Canadian Lawyer

10 M A Y 2 0 1 8 w w w . C A N A D I A N L a w y e r m a g . c o m T he Ontario Court of Appeal has opened the door to a firm possi- bly being found vicariously liable for the actions of a lawyer who practised in association with it. In Wallbridge v. Brunning, the court has allowed a claim against Ottawa-based firm Williams Litigation Lawyers to pro- ceed to trial after an Ontario Superior Court judge had dismissed it. The claim was brought by Wallbridge Wallbridge — a partnership of lawyers with offices in Northern Ontario — for allegedly defamatory statements that lawyer Fay Brunning wrote about the partnership. Brunning, who is the wife of Wil- liams minority partner Eric Williams, sent letters using the law firm's letterhead and worked out of the same office at one point, but she was not an employee of the firm. The letters were sent to lawyers, a member of Parliament, former Wall- bridge clients and a journalist who repub- lished them on a blog. The claim against the firm hinges on whether it can be found vicariously liable for Brunning's allegedly defamatory state- ments given that she used its letterhead and was practicing in association with the firm. Williams brought a successful sum- mary judgment motion to have the claim against it dismissed, arguing that Brun- ning was acting independently when she sent the letter and that she was not an employee. Ontario Superior Court Justice Annalisa Rasaiah found that there was no evidence that Brunning was being held out as a partner or employee of the firm and that the letterhead made it clear that she was practising in association. Rasaiah determined that Brunning's actions were not sufficiently close to the law firm to justify a finding of vicarious liability and that there was no evidence that proved the letters were written in relation to any asks assigned by the firm. But the appeal court found it was not in the interest of justice to decide the case on a summary judgment motion. "Given the strength of the evi- dence that could support a finding that Williams should be found liable for Brunning's allegedly defamatory cor- respondence, and given the novelty and importance of the question, the motion judge should have refused to grant sum- mary judgment and allowed the matter to proceed to trial," Justice Russell Juriansz wrote on behalf of a three-judge panel. Geoffrey Adair, the lawyer who rep- resented Wallbridge Wallbridge in the matter, says that there are any number of lawyers in Ontario who hold themselves out as "practising in association" with other lawyers, which can mean varying forms of association from space-sharing to client referrals. He says the impact of this decision is that if one lawyer holds another out as practising in association, they should be careful as they may be found responsible for each others' wrongdoing. "Lawyers have to be aware of that and be very careful as to the possible conse- quences of advertising an 'in-association' relationship," he says. In the letters, Brunning alleged that Wallbridge Wallbridge had been negli- gent in the way it represented residential school survivors and had committed obstruction of justice by being involved in a scheme to supress evidence. She claimed the firm had co-ordinated with the federal government to conceal docu- ments relevant to claims of residential school survivors, according to the plain- tiff 's statement of claim. Williams had argued that Wallbridge had failed to "put its best foot forward" to lead any evidence that Brunning had defamed the partnership, but the Court of Appeal found this argument had no merit as the only live issue in the matter was whether Williams could be found liable. The court determined that while the motion had not attached any weight to the fact that the allegedly defamatory statements were published under the firm's letterhead, this could "reasonably be seen as Williams placing its reputation behind the alleged defamation." The Court of Appeal found that Brun- ning's use of the firm's letterhead to send the letters was "fully authorized" and that Williams had granted the lawyer a "com- plete and uncontrolled licence to com- municate" using the letterhead. — ALEX ROBINSON \ AT L A N T I C \ C E N T R A L \ P R A I R I E S \ W E S T REGIONAL WRAP-UP NON-EMPLOYEE'S USE OF LAW FIRM LETTERHEAD COULD STILL MEAN LIABILITY FOR DEFAMATION Geoffrey Adair Medico - Legal EXPERT WITNESS ALTERNATIVE DISPUTE RESOLUTION EXPERT AUTHORITY KNOWLEDGE TRUSTED OBJECTIVE ACCURATE Your case is too important. You deserve the best EXPERT WITNESS. Unparalleled expertise from award-winning medical experts. More than 2,000 med mal/personal injury cases & 300+ lawyer clients assisted. A top provider of cost of care reports for your most catastrophically injured clients. CONNECTMLX.COM EXPERTS@CONNECTMLX.COM TOLL FREE: 855-278-9273 ntitled-1 1 2017-11-02 8:41 AM

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