Court File and Parties

COURT FILE NO.: CV-21-00659943-0000 DATE: 20220506

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALEXANDER SHAULOV

AND: LAW SOCIETY OF ONTARIO, PERFORMANCE ASSESSMENT GROUP INC., JOHN BRAHAM and MICHAEL WILLIAMS

BEFORE: VERMETTE J.

COUNSEL: Alexander Shaulov, self-represented Nader Hasan and Karen Bernofsky, for the Defendants

HEARD: January 10, 2022

Endorsement

[1] The Defendants bring this motion for:

a. an order under Rule 21.01(1)(b) of the Rules of Civil Procedure striking out the Statement of Claim without leave to amend on the ground that it is plain and obvious that the Statement of Claim discloses no reasonable cause of action;

b. in the alternative, an order under Rule 21.01(a) striking out certain paragraphs of the Statement of Claim to the extent they reference cognitive ability or disability on the ground that the Plaintiff does not have standing to bring the claims pursuant to the Charter of Rights and Freedoms (“Charter”) on grounds of cognitive disability.

[2] I heard this motion as the Case Management Judge appointed for this matter.

Factual Background

1. The parties

[3] The Plaintiff is an individual who applied for a licence to practise law from the Defendant Law Society of Ontario (“LSO”).

[4] The Defendant Performance Assessment Group Inc. (“PAG”) is a private corporation incorporated in Ontario. The Defendants John Braham and Michael Williams are directors of PAG. Together, PAG and Messrs. Braham and Williams are referred to as the “Non-LSO Defendants”.

2. Statutory and regulatory context

[5] Section 4.1 of the Law Society Act, R.S.O. 1990, c. L.8 (“LSA”) provides as follows:

4.1 It is a function of the [LSO] to ensure that,

a. all persons who practise law in Ontario or provide legal services in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services they provide; and

b. the standards of learning, professional competence and professional conduct for the provision of a particular legal service in a particular area of law apply equally to persons who practise law in Ontario and persons who provide legal services in Ontario.

[6] Section 62(0.1) of the LSA states that the LSO’s Convocation may make by-laws relating to a number of issues, including by-laws “governing the licensing of persons to practise law in Ontario as barristers and solicitors and the licensing of persons to provide legal services in Ontario, including prescribing the qualifications and other requirements for the various classes of licence and governing applications for a licence”.

[7] Pursuant to this authority, Convocation has adopted By-law 4, which deals with licensing issues. Sections 8 and 9 of By-law 4 set out the requirements for the issuance of a licence to practise law. One of these requirements is the successful completion of the licensing examinations set by the LSO (“Licensing Examinations”) by not later than two years after the end of the licensing cycle into which the applicant is registered. Sections 14 and 15 of By-law 4 set out the requirements to take a Licensing Examination. At all material times, the Licensing Examinations were the Barrister Licensing Examination and the Solicitor Licensing Examination.

[8] The LSO has also adopted Licensing Process Policies that describe the rules and procedures for completion of the licensing process. Part XII of the Licensing Process Policies deals with Licensing Examinations.

[9] Based on By-law 4 and the Licensing Process Policies, a candidate may not attempt either the Barrister Licensing Examination or the Solicitor Licensing Examination more than three times. A candidate who is unsuccessful three times may request authorization to write the Licensing Examination a fourth time. If the candidate is unsuccessful after three attempts (or four, if granted authorization), that candidate is deemed to have abandoned their application for a licence. Where an application is deemed abandoned, the candidate may seek authorization to reapply to the licensing process one year later.

3. The Plaintiff’s claims in the Statement of Claim

[10] The Plaintiff commenced this action on April 6, 2021. The Statement of Claim is more than 40 pages in length and contains 220 paragraphs.

