Robson v Law Society of Upper Canada

[15]        The defendants’ Notice of Motion was based on the allegations contained in the initial claim issued September 8, 2015. On May 30, 2016, notwithstanding that a defence had been delivered and pleadings were closed, the Local Registrar, without the consent of the defendants or leave of the court, amended the claim to add allegations of misfeasance in (abuse of) public office.

[16]        Following the amendment of the claim, and prior to the return date of this motion, Robson delivered a motion record seeking an order permitting the plaintiff to amend his claim in the form attached as Schedule ‘A’ to his notice of motion (a copy of the amended claim was marked as schedule “A”) and an order scheduling the hearing of this motion at the same time as the hearing of the defendant’s motion to strike the Plaintiff’s Claim.

Preliminary Issue – Priority of This Rule 21 Motion

[17]        In Preiano v. Cirillo, 2015 ONSC 7181 (CanLII), 15 E.T.R. (4th) 38, Price J. dealt with the priority of a rule 21 motion and a motion to amend a claim. At para. 10, the court states:

With regard to the plaintiff’s motion for leave to amend the Statement of Claim, Dawson J. held in Raghaven v. Bell Canada [2011 ONSC 7486, W.D.F.L. 4669, at para. 26, aff’d 2012 ONCA 370 (CanLII), W.D.F.L. 2799, leave to appeal refused 2013 CanLII 15561 (SCC)] that where a motion to strike (or, in the present case, for a determination of a question of law under Rule 21) was served before a cross-motion to counsel, the motion under Rule 21 should proceed first on the basis that a moving party’s rights are not normally open to being prejudiced  by anything after service of the notice of motion.

[20]        In addressing this preliminary issue, counsel for the defendants advised that his clients were waiving their objection and any challenge to the amended statement of claim. He advised that, in order to avoid multiple motions and multiple attendances, for the purpose of this motion, it is the amended claim which is to be considered. As a result, I find that Robson’s motion is not necessary.

 [38]        Section 9 of the Law Society Act, R.S.O. 1990, c. L.8 provides:

No action or other proceedings for damages shall be instituted against the Treasurer or any bencher, official of the Society or person appointed in Convocation for any act done in good faith in the performance or intended performance of any duty or in the exercise or in the intended exercise of any power under this Act, a regulation, a by-law or a rule of practice and procedure, or for any neglect or default in the performance or exercise in good faith of any such duty or power.

[39]        In Conway, at para. 22, the court confirmed the principle that:

Mere negligence in the good faith performance of the LSUC’s duties or functions is not enough to establish liability. However, an absence of good faith or “bad faith”, involving malice or intent, is sufficient to ground a properly pleaded cause of action against the LSUC. See: Edwards v. Law Society of Upper Canada, 2001 SCC 80 (CanLII), [2001] 3 S.C.R. 562; Finney v. Barreau du Quebec, 2004 SCC 36 (CanLII), [2004] 2 S.C.R. 17.

[40]        The Supreme Court in Edwards, at para. 6, agreed with the Court of Appeal’s pronouncement in that case that imposing tort liability on the Law Society itself would, barring mala fides, be inconsistent with its “public interest” role: (2000) 48 O.R. (3d) 329.

[41]        It is settled law that, while the wording of section 9 of the Law Society Act does not apply to the Law Society itself, disciplinary proceedings of the Law Society are judicial or quasi-judicial in nature. As a result, absent bad faith, the Law Society is immune from suit.

[42]        Finlayson J.A., writing for the Court of Appeal in Edwards, at paras. 26, 27 30, and 40, addressed this issue by stating, in part:

It is also important to note that immunity to civil suit is codified in s. 9 of the Law Society Act. While it applies only to actions against officials of the Society and not the Law Society itself, the Legislature is presumed to know the law and must be taken to have recognized that the society itself has been traditionally immunized from civil actions by the common law…

It would be easy to dismiss the above authorities as being pre-Kamloops and, therefore, out of date, but this line of cases has been applied up to nearly the present-day. In Lee v. Law Society of Upper Canada, [1994] O.J. No. 1468 (Gen. Div.), for example, Chilcott J. held that “in the absence of bad faith or malice, the Law Society of Upper Canada cannot be sued for the negligent exercise of an investigation into the conduct of a solicitor.” This decision did not mention Kamloops…

This jurisprudence clearly establishes a judicial immunity from negligence for the Law Society’s discipline process, including the investigative function at the front end. The Law Society’s disciplinary powers must respond to its statutory mandate and the requirements of due process, not to a private law duty of care…

Following …the… remarks of Huddart J.A., it seems to me that there are very sound policy reasons for not burdening this judicial or   quasi-judicial process with a private law duty of care. The public is well-served by refusing to fetter the investigative powers of the Law Society with the fear of civil liability. The invocation by the plaintiffs of the “public interest” role of the Law Society seems to be misconceived as it actually works to undermine their argument… the Law Society cannot meet this obligation if it is required to act according to a private law duty of care to specific individuals such as the appellants. The private lot duty of care cannot stand alongside the Law Society’s statutory mandate and hence cannot be given effect to.

