Lawyers’ client entitled to rely on absolute privilege defence (Gulzar v. Pioneer Mews Inc.)

5 November 2026

Litigation can often be unkind. To win, a party will resort to everything at their disposal to paint their opponent in a bad light. Although character assassinations intended to lower the credibility and reputation of an opponent might be vigorous, aggressive and malicious, the law protects these attacks from legal action under the doctrine of absolute privilege.

As demonstrated in Gulzar v. Pioneer Mews Inc., 2026 ONSC 6049, the doctrine protects both lawyers and their clients, and is not confined to the law of defamation.

In this case, the plaintiff had brought an action in Barrie for personal injuries suffered in a slip and fall accident against Pioneer Mews Inc. (“Pioneer”). During the course of this proceeding, the plaintiff alleged that Pioneer’s lawyers had published false statements about her and had filed a fabricated email communication on a motion which sought the dismissal of the action.

Accordingly, the plaintiff commenced a second action in Ottawa for intentional torts, fraudulent misrepresentation, fabrication of evidence, abuse of process and discrimination arising out of conduct in the Barrie action against Pioneer and its lawyers. More specifically, the plaintiff pleaded, among other things:

The defendants knowingly used fabricated email communications as evidence in support of a Motion to dismiss, which was filed under false pretenses. The motion was granted without proper notice of service to the plaintiff in violation of procedural fairness.

The defendants’ conduct constitutes both civil and criminal wrongdoing, including misrepresentation and abuse of court process, which caused severe harm to the plaintiff.

The lawyers successfully obtained a dismissal of the Ottawa action against them on the grounds of absolute privilege. The court ruled that the plaintiff’s allegations related to statements made by Pioneer’s lawyers in the Barrie action and were not actionable notwithstanding the plaintiff’s assertions that fraud vitiated the defence of absolute privilege, and that the lawyers’ conduct was an abuse of process and undertaken in bad faith.

Although Pioneer also sought to have the Ottawa action against it dismissed, this was not granted.

In a subsequent ruling, the court noted that Pioneer had not, contrary to its contention, sought the dismissal of the Ottawa action under rule 2.1 of the Rules of Civil Procedure. While Pioneer contended that the Ottawa action was an abuse of process because it was duplicative of the Barrie action, the court stated that the plaintiff had never responded to this alleged aspect of relief and that it was not argued on the lawyers’ motion.

Pioneer then raised this argument before another judge, who held that the Barrie action and the Ottawa action were not the same, and that the Ottawa action was not an attempt to re-litigate the Barrie action.

While the plaintiff appealed the decision dismissing her action against the lawyers, Pioneer brought a rule 21 motion seeking the dismissal of the Ottawa action against it based on the doctrine of absolute privilege. In defence to this motion, the plaintiff argued issue estoppel.

The court found that issue estoppel did not apply because Pioneer’s rule 2.1 motion and rule 21 motion were different.

The court explained that although rule 2.1 entitled a court to stay or dismiss an action on the grounds that it wass frivolous, vexatious or otherwise an abuse of process, it was only designed to eliminate proceedings that were obviously abusive. Rule 21, which also permited a court to dismiss an action on the grounds that it is frivolous, vexatious or otherwise an abuse of process, wass more granular.

More specifically, the court further noted that whereas under rule 2.1 the court primarily assessed the face of a plaintiff’s pleading, asking whether the proceeding was obviously frivolous, vexatious or otherwise an abuse of process, rule 21 looked at the merits of a proceeding, requiring the court to take “a hard look at the factual background, and especially the position and conduct of the parties.”

The issue of whether Pioneer was entitled to rely on the doctrine of absolute privilege had not been determined by the court on the rule 2.1 motion.

With respect to Pioneer’s entitlement to rely on the doctrine of absolute privilege, the court relied on several precedents, which established that the doctrine attaches to pleadings and statements contained in the pleadings, and more broadly:

1. Statements made in the course of judicial proceedings;
2. Statements made in the course of quasi-judicial proceedings; and
3. Statements contained in documents made in judicial or quasi-judicial proceedings.

This included statements contained in an affidavit, and all evidence, whether oral or written.

Furthermore, the court noted that the defence of absolute privilege is not defeated by malice and is not confined to actions framed in defamation.

Lastly, the court cited Rasouli v. Cuthbertson, 2014 ONSC 3071, affirmed in Salasel v. Cuthbertson, 2015 ONCA 115, for the proposition that the defence applies to lawyers and their clients. The court in Rasouli stated:

What is true for the case against counsel is true for the party on whose behalf he writes the document. “The evidence of all witnesses or parties speaking with reference to the matter before the court is privileged, whether oral or written, relevant or irrelevant, malicious or not.” … It is an abuse of process to bring a proceeding that is in violation of the doctrine of absolute immunity.

Accordingly, given the previous decision to dismiss the plaintiff’s Ottawa action against Pioneer’s lawyers on the grounds of absolute privilege and the case law, the court concluded that the plaintiff’s Ottawa action against Pioneer should also be struck based on the doctrine of absolute privilege. The plaintiff’s action against Pioneer was frivolous, vexatious and an abuse of process of the court.

This case once again demonstrates that the doctrine of absolute privilege is a powerful defence, and that statements made by opposing lawyers or their clients during the course of a court proceeding, including statements that may appear to be malicious, will not support a tenable claim. Such a claim will be struck out under rule 21.

 

(This blog is provided for educational purposes only, and does not necessarily reflect the views of Gardiner Roberts LLP).