[11] The Plaintiff seeks the following relief in his Statement of Claim:

a. a declaration that the Law Society Lawyer Licensing Barrister and Solicitor Examination (the “Licensing Examination”), method, structure, process, method of evaluation is discriminatory and violates Plaintiff’s section 15 of the Charter;

b. a declaration that the section 9(2) of By-Law 4 and Part XII of the Licensing Process Policies (the “Licensing Policies”) requiring any lawyer candidate to pass the discriminating Licensing Examination in order to be admitted to the Bar violates the Plaintiff’s sections 7 and 15 of the Charter;

c. a declaration that the Licensing Examination structure, process and method of evaluation as well as the Licensing Policies violate the administrative common law principles of fundamental justice as it does not provide procedural fairness and thus unreasonable [sic];

d. a declaration that the Licensing Examination structure, process and method of evaluation as well as the Licensing Policies violates [sic] Plaintiff’s section 7 of the Charter as the Plaintiff has the right to be free and secured from cognitive psychometric testing;

e. a declaration that the Licensing Policies requiring any lawyer candidate to pass the discriminating Licensing Examination in order to be admitted to the Bar is unreasonable, null and inoperative pursuant to s. 24(1) of the Charter;

f. a declaration that the Defendants breached their respective obligations owed to the Plaintiff under the Ontario Human Rights Code, RSO 1990, c. H.19 (the “Code”). specifically under sections 6, 10(3) and 11(1);

g. a declaration that the Licensing Examination structure, process and method of evaluation is in fact psychometric discriminatory examination and is ultra vires to the Law Society Act (the “Act”) and unreasonable;

h. a declaration that the Plaintiff fulfilled all the lawyer licensing requirements in order for the respondent to issue the Plaintiff L1 license;

i. an interim, interlocutory, and permanent injunction compelling the Defendant LSO to provide the Plaintiff with and disclose in court the Blueprints of its Examination and any documents related either directly or indirectly to the guidance, whatsoever, the Defendant has been receiving from psychometricians and the second Defendant, Performance Assessment Group Inc. (the “PAG”), while developing Examination questions and answers as well as scoring method or evaluation;

j. an interim, interlocutory, and permanent injunction compelling the Defendant LSO to provide the Plaintiff with all versions of his written Examinations with an answer sheets [sic] and disclose the method of evaluation or scoring method applied including the reasons for allegedly correct answers;

k. an interim, interlocutory, and permanent injunction compelling the Defendant LSO to provide the Plaintiff with and disclose in court the internal statistics that provide the rate of failure in both licensing Examination by members of minority groups;

l. an order setting aside decision of the Licensing and Accreditation section of the Law Society of Ontario (the “LSO”) dated October 1, 2020 that is based on unlawful Licensing Policies;

m. an order compelling the Defendant LSO to conduct a fair and equitable individual assessment interview in order for the Plaintiff to be able to present, prove and make his case showing his competence in practicing law in Ontario;

n. an order compelling the Defendant LSO to admit the Plaintiff to the Bar and issue to him L1 license;

o. an order against both Defendants to pay monetary compensation to the Plaintiff under section 46.1(1) of the Code.

[12] The Statement of Claim has five sections: (1) prayer for relief; (2) factual background; (3) the parties; (4) cause of action; and (5) conclusion.

[13] The following is a summary of the allegations in the Statement of Claim.

[14] The Plaintiff is a naturalized Canadian of West Asian origin with Persian/Russian/Uzbek Jewish background. He came to Canada in 2001 as a permanent resident from Israel. He is fluent in English, French, Russian and Hebrew.

[15] On October 2017, the Plaintiff filed an application with the LSO for a licence to practise law in Ontario and paid the applicable fees as required by By-Law 4 in order to be placed in the lawyer licensing process.

[16] In 2019, the Plaintiff successfully completed the articling requirement via the Law Practice Program (“LPP”) and was hired as an articling student by a firm based in Toronto. The Plaintiff was evaluated by his articling principal and the LPP lawyers and was found to be competent.

[17] From 2018 to 2020, the Plaintiff wrote the Barrister and Solicitor Licensing Examinations. On his third attempt, he passed the Solicitor Licensing Examination, but he failed the Barrister Licensing Examination. The Plaintiff had to request a permission to write the Barrister Licensing Examination for a fourth time, which permission was granted on May 13, 2020.

[18] The Plaintiff failed the Barrister Licensing Examination a fourth time. On October 1, 2020, the LSO’s Licensing and Accreditation section team manager sent a letter to the Plaintiff advising him that, in accordance with the LSO’s Licensing Process Policies, he was removed from the licensing process due to his unsuccessful fourth attempt at passing the Barrister Licensing Examination. [1]

[19] The Plaintiff alleges that he did not learn anything from taking the Licensing Examinations and that they did not contribute in any manner whatsoever to the development of his skills, knowledge or abilities.

