Defendants not Vicariously Liable for Actions of their Lawyer or Investigators

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The Ontario Superior Court of Justice recently rejected a plaintiff’s motion to amend their pleadings to add claims for punitive and aggravated damages against the named defendants. The claim for damages was based on the manner of surveillance undertaken by investigators and the lack of response from defense counsel when the plaintiff raised concerns about that surveillance.

The plaintiff alleges that she became aware that she was under surveillance due to overt and aggressive tactics by the surveillance company (the details of the “aggressive surveillance tactics” are not included in the decision).  Her counsel then wrote to the defendants’ counsel inquiring whether the surveillance was being performed at their behest and reminding them of the plaintiff’s fragile mental state. Counsel for the defendants did not respond to this letter. 

Associate Justice Jolley found that the proposed amendments were not tenable at law as there was no case law to support the assertion that a party can be vicariously liable in punitive damages for the actions of their lawyer. She further found that the harassment provisions of the Criminal Code relied on by the plaintiff did not apply to the defendants as those provisions apply directly to the person committing the harassing behavior (in this case the surveillance company).

Finally, Jolley, J. found that amendments of this kind, brought less than a year before the scheduled trial, would cause non-compensable prejudice to the defendants. Given that the proposed allegations centered around the conduct of defence counsel, permitting the amendment would likely require the parties to retain new counsel so that the existing counsel could be called as witnesses at the hearing.

The plaintiff was ordered to pay $10,000.00 in costs to the defendants.


Read the full decision here: Mansoor v. Dookie, 2023 ONSC 5533 (CanLII),.

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