[46]        In Stoffman v. Ontario Veterinary Association, 1990 CanLII 6925 (ON SC), 1990 CanLII 6925, 73 O.R. (2d) 737 (Div. Ct.), at para. 10, the Court confirmed that professional disciplinary bodies are not immune from malicious prosecution actions. In this regard, the Court stated as follows:

In view of the clearly stated opinion of the Supreme Court that an action for malicious prosecution can lie even against the Attorney General and his agents, Crown Attorneys, there cannot be any policy reason why a professional disciplinary body should have absolute immunity from such suits. There should be no concern about courts second-guessing their judgments; only in cases where prosecutions are undertaken maliciously may an action lie.

[47]        In Miazga v. Kvello Estate, 2009 SCC 51 (CanLII), 3 S.C.R. 339, at paras. 53-56, the Supreme Court of Canada confirms the four necessary elements of the tort of malicious prosecution. These are:

(a)   a proceeding initiated by the defendant;

(b)   a proceeding terminated in favor of the plaintiff;

(c)   the defendant had no reasonable and probable cause to initiate the proceeding; and

(d)   the defendant acted with malice.

[52]        The determination in Finney turned on the meaning of good faith and bad faith within the meaning s. 193 of the Quebec Professional Code. It did not implicate or address the tort of malicious prosecution.

[53]        The required elements that comprise the tort of malicious prosecution, and their meanings, are clearly set forth in the Miazga case. The Supreme Court of Canada made it clear, at para. 78 and 80, that the fourth essential element of the tort, namely malice, requires intentional conduct on the part of the tortfeasor:

The malice element of the test for malicious prosecution considers a defendant prosecutor’s mental state in respect of the prosecution at issue… However, even if the plaintiff should succeed in proving at the prosecutor did not have a subjective belief in the existence of the reasonable and probable cause, this does not suffice to prove malice, as the prosecutor’s failure to fulfill his or her proper role may be the result of inexperience, incompetence, negligence, or even gross negligence, none of which is actionable: Nelles, at p. 199; Proulx, at para. 35. Malice requires a plaintiff to prove that the prosecutor willfully perverted or abused the office of the Attorney General or the process of criminal justice.

[54]        Robson has failed to plead the requisite full particulars regarding the circumstances and facts that would enable the trier of fact to infer malicious conduct. The pleading is vague. It lacks specified allegations and particulars of the improper purpose and ulterior motive alleged. I therefore strike those paragraphs, or portions of them, with leave to amend as follows.

[55]        The following paragraphs are struck in their entirety: 1(b), 7, 38, 40, 45, 55, 56, 57, 58, and 59.

[57]        The essential elements of the tort of misfeasance in (abuse of) public office are described in Conway, at para. 20, as follows:

The tort of misfeasance in public office has been variously described in the case law as the tort of abuse of public office or abuse of statutory power: Odhavji Estate v. Woodhouse, 2003 SCC 69 (CanLII), at paras 25 and 30. Whatever the nomenclature, the essence of the tort is the deliberate and dishonest wrongful abuse of powers given to a public officer, coupled with the knowledge that the misconduct is likely to injure the plaintiff: Odjhavji Estate v. Woodhouse, at para. 23. Bad faith or dishonesty is an essential ingredient of the tort: Odhavji Estate v. Woodhouse, at para. 28 and Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 501 (CanLII), at para. 85.

[58]        As stated in Conway at para. 22, “[m]ere Negligence in the good faith performance of the LSUC’s duties or functions is not enough to establish liability. However, an absence of good faith or ‘bad faith’, involving malice or intent, is sufficient to ground a properly pleaded cause of action against the LSUC. See: Edwards v. Law Society of Upper Canada, 2001 SCC 80 (CanLII), [2001] 3 S.C.R. 562; Finney v. Barreau du Quebec, 2004 SCC 36 (CanLII), [2004] 2 S.C.R. 17.”

[61]        Adopting the test articulated in Conway, I do not conclude that it is not “plain and obvious” that no tenable cause of action is possible on the facts alleged in the amended claim. Accordingly, I decline to strike the plaintiff’s claim based on malicious prosecution or misfeasance in (abuse of) public office without leave to amend.