[20] The Plaintiff states that he observed the following:

While writing on the second and third time the Examination, Mr. Shaulov observed that many individuals belong to minority groups have [sic] been rewriting the Examination at least three times while others passed the Examination on at least second attempt.

[21] The Statement of Claim discusses the development process for the Licensing Examinations starting in 2001. It is alleged that the LSO mandated PAG to develop a standardized, reliable, valid and defensible Licensing Examination. However, the LSO did not conduct any due diligence regarding PAG’s qualifications to do so. Neither PAG nor its directors had expertise in researching and developing psychometric licensing examinations.

[22] PAG provided a report to Convocation outlining the method, structure, process and scoring method that it believed to be the right ones based on psychometric examination testing. However, PAG and the LSO did not take required steps to ensure that the Licensing Examinations would test what they purport to test and would not discriminate against visible minority groups.

[23] The Statement of Claim refers to various concerns that have been expressed regarding the lack of diversity in the legal profession and the impact of such lack of diversity on any approach to competence. It states the following:

The [Task Force on the Continuum of Legal Education] examined the equity implications of the new licensing model it recommended, stating that in addition to being reliable, the process must be fair and free of “unreasonable barriers to admission for all groups, especially those candidates from groups currently under-represented in the legal profession” who had experienced a disproportionately high failure rate in the BAC [bar admission course]. In the Task Force’s opinion these goals could be achieved if representatives from “visible minority, Aboriginal, and Francophone” candidate communities were involved in the design of the competencies, examination questions, and the administration of the exam. The Task Force’s opinion was in part based on comments it received from representatives from these communities during consultations. The Task Force recommended the LSO continue and expand candidate supports implemented after 1997 including tutoring, extended time to complete the examinations, and measures currently described as “accommodation”.

However, the scope of the consultation process involved only the following visible minority groups organizations l’AJEFO, the Canadian Association of Black Lawyers, Rotiio ‘taties’ and Women’s Law Association but the consultation process totally ignored ethnical minority groups that exist in Ontario.

[24] The Plaintiff alleges that the LSO’s entire Licensing Examination structure, process and scoring method is unfair and discriminatory, violates sections 7 and 15(1) of the Charter and sections 6, 10(3) and 11(1) of the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”), is ultra vires the LSA, and is therefore unlawful and unreasonable. He states that at all material times, the LSO has failed in its legal duty to ensure that the Licensing Examinations conform with Charter values and the principles of fundamental justice and are free from any unfair process and discrimination.

[25] The Statement of Claim states that the Licensing Examinations are not merit-based, which is contrary to the LSA as the latter only enables the LSO to conduct a merit-based examination that is relevant to the practice of law.

[26] The Plaintiff further states in the Statement of Claim that he can personally attest to the Licensing Examinations’ failure to adequately evaluate a lawyer candidate’s competency or knowledge of the law, as his passing of the Solicitor Examination did not assist him with becoming more learned or knowledgeable in the law. It is alleged that the structure of the Licensing Examinations was not designed to evaluate any practical legal knowledge or legal skills, but rather is used by the LSO as a discriminative selection mechanism of candidates.

[27] The Statement of Claim also pleads that the Licensing Examinations test cognitive abilities and disabilities, and that the LSA does not enable the LSO to examine the cognitive abilities, limitations or disabilities of any lawyer candidate. Further, any test or examination that evaluates the cognitive abilities, limits or disabilities of test-takers is inherently discriminatory based on cognitive disability.

[28] It is alleged that the LSO created a scientific laboratory to conduct clinical psychological testing on lawyer candidates through its Licensing Examinations process to test “a small number” (10% -15%) of new questions that are inserted in each Licensing Examination as experimental items. The experimental items that are tested during the Licensing Examinations eventually become active questions following the experiments conducted on lawyer candidates through the Licensing Examination process. The Statement of Claim states that the LSA does not enable or authorize the LSO to conduct psychometric clinical testing through its Licensing Examination process or impose participation in such experiments on lawyer candidates.

