected conduct, striking the amended notice of civil claim.

Background of the corporate dispute

John Todd Bonner was the CEO and a director of Axion Ventures Inc., a publicly traded company, until July 2020. His wife, Nithinan Boonyawattanapisut (referred to as "Jess"), is or was a major shareholder in Axion either directly or indirectly. When Bonner was fired by the board of directors on July 14, 2020, he was immediately locked out of his access to Axion's email and other records, including Axion's Google G-Suite. This event commenced a proxy battle for control of Axion. The Defendant Lawyers—Whitelaw Twining LLP, Patrick Sullivan, Sara Shuchat, and Sam MacDonald—have acted as counsel for Axion and related parties since July 2020. There have been twenty written decisions across at least three proceedings: an oppression claim by the Bonner Plaintiffs, a conspiracy claim by Axion against the Bonner Plaintiffs alleging they stripped Axion of valuable assets (the "Axion Claim"), and a debt claim brought by the Bonner Plaintiffs and others against Axion and related parties (the "NextPlay Debt Claim").

The plaintiffs' allegations against opposing counsel

The Bonner Plaintiffs alleged that, in the face of Axion having destroyed access to the G-Suite of documents, from September 2020 through January 2025 the Defendant Lawyers did not seek or request documents from Axion's former general counsel, Mr. Rollins, or from other potential document holders. In February 2025, just before the start of the trial, the Defendant Lawyers obtained the laptop computer owned by Mr. Rollins, which contains saved copies of Axion documents and emails. The Defendant Lawyers listed and produced 314 documents, consisting primarily of emails retrieved from the laptop, but allegedly did not reveal to the Bonner Plaintiffs the existence of the laptop from which these documents were obtained. In June 2025, during the fourth month of trial, the Defendant Lawyers disclosed that they were in possession of Mr. Rollins' laptop and that the laptop contained over 19,000 emails. The 19,000 emails were ultimately disclosed in September 2025. The Bonner Plaintiffs alleged that included in these emails are documents that support their positions in both the Axion Claim regarding ownership of disputed intellectual property and the NextPlay Debt Claim regarding the existence of the debt.

Defence position on counsel immunity

The Defendant Lawyers argued that for public policy reasons, the courts have long determined that no action lies against the lawyer for the opposing party. They submitted that an absolute privilege applies to defence counsel for all things said or done, either in or out of court, in the defence of the lawyers' clients. The defence further submitted that lawyers must be free to avidly represent their own clients and cannot be limited by the fear of personal tort liability, and that if the immunity did not exist, litigation would never come to an end.

The court's analysis and ruling

Justice A. Ross accepted that Rule 9-5 provides a high bar for dismissal and further accepted that, if proven, the Bonner Plaintiffs' allegations would establish the loss of assets. However, the court determined that those elements cannot overcome the clear intention of the public policy that forms the basis of the immunity provided to counsel. The immunity clearly covers acts as well as statements, and it covers things said and done inside and outside the courtroom, if done in service of the client. The court found that the allegations in the amended notice of civil claim fit squarely within the reasoning of the cited cases, and that the immunity clearly attaches to the Defendant Lawyers. Justice Ross noted that allowing this action to proceed would become a blueprint for the next wronged party to sue the opposition counsel, which is the very underpinning of the public policy to avoid. The amended notice of civil claim was struck and the action was dismissed. The defendants were awarded lump sum costs of $2,000, which the court found to be a reasonable figure given the allegations of fraudulent conduct made and the steps taken in the matter.