Law Times

Law Times • January 9, 2017 Page 3 www.lawtimesnews.com Defamation claim dismissed Judge rules firm not liable for comments BY ALEX ROBINSON Law Times A judge has ruled that an Ottawa firm cannot be found vicariously li- able for a lawyer's com- ments, as she was practicing in association with the firm. Ontario Superior Court Jus- tice Annalisa Rasaiah dismissed a defamation claim against Wil- liams Litigation Lawyers, which was brought after lawyer Fay Brunning sent letters with al- legedly defamatory comments about Wallbridge Wallbridge — a partnership of lawyers with offices in northern Ontario. Brunning, who is the wife of Williams minority partner Eric Williams, sent the letters using the law firm's letterhead, but she is not an employee of the firm. She started working out of the same office with shared tele- phone and fax lines in January 2016, but her practice has been separate. In the letters, Brunning al- leged that Wallbridge Wall- bridge had been negligent in representing residential school survivors, and had been in- volved in an alleged scheme to supress evidence amounting to an obstruction of justice. Williams Litigation Lawyers filed a motion to have the claim against it dismissed via sum- mary judgment, arguing the firm could not be found liable as Brunning was not an employee and was acting independently when she sent the letters. Wallbridge contended that the firm and Brunning are a common entity equivalent to a partnership. Wallbridge also said that the law firm is in charge of who uses its letterhead and, as such, should be held lia- ble for the correspondences sent under it. However, Rasaiah found that there was no evidence that Brunning was being presented as a partner or employee of the firm and that Williams had made it clear on the letterhead that Brunning was practicing in association. Brunning's name was listed with the names of other lawyers at the top of the letterhead, but there was an asterisk beside her name with a footnote that said she was "Practicing in Associa- tion not in Partnership." "This particular set up, in my view, negates the existence or notion of a partnership and dispels the idea that her practice is one with the defendant Wil- liams," Rasaiah wrote in the de- cision, Wallbridge v. Brunning. "It is communicating there is a difference to be noted. It is communicating I am not in control of or have an ownership interest in the defendant Wil- liams," she added. In her analysis, Rasaiah cited Bazley v. Curry, a Supreme Court of Canada decision that found there must be an employ- ment relationship between the individual and the entity, or that their relationship is sufficiently close. It also found that in order to prove vicarious liability, the plaintiff must show that the tort in question is sufficiently con- nected to the individual's as- signed tasks. Rasaiah found that Brun- ning's actions were not suffi- ciently close to the law firm to justify a finding of vicarious li- ability and that there was no ev- idence to show the letters were written in relation to any tasks given to Brunning by the firm. Rasaiah said that even if practicing in association creates the appearance of collective en- terprise, "the analysis does not stop there in the context of vi- carious liability," as the Supreme Court has said the total relation- ship must be taken into account. "Functionally, the defendant Williams did not control the conduct of Brunning," Rasaiah said. "It was not in command of Brunning." Lawyers say the case makes it clear that law firms should make the nature of their relationship with a lawyer who is working in association with them very clear. "These cases are rarely black and white because they do in- volve line-drawing exercises and larger policy considerations," says Peter Downard, a defama- tion lawyer with Fasken Martin- eau DuMoulin LLP, who did not act in the case. Downard says that while the court found Williams was not vicariously liable for the conduct of the lawyer, the case still serves as a cautionary tale to firms to make sure they are fully disclos- ing the nature of the relationship with a lawyer who is working in association with them. "The law firm has to make the nature of that relationship very clear to the world," he says. "The law firm has to take care to ensure that it is not holding out a lawyer with whom it has a relationship as an employee or partner of the firm." The correspondences cen- tral to the defamation lawsuit claimed that Wallbridge Wall- bridge and Ottawa law firm Nelligan O'Brien Payne LLP had committed obstruction of justice and had deliberately co- ordinated with Justice Canada to conceal documents relevant to the claims for compensation of some residential school survi- vors, according to the plaintiff 's Statement of Claim. Peter Wardle, a lawyer repre- senting Nelligan O'Brien Payne as well as lawyers at the law firm, declined to comment. Wallbridge and Nelligan O'Brian Payne had represented residential school survivors in what is called the independent arbitration process. In the process, anyone with a claim could apply for a hearing before an arbitrator who would determine whether they were entitled to compensation. The Statement of Claim said that in one letter to Nel- ligan O'Brien Payne, Brunning claimed the two law firms had come to an "unlawful agree- ment" with the government and the Catholic Church to withhold documents in the process. The plaintiff 's Statement of Claim said Brunning sent her allegations to lawyers, a member of parliament and former Wall- bridge clients, as well as a jour- nalist who republished them on a blog. Lawyers representing Wil- liams said the firm had no knowledge of Brunning's corre- spondences. They said Wallbridge had "failed to put their best foot for- ward and lead any evidence that Brunning defamed the plain- tiffs." They added that even if there was evidence to support a find- ing of defamation, it does not support a finding of vicarious liability on Williams' part. Geoff Adair, the lawyer rep- resenting Wallbridge, argued that Williams ought to have been found both directly liable and vicariously liable for Brun- ning's letters, as they went out on their letterhead. "The letter is going out on their letterhead and they ought to be vicariously liable on the ground that they've authorized someone [to] use their letter- head in any way the person sees fit," he says. "The reader of the defama- tory comments isn't just inf lu- enced by the signer of the letter but by the authority and prestige of the law firm." In the decision, Rasaiah, however, said that even while Williams took a risk by allow- ing Brunning to use a shared letterhead, the firm took steps to make their relationship clear. "In my view, it is not reason- able or appropriate that every letter sent out by a lawyer prac- ticing in association with a law firm be reviewed by that law firm for the appropriateness of its contents," she said. "That is the implication of the plaintiffs' argument when it notes that there was no oversight by any member or employee of the defendant Williams in re- spect of the communications sent out by Brunning." The judge also noted that the plaintiffs did not file any evi- dence of the recipients that were alleged to have received the cor- respondences and whether those recipients were misled about the relationship between Brunning and the firm. Lawyers representing Wil- liams Litigation Lawyers de- clined to comment, as did the lawyer acting on behalf of Brun- ning. Adair says he has not decided whether to appeal the decision yet, but that the lawsuit against Brunning will continue. LT NEWS Peter Downard says a recent case serves as a caution to firms to make sure they fully disclose the nature of the relationship with lawyers working in association with them. oba.org/17institute Next month, connect with Ontario's legal community at OBA's Institute — Canada's largest legal CPD event. With nearly 100 hours of programming available, pinpoint your learning and tailor your experience to your practice. Time is running out - choose your programs and register today! FEBRUARY 7-11, 2017 Untitled-2 1 2017-01-04 4:14 PM The reader of the defamatory comments isn't just influenced by the signer of the letter but by the authority and prestige of the law firm. Geoff Adair

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