[29] It is further alleged that in the absence of express or implied authority to subdelegate, the LSO did not have any legal right or authority to delegate the creation of content, structure, process and method development, scoring method and design of the Licensing Examinations questions to PAG, a private for-profit corporation.

[30] The Statement of Claim pleads that the examination of cognitive ability and disability of lawyer candidates is not a bona fide regulatory requirement and does not affect the lawyer candidates’ competency or enables the LSO to better protect the interest of the public. It further pleads that it has been long established in Canadian caselaw that if psychometric testing does not test or affect the better performance of the profession and discriminates or creates unreasonable barriers by discriminating as against minority groups, it violates the Code as well as the Charter.

[31] The allegations of discrimination in the Statement of Claim include the following:

The Plaintiff affirms that the by-laws and Examination Policies requiring lawyer candidates to subject themselves to discriminative, non-merit-based licensing Examination without alternatives creates [sic] not only a distinction based on ethical [sic], cultural, and racial background as well as perceived cognitive disability (enumerated and analogous ground), but it also creates unreasonable barriers and a disadvantage by perpetuating prejudice pursuing [sic] s. 15(1) of the Charter.

The Examination structure, process and method of scoring as developed by the PAG and approved by Convocation discriminates [sic] as against individuals of the same ethnical, racial, and cultural background as the Plaintiff by failing to take into account the divers [sic] way of thinking, reasoning, analysing and processing information as typically done by individuals with similar background as the Plaintiff.

While developing and structuring the Examination, PAG and LSO had failed in their legal duty to take into account candidates who come from multi-cultural background.

The discriminative nature of the Examination manifested itself each time the Plaintiff took the Examination and the questions presented did not prompted [sic] the Plaintiff to pick the answer that was considered as being the correct answer.

There has been no proof whatsoever presented by either the LSO or the PAG showing any research or real evidence showing that those lawyer candidates who pass the Examination are more competent than those who failed the Examination. Namely, there is no proof that the Examination has been predictive of future performance of lawyer candidates.

However, there is real factual evidence that the Examination is not only unfair and discriminative but that it does not test whatever it purports to test.

The said real factual evidence is the fact that the Plaintiff failed the Examination whereas in practice, the Plaintiff demonstrated that he is more than competent to practice law as attested by the members of the profession, tribunals and courts.

The Plaintiff submits that psychometric testing as developed by the PAG has already been found by various courts to be discriminatory and unlawful, makes the LSO’s decision, to nonetheless continue to subject lawyer candidates to the Examination without conducting any research on which groups are adversely affected by the Examination or how to alleviate any such discrimination, patently unreasonable.

The Examination’s questions and answers are developed, designed and evaluated by the LSO’s psychometrists in such a way that discriminates against those candidates who think differently or in a uniformed [sic] way and thus discriminates based on racial, cultural and ethnic background of candidates.

The Examination’s evaluation of cognitive abilities and disabilities of lawyer candidates discriminates based on disability which is one of the enumerated grounds in s. 15 of the Charter.

In designing and structuring the Examination, the psychometrists are setting and designing the questions and answers for a particular majority group of individuals knowing that other individuals, who do not share a standard or uniformed [sic] way of reasoning due to having a different ethnic, cultural background than the majority of the group will find it difficult, if not impossible, to pass the Examination.

The Examination’s current structure is discriminatory against those candidates that have a language barrier, a different ethnic or cultural background, or a different mind set than the average Ontarian.

The LSO used to address concerns about the discriminatory nature of its previous bar ad examinations, by offering failing candidates an alternative method of being evaluated. Indeed, on or around October 9, 1998, LSO admitted 28 lawyers to the Ontario bar who has [sic] previously failed bar ad Examinations, by having them evaluated through in-person interview with several Benchers.

[32] With respect to section 7 of the Charter, it is alleged that in exercising its discretion to decide on the proper admission procedure for lawyer candidates, the LSO must conform to the principles of fundamental justice and not subject lawyer candidates to psychometric tests that evaluate cognitive abilities and disabilities, thereby breaching candidates’ psychological security and affecting their psychological integrity.

[33] The Statement of Claim pleads that the right to liberty under section 7 of the Charter is also engaged when the LSO creates unreasonable and discriminatory barriers to the Plaintiff to upgrade his profession. The LSO cannot act unlawfully to restrict the Plaintiff to practise law.

