Executive Summary: Key Legal and Evidentiary Issues

• Absolute privilege was invoked as a defence to defamation for sharing a filed statement of claim with a non-party to the litigation (Manulife Securities Inc.).

• Sending court pleadings to a third party outside the judicial proceeding was found not to constitute a "step" in those judicial proceedings under the absolute privilege doctrine.

• An application to strike the defamation claim under Rule 3.68 failed because it was not plain and obvious that the pleading disclosed no reasonable cause of action.

• Summary dismissal of the inducing breach of contract claim was denied due to insufficient evidence meeting the personal knowledge requirement under Rule 13.18(3).

• A legal assistant's affidavit containing hearsay about the scope of communications between Ogilvie and Manulife was found inadequate where the lawyer-party himself could have sworn the affidavit.

• The appeal by Qureshi and Ogilvie LLP was dismissed on both grounds, with Pinkney entitled to costs of the application under Schedule C.

The background and parties involved

Douglas Ryan Pinkney was an employee of Manulife Securities Inc. In February 2022, Wayne Pinkney and Pinkney Wealth Management Inc. filed an action (the "PW Action") in the Court of King's Bench of Alberta naming Pinkney as defendant. The statement of claim (the "PW Pleading") alleges various misconduct by him against the interests of PWM. Imran Qureshi, then a partner at Ogilvie LLP and who still represents Wayne Pinkney and PWM in the PW Action, acted as counsel for those plaintiffs. While Manulife was investigating client complaints against Pinkney, the company became aware of the PW Action. On June 8, 2022, Manulife's regional director requested a copy of the PW Pleading from PWM. Qureshi sent a copy of the PW Pleading to Manulife. In September 2022, Manulife terminated Pinkney.

Pinkney's claims of defamation and inducing breach of contract

In response, Pinkney filed a statement of claim advancing defamation and inducing breach of contract actions against various defendants including Qureshi and Ogilvie. Pinkney asserts that, by sending the PW Pleading to Manulife, Qureshi and Ogilvie defamed him and induced a breach of his employment contract with Manulife. The PW Pleading contained statements which would objectively tend to lower Pinkney's reputation, and Qureshi and Ogilvie did not argue otherwise on this point.

The application to strike and summary dismissal before Application Judge Park

Qureshi and Ogilvie applied to strike certain paragraphs of Pinkney's statement of claim pursuant to Rule 3.68 of the Alberta Rules of Court, invoking the defence of absolute privilege as protecting the occasion under which the PW Pleading was shared with Manulife. They also sought summary dismissal of the inducing breach of contract claim, arguing there was no evidence of an intention by Qureshi to cause Pinkney's employment contract to be terminated or that termination was reasonably foreseeable. The application was argued on June 5, 2025 before Application Judge Park, who, via unpublished endorsement issued the next day, dismissed both applications. He found it was not plain and obvious that the defence of absolute privilege applied to the sending of the statement of claim in the circumstances, and he dismissed the application for summary dismissal on the basis that the affiant lacked personal knowledge of the matters deposed to. Qureshi and Ogilvie appealed both findings.

The Court's analysis of absolute privilege

On appeal, Justice Michael J. Lema examined the doctrine of absolute privilege, which enables those involved in the administration of justice — including litigants, witnesses, advocates, and judges — to speak freely without fear of an action in defamation. The Court noted that absolute privilege attaches to the occasion on which the statement is made rather than the words themselves, and that if the communication occurred within a "step" of the proceeding, the impugned statements are protected. Statements made in a filed pleading or as part of oral submissions in court fall within the core of judicial proceedings and are thus protected. However, where the communication does not occur as or within such an obvious or recognizable litigation step, the Court must review the context to determine whether the communication was incidental to or in furtherance of the underlying proceeding. Drawing on Rumancik v Hardy, 2024 ABKB 670, the Court cited the principle that disseminating the content of pleadings outside of the court proceeding — for example, by sending it to others — is not protected by absolute privilege. The Court also referenced Shah v Bakken, 2001 BCSC 1467, where circulating a statement of claim to third parties uninvolved as parties to the litigation was held not to attract privilege, and Rubin v Ross, 2013 SKCA 21, where posting a grievance report on bulletin boards was found not "so intimately connected with the process" as to attract absolute privilege. The Court concluded that sending the PW Pleading to a third party unrelated to the PW Action was not a step in those judicial proceedings, and that there was no argument or evidence from Qureshi and Ogilvie that sending it was connected to that proceeding in the sense of preparatory to or in furtherance of it.

