No credible evidence that law corporation’s statements thwarted ex-articling student’s career: OCA

After her articles ended, woman filed action alleging defamation and other claims

No credible evidence that law corporation’s statements thwarted ex-articling student’s career: OCA

A former articling student presented no credible evidence to support her belief that statements made by a law corporation and its principal thwarted her career as a lawyer, an Ontario court said in a recent case.

The respondent Elia Associates Professional Corporation employed the appellant as an articling student in 2007. The individual respondent was her principal. The respondents ended the appellant’s articles after five months.

Litigation and administrative hearings followed for over a decade afterward, including the appellant’s unsuccessful complaint to the Human Rights Tribunal of Ontario (HRTO) and a licensing hearing with the Law Society of Ontario in which the individual respondent provided character evidence about the appellant.

In 2018, the appellant initiated a proceeding alleging defamation and other causes of action before the Ontario Superior Court of Justice.

The appellant claimed that the respondents committed various wrongs against her by telling the law society and others that she acted dishonestly by failing to disclose her official law school transcripts, which showed that she failed her first year of law school. She also said that the respondents made defamatory statements to unknown parties after the law society’s hearing, which prevented her from securing employment as a lawyer.

On a motion for summary judgment, Justice Susan Vella of the Superior Court dismissed the appellant’s action against the respondents. The motion judge made the following findings:

  • the respondents’ limitations defence, which was established on the record, left no genuine issue requiring trial and determined the action
  • the appellant knew about the statements that the respondents made over the course of the 2009 HRTO hearing at that time
  • the individual respondent made statements to the law society during its 2012 investigation into the appellant’s good character in her presence
  • the appellant failed to provide credible evidence that the respondents made any challenged statements after 2012
  • the appellant did not adduce evidence that the respondents’ impugned statements made her lose any potential job opportunities or otherwise impaired her career as a lawyer

Limitation period bars defamation suit

In Visic v. Elia Associates Professional Corporation, 2022 ONCA 841, the Ontario Court of Appeal dismissed the appeal.

The appellant initiated the proceeding in 2018, which was well outside the 2-year limitation period. Thus, she had the burden of presenting sufficient evidence showing a genuine issue requiring a trial regarding whether any of the factors in s. 5(1)(a) of Ontario’s Limitations Act, 2002 postponed the limitation period’s commencement, the appellate court said.

On appeal, the appellant repeated arguments that she previously made about whether she raised a genuine issue requiring trial regarding when the limitation period commenced. The Court of Appeal said that the motion judge already rejected these arguments and that the appellant failed to identify any reviewable errors in the judge’s findings, which deserved deference.

The appellant raised three preliminary or procedural issues in the judge’s decision. First, the appellant challenged the individual respondent’s refusal to appear for cross-examination. The appellate court held that this issue was not properly before the judge because the appellant failed to pursue any remedy relating to this refusal.

Second, the appellant contended that the judge should have granted her leave to amend her statement of claim. The appellate court disagreed, noting that the appellant failed to bring a motion for leave to amend or to provide a draft amended statement of claim.

Third, the appellant asserted that it was improper for the judge to hear the summary judgment motion because the scheduling endorsement only provided for a motion to strike.

The Court of Appeal rejected this argument for lack of merit. The appellate court concluded that the respondents’ decision to proceed via a summary judgment motion did not prejudice the appellant, who knew that they would be relying on a defence under the Limitations Act and knew what she would need to defend against it.

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