[34] It is further pleaded that the LSO’s failure to provide lawyer candidates who fail the Licensing Examinations with constructive, adequate and fair feedback that will enable the said candidates to learn from their mistakes, is a direct violation of the principles of fundamental justice under section 7 of the Charter. Further, the scoring method that psychometrists use, which is based on the statistical overall outcome of the Licensing Examinations instead of a pre-set passing score, deprives lawyer candidates of knowing and answering the case against them, thus violating the principles of fundamental justice under section 7 of the Charter.

[35] The Statement of Claim states that the LSO’s failure to establish the appropriate checks and balances to ensure that the Licensing Examinations do not unreasonably exclude otherwise qualified candidates violates the principles of fundamental justice and deprived the Plaintiff from procedural fairness. It also states that the fact that Benchers no longer conduct in-person interviews with those lawyer candidates who failed the Licensing Examinations, which was an important step of the appeal process that had ensured that an otherwise competent candidate would be treated fairly, clearly violates the duty of procedural fairness.

4. Demand for particulars

[36] On April 19, 2021, the Defendants served a Demand for Particulars on the Plaintiff. The following particulars were requested:

a. On which enumerated or analogous grounds under section 15 of the Charter do the Licensing Examinations discriminate?

b. Does the Plaintiff allege that he is part of a group against whom the Licensing Examinations discriminate on the basis of race, ethnicity, or national origin?

c. If so, to which race, ethnicity, or national origin does the Plaintiff belong?

d. In what ways do the Licensing Examinations discriminate against members belonging to this racial, ethnic, or national origin group(s)?

e. In what ways, if any, does the alleged discrimination against the classes of people cited by the Plaintiff in response to paragraph (c) above perpetuate the historical or other arbitrary disadvantages of those groups?

f. Does the Plaintiff allege that he suffers from a cognitive or mental disability or impairment?

g. If so, what is the nature or diagnosis of the Plaintiff’s disability or impairment?

h. In what ways do the Licensing Examinations discriminate against those with this disability or impairment?

i. What accommodations would be required to make the Licensing Examinations more fair for someone with the Plaintiff’s disability or impairment?

j. Did the Plaintiff request such accommodations prior to taking the Licensing Examinations?

[37] The Plaintiff served a formal Reply to Demand for Particulars on April 20, 2021 in which he did not answer any of the questions above.

[38] In follow-up correspondence regarding the Demand for Particulars, it was confirmed that the Plaintiff does not allege that he personally suffers from a cognitive disability. Even though this information was not included in the Plaintiff’s formal response to the Demand for Particulars, it was provided in response to the Demand for Particulars and I am prepared to consider it as such given the context of the correspondence.

5. Decision of Corbett J. dated March 1, 2021

[39] Before commencing this action, the Plaintiff commenced an application for judicial review against the LSO in the Divisional Court.

[40] On March 1, 2021, Justice Corbett heard a motion by the Plaintiff to convert his application for judicial review into an action. Ultimately, Justice Corbett transferred the case to the Superior Court of Justice. His endorsement reads as follows (Shaulov v. Law Society of Ontario, 2021 ONSC 1656):

[1] This is a motion by the applicant to convert this application into an action.

[2] The applicant has misunderstood the procedural options available to him. In his application he appears to make two kinds of claims:

(a) allegations that the Law Society’s licensing examinations are ultra vires the Law Society; and

(b) allegations that the Law Society has infringed or denied his rights under ss. 7 and 15 of the Charter by refusing to grant him a license to practice law, or in the manner in which it has established its licensing requirements to the effect that he has not been able to satisfy those requirements.

[3] The claims described in para. 2(a) are properly advanced by application in the Divisional Court: they allege that a statutory decision maker, or a person vested with statutory authority, has acted without jurisdiction in making a statutory decision or exercising a statutory authority.

[4] The claims described in para. 2(b) are either (i) in the exclusive jurisdiction of the Ontario Human Rights Commission, or (ii) claims of violations of constitutional rights that may be pursued in a “court of competent jurisdiction” which, in Ontario, is the Superior Court of Justice.

