In Botosh v. Soric, 2025 ONCA 256, the Ontario Court of Appeal upheld the decision of a motion judge to strike out a civil action commenced by a plaintiff against defence counsel, investigators and a medical expert involved in an earlier personal injury lawsuit. The decision primarily addressed the doctrines of litigation immunity, abuse of process and the limits of tort liability for participants in legal proceedings.
Facts
In November 2003, the appellant sustained injuries after tripping on an uneven curb in Ottawa. She brought a personal injury claim against the City of Ottawa and several construction companies. In August 2013, the Superior Court awarded her damages in the amount of $334,184.24, along with $200,000 in costs. This judgment was not appealed.
In 2023, the appellant initiated a second action. This time, the defendants were individuals and entities that were involved in defending the original claim: the defence lawyers, the private investigators they retained and a medical expert who had performed an independent medical examination. The appellant alleged that the respondents’ conduct in the course of the first trial — including surveillance activities, expert testimony and litigation strategies — had caused her psychological harm and contributed to additional health issues.
Motion to Strike
The respondents brought a motion to strike the appellant’s claim under Rule 21 of the Rules of Civil Procedure, arguing that the claim disclosed no reasonable cause of action and constituted an abuse of process. The motion judge granted the motion, striking the claim in its entirety without leave to amend and awarding each group of respondents $7,000 in partial indemnity costs.
The motion judge held that:
- The claim constituted a collateral attack on the original judgment;
- The respondents were protected by litigation immunity;
- The conduct alleged was undertaken in the course of legal proceedings and could not ground liability; and
- Any amendments would not cure the fundamental legal deficiencies in the claim.
Court of Appeal Decision
The Ontario Court of Appeal dismissed the appeal, affirming the motion judge’s decision on all grounds. The key findings were as follows:
- Litigation immunity
The court reaffirmed that lawyers, expert witnesses and individuals engaged in litigation on behalf of a party are protected by litigation immunity for actions taken in the conduct of legal proceedings. This immunity extends to opposing counsel and their agents and precludes claims in negligence or other torts where no duty of care is owed to the opposing party.
- No duty of care
The court found that the respondents owed no duty of care to the appellant, as they were acting within the scope of their roles in defending a claim. The appellant’s arguments did not meet the threshold for any exception to this general rule.
- Collateral attack and abuse of process
The court held that the appellant’s claim constituted a collateral attack on the outcome of the 2013 judgment. The issues raised in the second claim were known — or ought to have been raised — during the original proceedings. The new action was therefore an abuse of process.
- Procedural fairness and leave to amend
The court rejected the appellant’s argument that the motion judge acted unfairly by ruling on the motion before a full evidentiary record was available. As the motion was to strike for failure to disclose a cause of action, the pleadings themselves were sufficient for the court to assess the viability of the claim. The court also upheld the refusal to grant leave to amend, finding that the defects in the claim were legal and not curable by amendment.
- Costs
The court saw no basis to interfere with the motion judge’s costs award. It further ordered the appellant to pay costs of the appeal: $3,750 to defence counsel and $5,000 each to the investigators and the medical expert.
Conclusion
The Court of Appeal’s decision in Botosh v. Soric confirms the application of litigation immunity to legal professionals and their agents and reinforces the prohibition on collateral attacks on final judgments. The ruling also emphasizes that the adversarial nature of litigation, by itself, does not ground tort liability when actions are undertaken within the lawful conduct of proceedings.