[62]        Using the words in Conway, at paras. 23 and 30, “[t]he  appellant’s statement of claim is replete with allegations that the LSUC  intentionally acted dishonestly, fraudulently, and without statutory  authority in its dealings with the appellant, knowing that its actions would cause and  did cause  damages to the appellant” … “Taking all of the appellant’s factual allegations as true and reading the essence of the pleading as a claim for misfeasance in public office [and in this case  malicious prosecution], it is not plain and obvious that a proper pleading of a reasonable cause of action founded on the alleged bad faith conduct against the LSUC would fail.”

[63]        Instead, I strike the paragraphs relating to the allegations of malicious prosecution and misfeasance in (abuse of) public office with leave to amend. This affords the plaintiff the opportunity to plead, with proper particulars as required under rules and 21.01(1)(d) and 25 06(8),  these two causes of action.

[64]        In doing so, however, I adopt the language of the Conway panel as to the proper particularity that is required in a statement of claim. As in Conway, the defendants in this proceeding are entitled to know with particularity the case they have to meet.

[65]        I would further adopt the language of the Conway panel, at para. 39, as it applies to the torts based on malice, bad faith, and dishonesty: “[s]ince bad faith or dishonesty is an essential ingredient of the tort of misfeasance in public office, rule 25.06(8) requires that full particulars be pleaded: Gratton-Masuy, at para. 88-89.”

[68]        Regarding the claims grounded in malicious prosecution and misfeasance in (abuse of) public office, and my decision to grant leave to amend, I find that leave is appropriate at this stage of the litigation. As articulated in part in Conway, at para. 16,  “[t]he  decision not to grant leave to amend should only be made in the clearest of cases, when it is  plain and obvious that no tenable cause of action is possible on the facts as alleged: South Holly Holdings Ltd. v. The Toronto-Dominion Bank, 2007 ONCA 456 (CanLII), at para. 6.” See also: Tran v. University of Western Ontario, 2015 ONCA 295 (CanLII), [2015] O.J. No. 2185, at para. 26.

[74]        In Toronto (City), at para. 38, the Supreme Court confirms that:

The doctrine of abuse of process has been extended beyond the strict parameters of res judicata while borrowing much of its rationales and some of its constraints. It is said to be more of an adjunct doctrine, defined in reaction to the settled rules of issue estoppel and cause of action estoppel, than an independent one (Lange, supra, at p. 344). The policy grounds supporting abuse of process by relitigation are the same as the essential policy grounds supporting issue estoppel (Lange, supra, at pp. 347-48):

The two policy grounds, namely, that there be an end to  litigation and that no one should be twice as vexed by the same cause, have been cited as policies in the application of abuse of process by re-litigation. Other policy grounds have also been cited, namely, to preserve the courts’ and the litigants’ resources, to uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice.

[75]        In applying the applicable legal principles to the record before me, I find that this action is not an attempt to re-litigate a claim which was already determined at the costs hearing before the Law Society Appeal Division. I therefore refuse to dismiss this action on that basis.

[76]      In coming to this conclusion, I am mindful of the comments of the Supreme Court in Toronto (City), where, at para. 53, the court states in part: “The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result.”

[77]      The issues pled in the amended claim were not, in their entirety, presented or argued before the Law Society Appeal Division as part of the costs determination. The issues for determination in the amended claim are, in many respects, different than those which were before the hearing panel. The discretionary doctrine of abuse of process is to be applied on a case by case basis.

[78]      In my respectful view, to dismiss the plaintiff’s claim in its entirety based on the doctrine of abuse of process, res judicata, or estoppel on the basis that the costs decision of the hearing panel was dispositive of the issues, would, at this stage of the litigation, be “manifestly unfair” to the plaintiff given the context in which the comments at para. 14 of the hearing panel’s costs determination were made.

[79]      Robson is granted leave to serve and file a fresh as amended statement of claim in accordance with these reasons for decision within 60 days.

[80]      I encourage the parties to agree on the issue of costs. If they cannot, written submissions of no more than three pages, along with a costs outline, may be submitted by the defendants by September 26, 2016. The plaintiff may submit his costs submissions on the same basis by October 7, 2016. Any reply is to be submitted by October 13, 2016.

Firestone J.

Decision published in part// Emphasis added// Image(s) added

Full decision link below

Citation: Robson v Law Society of Upper Canada, 2016 ONSC 5579 (CanLII), <>, retrieved on 2016-09-22

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