[5] Application materials have now been exchanged and the application should be ready to proceed, but now Mr Shalov [sic] wishes to convert the application into an action, obtain discovery from the Law Society related to the way in which it devised its examinations, and, in addition, Mr Shaulov wishes to add a private contractor of the Law Society to the action because of its role assisting the Law Society to set its examinations. The reason Mr Shaulov wants to do these things is that the core claims he advances in this case relate to the qualities of the examinations mandated by the Law Society, and not the Law Society’s jurisdiction to require and set examinations.

[6] The Divisional Court does not hear actions. It does not hear oral testimony. It sits in panels of three judges on the basis of a written record compiled by the parties ahead of the hearing, usually based on the written record before the tribunal or statutory delegate whose decision or conduct is under review. There is no case of which I am aware in which the Divisional Court has converted an application for judicial review into an action and then conducted a full trial of the action before a panel of the court. Mr Shaulov referenced the Rules and jurisprudence in respect to applications brought in the Superior Court, which may be converted into actions in some circumstances. In my view those cases have no application to practice in Divisional Court, which is an intermediate appeal and review court and not a trial court.

[7] Given all the circumstances, I transfer this case to the Superior Court of Justice, strike out the Notice of Application, and direct Mr Shaulov to serve and file a Statement of Claim asserting claims properly in the jurisdiction of the Superior Court of Justice in respect to the subject matter of the current application. For limitations purposes, the claim against the Law Society will be deemed to have been commenced when the application was commenced in this court. Claims against any other parties will be deemed to have been commenced on the date the Statement of Claim is issued.

[Emphasis added.]

Positions of the parties

1. Position of the Defendants

[41] The Defendants summarize the issues to be determined on this motion as follows:

a. Should the Plaintiff’s claims under the Charter be struck for failing to disclose a reasonable cause of action or for lack of standing?

b. Should the Plaintiff’s claims that the Licensing Examinations are ultra vires the LSA be struck for failing to disclose a reasonable cause of action?

c. Should the Plaintiff’s claims under the Code be struck for being outside of the jurisdiction of the Superior Court?

[42] The Defendants submit that section 7 of the Charter does not protect the right to engage in the economic activity of one’s choice or the right to practise a profession. They further submit that being required to write an examination in order to obtain a licence to practise a profession does not breach the Plaintiff’s: (a) right to liberty, as this requirement does not infringe on a choice that goes to the core of what it means to enjoy individual dignity and independence; and (b) right to security of the person, as this requirement does not have a serious and profound effect on a person’s psychological integrity in a way that is greater than ordinary stress or anxiety. The Defendants state that the Plaintiff has not pleaded any facts in support of his alleged denial of procedural fairness.

[43] The Defendants argue that the Plaintiff lacks private interest standing to advance claims of discrimination on the basis of cognitive disability because he does not belong to a group of individuals who live with mental disability, and he is not personally affected by the alleged discrimination. It is the Defendants’ position that public interest standing should not be granted to the Plaintiff based on a review of the relevant factors.

[44] In response to the Plaintiff’s argument that the LSO discriminated against him on the basis of a mistaken belief that he suffers from a cognitive disability (i.e., a “perceived disability”), the Defendants state that such an allegation does not appear in the Statement of Claim and was raised for the first time in the Plaintiff’s responding factum. Among other things, the Plaintiff has not pleaded that the LSO treated him differently from other licensing candidates on the basis that the LSO believed he suffered from a cognitive disability.

[45] With respect to the Plaintiff’s allegation that the Licensing Examination procedures discriminate against him on the basis of his West Asian origin, the Defendants submit that the Plaintiff has failed to articulate any facts to support this bald allegation of discrimination, including any facts showing that the Defendants have exacerbated or perpetuated any disadvantage faced by West Asians in the licensing process.

[46] The Defendants argue that even if the Plaintiff had articulated a viable claim under section 15(1) of the Charter, his claim would nonetheless be doomed by section 15(2) of the Charter as the impugned reforms to the LSO’s Licensing Examination procedures were implemented in order to improve outcomes for certain historically disadvantaged groups. They submit that section 15(1) cannot be used to impugn an ameliorative program on the basis that it is under-inclusive.

