Legal Blog

Say it Nicely

On occasion, a lawyer may write a demand letter on behalf of a client that could be categorised as perhaps a touch inflammatory. This type of letter may, on occasion, land the lawyer in hot water. For the lawyer in Kleynhans v. Zucker, a 1997 unreported decision of the Ontario Court (General Division), the water was boiling.

Nasty

The lawyer was acting for a group of claimants who alleged that the plaintiffs and their families owed monies to them. The lawyer wrote to each of them on May 24, 1996 as follows:

“Upon a detailed review of the records in this matter … it is evident to me that you have been complicit in a fraud and theft perpetrated against the above-named. Your flagrant disregard for their rights has placed you and your family in an extremely precarious position.  Unless I have the following from you … by May 29, 1996 we intend to take all steps necessary to deal with you.

I require the following:

1.  A certified cheque in the amount of 100 million U.S. dollars …

Please understand that in my view you and your associates are involved in a massive fraud. My clients are however prepared to resolve matters without the necessity of my taking steps which once started will have serious consequences.”

The plaintiffs answered this letter by commencing an action on May 31, 1996 against the lawyer. They claimed $500,000 for each of them for intentional infliction of mental and emotional suffering. They claimed an additional $100,000 for punitive damages. The plaintiffs claimed that the lawyer knew, or reasonably ought to have known, that the contents of his letter were false and sent the letter with the intent of causing severe mental and emotional suffering for the plaintiffs.

On June 13, 1996, the lawyer commenced his threatened action against the plaintiffs.

The lawyer brought a motion to strike the plaintiffs’ statement of claim on the grounds that there was no cause of action. In dealing with this type of motion, the judge may only look at the allegations contained in the statement of claim and must take them at face value.

Dilemma

The motions court judge agreed that if the plaintiffs were left with a claim for defamation only, the doctrine of absolute privilege protects a solicitor writing to a prospective opponent. However, this immunity, which is normally jealously guarded, is placed in jeopardy when the solicitor steps across the boundary of the litigation and commits an independent tortious act that would be actionable at law.

The letter did not impress the judge. He noted that the lawyer was not merely repeating instructions received from his clients. Rather, the lawyer, in his capacity as a solicitor, had reviewed in detail the available information and given his opinion that the plaintiffs were complicit in fraud. The correspondence had criminal overtones and the proposal to resolve the matter by payment of $100 million U.S. in five days was, if not impossible, improbable.

The judge stated: “The words commented upon by me above could, in my view, be capable of producing the effect protected against by the cause of action known as intentional infliction of mental and emotional suffering. Whether or not they would be found to be capable of inflicting mental and emotional suffering after all the evidence at trial is another question. At this stage in the proceedings, I cannot look beyond whether, having regard to the circumstances, they are capable of such an effect”.

The judge further found that the lawyer could not successfully argue that the action was a mere euphemism for an action in defamation. The facts supported a tort in its own right and the doctrine of absolute privilege did not apply. The judge dismissed the motion.

Moral

Watch what you allege and how you allege it.