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Posted on October 1, 2006 | Posted in Collections

Often, when lawyers are sued, the lawyer moves to strike out the pleadings as showing no reasonable cause of action. This is ultimately what happened in Joseph v. Lefaivre Investments (Ottawa) Ltd. [2006] O.J. 2364 (SCJ).

A plaintiff commenced a class action against a corporation and two individuals. The plaintiff alleged that the corporation was charging a criminal rate of interest and that the individuals knowingly received a portion of that interest and were therefore constructive trustees.

The individuals, who were acting for themselves, counterclaimed against the plaintiff and his solicitors, alleging that they conspired to injure the individuals and that the solicitors owed a duty of care to them and were therefore negligent. The solicitors moved to strike out the counterclaim.


The judge noted that there was no allegation in the conspiracy action that the conduct of the plaintiff and his solicitors was unlawful. Further, the fact that the individuals may be injured by the action against them was insufficient to support a cause of action for conspiracy; the solicitors and the plaintiff had to have, as the predominant purpose for their actions, the desire to injure the individuals. The judge therefore struck out the conspiracy claim.

The individuals also claimed that the law firm owed a duty of care to the individuals “as officers of the court in accordance with the principles of natural justice and in accordance with law.” They must have received this gibberish from the Internet, the home of all good pleadings.

The judge noted that, “a litigant does not owe a duty of care to the opposite party and for reasons of public policy inherent to the nature of the adversary process, an action in negligence by one party against a solicitor for the opposing party is not tenable in law.”

The judge struck out the entire counterclaim. She refused leave to amend the counterclaim because, in her opinion, “there was nothing the defendant could plead with respect to either branch of the claim that would result in substantial adequacy.”


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