[47] According to the Defendants, if the Plaintiffs’ Charter claims are not struck on other grounds, they must be struck as against the Non-LSO Defendants as they are private parties who do not fall within the purview of “government” for the purposes of section 32 of the Charter. The Defendants state that bringing a party into an action solely to obtain their evidence on discovery is not a proper basis for joining that party to an action and is an abuse of process.

[48] The Defendants argue that the Plaintiff’s allegations that the Licensing Examinations are ultra vires the LSA because they do not promote learning, are not merit-based and test cognitive abilities are incapable of proof. They also argue that these allegations are contrary to the plain wording of the LSA which endows the LSO with broad authority over the regulation of the legal profession in Ontario, including entry-level qualifications of the profession. It is the Defendants’ position that from the facts pled by the Plaintiff and the ordinary grammatical interpretation of the relevant sections of the LSA, it is apparent that the Licensing Examinations are within the LSO’s jurisdiction under the LSA.

[49] Finally, the Defendants submit that if the court strikes the balance of the Plaintiff’s claims against any or all of the Defendants, the court is bound to dismiss the Plaintiff’s claims pursuant to the Code because, based on section 46.1(2) of the Code, the Plaintiff cannot sustain a civil claim for solely a breach of section 6 of the Code.

2. Position of the Plaintiff

[50] The Plaintiff takes the position that a motion under Rule 21 is inappropriate in Charter cases as such cases require a factual analysis and the Constitution is a living tree. The Plaintiff also argues that his claim under section 7 of the Charter is novel and should be examined by the court at trial.

[51] According to the Plaintiff, the Licensing Examinations impose mental, psychological and physical constraints which engage section 7 of the Charter, regardless of the purpose of the Licensing Examinations. Therefore, the Plaintiff argues, the alleged violation of section 7 is not based on an alleged right to practise a chosen profession. The Plaintiff states that the only right that he is claiming is the right to be free from physical and psychological constraints that affect the Plaintiff’s psychological security and integrity when going through the licensing process. It is the Plaintiff’s position that although he might not have the right to practise his chosen profession, he has the right to have a free access to the examination process without being subjected to physical and mental constraints, and the process has to be in accordance with the principles of fundamental justice.

[52] With respect to his claim under section 15 of the Charter, the Plaintiff submits that the discriminatory and restrictive nature of the Licensing Examinations affected him personally and he has a personal interest in the outcome of the case. Consequently, he is not required to obtain public interest standing. It is the Plaintiff’s position that the Licensing Examinations discriminate against him personally based on his race, ethnicity, origin and because they test the Plaintiff’s cognitive abilities and disabilities.

[53] The Plaintiff argues that in order to disclose a cause of action under section 15 of the Charter, he does not necessarily need to plead that he suffers from actual cognitive disability as a mere perception of disability is sufficient to trigger a claim. He also states the following in his Factum:

Considering the fact that the Examinations purport to test cognitive abilities and disabilities and the Plaintiff failed the said Examination four (4) times, the Examinations showed (if it will be established that the Examinations test whatever it purports to test) that the Plaintiff has cognitive disability that prevents him from passing the Examinations.

[54] The Plaintiff argues that section 15(2) of the Charter does not apply because this is not a case of “reverse discrimination”. The Plaintiff also points out that the Defendants have the burden of proof to show that the Licensing Examinations fall within the scope of section 15(2) and he submits that this will inevitably require a trial and cannot be decided in the context of a Rule 21 motion.

[55] The Plaintiff states that he has never put in question the ability of the LSO to regulate the profession and adopt regulations or By-Laws, but he questions the manner and means by which the LSO exercised its discretion by adopting By-Laws that impose discriminatory and non-merit-based Licensing Examinations that use a biased and arbitrary scoring method. The Plaintiff argues that the LSO is not immune from the court’s scrutiny of its exercise of discretion pursuant to its enabling legislation.

[56] The Plaintiff submits that his challenge to the LSO’s exercise of discretionary power requires a trial where the court will have the benefit of a complete factual context which will allow it to properly scrutinize the exercise of discretionary power and determine whether it is ultra vires.

