Litigation Privilege

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Date Retrieved:	2025-08-05
CLNP Page ID:	2520
Page Categories:	[Legal Principles]
Citation:	Litigation Privilege, CLNP 2520, <https://rvt.link/g5>, retrieved on 2025-08-05
Editor:	Sharvey
Last Updated:	2025/07/31

Rahman v. Elia Associates, 2025 ONCA 16 (CanLII)

[3] The motion judge struck the appellant’s claim pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The appellant challenges this ruling on appeal.

[4] We see no error in the motion judge’s approach. He applied the governing principles, assuming the pleaded facts to be true for the purposes of the analysis. He found that the appellant’s claim disclosed no reasonable cause of action and could not possibly succeed. This conclusion was unassailable.

[5] Regarding the claim of fraud, the respondents were solicitors representing an opposing party in litigation. Any statements made by the respondents for the purpose of litigation, in the ordinary course of litigation or in documents properly used and regularly prepared for use in the litigation, were the subject of absolute privilege: Salasel v. Cuthbertson, 2015 ONCA 115, 124 O.R. (3d) 401, at para. 35; see also Kokic v. Johnson, 2025 ONCA 4, at para. 7. The rule of absolute privilege extends also to communications made by counsel prior to the commencement of proceedings, that (i) directly concern actual contemplated litigation and (ii) are intimately connected with, made for the purpose of, preparatory to, or incidental to the commencement of proceedings: Salasel, at para. 36. In addition, the immunity of absolute privilege is not limited to actions for defamation: Salasel, at para. 38; see also Kokic, at paras. 1-2, 7.

[6] Here, the statements alleged by the appellant to be fraudulent were made during ongoing litigation or for the purpose of actual contemplated litigation. The statements, made by the respondents on behalf of their clients, were about the very dispute that gave rise to the court proceedings. Therefore, the motion judge correctly ruled that absolute privilege was a complete defence to the allegations of fraud. As he held: “statements made by a solicitor in pleadings or documents filed with the court in a judicial proceeding or in submissions to the court are not actionable.”

[7] The motion judge also found that, even absent absolute privilege, the claim could not succeed because the appellant failed to plead all of the constituent elements of fraud. For example, the appellant’s pleading referred in general terms to “loss” but failed to particularize the details of any loss allegedly caused by fraud. Nor did the pleadings allege reliance on the statements alleged to be fraudulent. We see no error with this aspect of the motion judge’s decision.