Harper and the other defendants countered her lawsuit, filed in December, with a motion to toss it out and Ontario Superior Court Justice Charles Hackland granted that motion.
"I am disappointed in the result. I have instructed my counsel to appeal the decision," Guergis said in a statement to CBC News Network's Power & Politics. Guergis said she wouldn't comment further except to say that she should have the opportunity to present her evidence in court.
"I believe Canadians would be disturbed. The average Canadian doesn't believe politicians or their staff etc., should be above the law. On a positive note, I am enjoying private time with my family and look forward to begining law school in a week," she said.
The court's decision, and Guergis's reaction to it, are the latest chapters in what is turning into an extensive legal battle between Guergis and her former boss and colleagues. It stems from her leaving cabinet and the Conservative caucus – she was minister of state for the status of women and MP for Simcoe-Grey in Ontario – in April 2010 amid controversy.
Harper held a news conference on Parliament Hill to announce she was out of cabinet and out of caucus, and said he had received allegations about her conduct and passed them on to the RCMP and Parliament's ethics commissioner.
The allegations involved fraud, extortion, and obtaining benefits by false pretences and prostitution. Guergis was cleared by the RCMP but not allowed to re-join the Conservative caucus. She ran as an Independent Conservative in the 2011 election and was defeated by the Conservative candidate.
Sought damages of $1.3 million
Guergis first brought her complaints to the Canadian Human Rights Commission and lost that case last November.
Guergis then sued Harper and numerous other defendants, including Labour Minister Lisa Raitt and Conservative MP Shelly Glover, alleging conspiracy, defamation, misfeasance in public office, negligence and infliction of mental suffering, seeking total damages of $1.3 million.
In addition to her former boss and caucus colleagues, Guergis's suit also targetted:
- Guy Giorno, Harper's former chief of staff.
- Ray Novak, Harper's principal secretary.
- Arthur Hamilton, the Conservative Party's lawyer.
- Cassels Brock & Blackwell, Hamilton's law firm.
- The Conservative Party of Canada.
- Derrick Snowdy, the private investigator who helped spark controversy around Guergis.
- Axelle Pellerin, a former staff member with Raitt and Guergis.
The motion to strike out her claim was heard in an Ottawa court last month.
Harper's legal team argued that the claims in the lawsuit were not matters for the court to decide, that the Human Rights Commission had already ruled on them and that the prime minister and other defendants had not committed defamation, but even if they had, they are protected from lawsuits by the doctrines of Crown prerogative and absolute and Parliamentary privilege. The lawyers argued that the lawsuit did not meet the proper legal tests in order for it to proceed.
While Guergis does agree that Harper is allowed to remove her from cabinet, she alleged he did it in an unlawful way and that he and the others engaged in a conspiracy designed to get her out of political office and so that is a matter for the courts to hear.
But the judge rejected her case and said that if it were allowed to proceed, the prime minister would wind up in court justifying his political decisions about the membership of his cabinet and that Crown prerogative would be rendered meaningless.
"Crown privilege is an important principle of our legal system and it cannot be displaced or attacked collaterally by way of allegations of tortious conduct," Hackland wrote. "In this case, I find that it is plain and obvious that the actions of the Prime Minister, in relation to the removal of the plaintiff from cabinet, fall within Crown prerogative and this Court lacks the jurisdiction to review the tort allegations related to the Prime Minister’s actions."
The judge also accepted the argument that Harper and his staff's actions were covered by parliamentary privilege, a doctrine that gives people holding office immunity from legal action if functions are carried out according to their legislative responsibilities.
"A prime minister's removal or suspension of a Member of Parliament from caucus is at the core of parliamentary privilege," the decision says.
30 days to file appeal
Peter Mantas, one of the lawyers who acted on behalf of Giorno and the other defendants on the defamation claim during the hearing in July, said the judge's interpretation of parliamentary privilege is "an important finding" with broad implications for those who work in government.
"You can imagine if somebody were to potentially face a defamation lawsuit because they were communicating on these issues, they are going to be very, very cautious about speaking openly so it has huge implications across the board for government," he said in an interview.
"And in this town obviously this is a very, very important decision in that respect, it gives you some comfort," the Ottawa-based lawyer said.
Mantas said he is confident about his client's case if and when the matter goes to an appeal court.
The Conservative Party of Canada's lawyer, Paul D'Angelo, had argued during the hearing that a political party cannot actually be sued, and the judge also accepted that argument.
Guergis had asked that if the motion to strike was granted, she be given a chance to amend her lawsuit but Hackland rejected that request on almost all fronts.
Only in her lawsuit against Arthur Hamilton, alleging breach of duty, negligence and other claims, was Guergis given leave to amend the claim.
Guergis has 30 days to file new paperwork on her appeal and Harper and the others have 21 days to file a claim for costs for the motion.