The court clerk argument

Qureshi and Ogilvie argued that, if the Court found absolute privilege did not extend to the impugned sending of the statement of claim, court clerks would necessarily be liable for defamation any time they provided a filed pleading to a member of the public. Justice Lema noted that this argument appeared to overlook the purpose of absolute privilege and other principles which courts uphold. The defence of absolute privilege presumably extends to courts and their administrators and staff acting in their representative capacity, as managing court records — including providing copies of publicly filed records to ordinary-course requests — is part of the administration of justice. The Court further noted that courts have supervisory and protecting powers over their own records and uphold the open-court principle, which aligns with freedom of expression under section 2(b) of the Charter. Accordingly, declining to extend the defence of absolute privilege to the appellants' actions here would not appear to create defamation jeopardy for court clerks acting in the ordinary course of their duties.

The evidentiary deficiencies on summary dismissal

On the inducing breach of contract claim, the Court scrutinized the evidence tendered by Qureshi in support of summary dismissal. The only affidavit filed was that of Michelle Somarriba, Qureshi's assistant, who attested — based on her review of the time records for the PW Action and through her discussions with Qureshi — that no further discussions took place between Qureshi or anyone else at Ogilvie and the Manulife executive or anyone else at Manulife. However, the Court noted that the emails in evidence included one from Qureshi to the Manulife executive at 12:39 pm on July 8, 2022 stating he was "[p]leased to connect" and offering to "discuss further in a call next week," which may imply some level of preceding communication. Justice Lema found this evidence insufficient under Rule 13.18(3), which requires that, if an affidavit is used in support of an application that may dispose of all or part of a claim, it must be sworn on the basis of the personal knowledge of the person swearing it. The Court acknowledged that some flexibility exists in applying this rule, particularly for cases involving corporations, estates, or historical claims where a person with personal knowledge is not or is no longer available; however, none of those circumstances applied here. Qureshi himself was available to provide, and could have provided, the evidence on the state of communications between Ogilvie and Manulife. His argument that he could not swear an affidavit because it is a well-established rule that a lawyer cannot be both lawyer and witness in the same case — given his continuing role as counsel of record in the PW Action, which is closely related to this action — was not accepted. The Court agreed with Pinkney's position that Qureshi is a party to these proceedings and therefore should be expected to be bound to his obligations as a party, including giving evidence and otherwise acting as a witness. The Court found that Qureshi's party status was the reason a legal-assistant affidavit was insufficient, and that possible complications arising from consolidation of related actions did not undercut his party status or his associated witness obligations.

The ruling and outcome

Justice Lema dismissed the appeal on both grounds, confirming that Application Judge Park reached the correct answers on both issues. On the defamation claim, the Court held it was not plain and obvious that absolute privilege applied to the sending of the statement of claim in the circumstances, and accordingly not plain and obvious that Pinkney's pleading failed to outline a reasonable claim. On the inducing breach of contract claim, the Court found the evidentiary record inadequate to support summary dismissal and identified a genuine issue for trial: at minimum, whether further Ogilvie-Manulife communications occurred, the nature of those communications (if any), and their impact (if any) on Pinkney's dismissal by Manulife. Douglas Ryan Pinkney was the successful party, and the Court held that he is entitled to costs of the application under the appropriate column of Schedule C. No specific monetary amount was determined or awarded at this stage of the proceedings.