[57] The Plaintiff states that he has never made any Charter claims against the Non-LSO Defendants, and that his claim against these Defendants is only under the Code. He also argues that the Non-LSO Defendants were added to the proceeding because their rights and obligations are affected by the action, and they are essential parties to the proceedings because they may have valuable information and documents to be produced during examination for discovery. He states the following in his Factum:

In order for the Plaintiff to be able to effectively cross-examine PAG’s directors and the court to assess credibility, PAG was added as a necessary party into the Action in accordance with Rule 5.03 (1), (4).

[58] Finally, the Plaintiff submits in the alternative that leave to amend his pleading should be granted in the event the court finds that the Plaintiff needs to obtain public interest standing or there is any other deficiency in the Statement of Claim.

Discussion

[59] I review below the causes of action alleged in this action, i.e. claims under sections 7 and 15 of the Charter, claims under the Code, and claims that the Licensing Examinations are ultra vires the LSA (and other “judicial review type” claims such as breach of procedural fairness). The relief sought by the Plaintiff also includes orders that do not constitute free-standing causes of action, such as orders for documentary production, which depend on the existence of a valid cause of action.

[60] Before turning to the specific causes of action alleged in this case, I discuss the general principles applicable to a motion to strike under Rule 21.01(1)(b) of the Rules of Civil Procedure.

1. General principles applicable to a motion to strike

[61] On a Rule 21.01(1)(b) motion, a pleading will only be struck out if, assuming the facts pleaded to be true, it is plain and obvious that it discloses no reasonable cause of action – that is, where the pleading has no reasonable prospect of success: Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618 at para. 18.

[62] The Court of Appeal set out the principles applicable to a motion to strike in McCreight v. Canada (Attorney General), 2013 ONCA 483 at para. 39 (“McCreight”):

• In the interests of efficiency and correct results, there is a need to weed out hopeless claims – this housekeeping dimension underlies rule 21.

• If the cause of action pleaded has been recognized, all of its essential elements must be pleaded.

• If the cause of action has not been recognized, this is not necessarily fatal. One must ask whether there is a reasonable prospect that the claim will succeed.

• The claim should not be struck merely because it is novel.

• Unless manifestly incapable of being proven, the facts pleaded are accepted as being true for the purposes of the motion.

• The pleading forms the basis of the motion; possible future facts that have not been pleaded may not supplement the pleading.

• No evidence is admissible on such a motion.

• The pleading must be read generously in favour of the plaintiff, with allowances for drafting deficiencies.

• A motion to strike should not be confused with a summary judgment motion which has a different test, a different purpose, and different rules relating to evidence.

[63] Although the court must accept as true the material facts as pleaded, this obligation does not extend to bald conclusory statements of fact, unsupported by material facts: Trillium Power Wind Corporation v. Ontario (Natural Resources), 2013 ONCA 683 at para. 31.

[64] While no evidence is permitted on a motion to strike, the court may consider documents referred to in the claim. For a document to be properly considered as being incorporated by reference into the pleading, it is not enough that it has been referenced in the statement of claim. It must “form an integral part of the plaintiff’s claim” or of the “factual matrix of the statement of claim”: see McCreight at para. 32 and Allan Etherington v. National Hockey League, 2020 ONSC 5789 at para. 127.

[65] In determining whether a cause of action is disclosed, particulars can be considered as part of the pleading: Gaur v. Datta, 2015 ONCA 151 at para. 5.

[66] While a pleading may be struck, leave to amend should be denied only in the clearest of cases. The fact that the allegations are bald is not, in itself, a basis for refusing leave. It is only where it is clear that the plaintiff cannot allege further material facts that the plaintiff knows to be true to support the allegations that leave to amend will be refused. The fact that amendments may have previously been made is a relevant consideration. See Miguna v. Ontario (Attorney General) at para. 22, Tran v. University of Western Ontario, 2015 ONCA 295 at para. 27, and Horfil Holding Corp. v. Queens Walk Inc., 2019 ONSC 1381 at paras. 33-34.

[67] Contrary to the principles set out above, the parties have filed evidence on this motion, which consists mostly of documents that are referred to in the Statement of Claim. In my view, a large part of this evidence is inadmissible as the documents do not meet the test for a document to be properly considered as being incorporated by reference into a pleading. However, given my analysis below, it is not necessary for me to decide the admissibility of each and every document that was filed by the parties. I only address below the admissibility of the documents that are relevant to my analysis and when it is necessary to do so in light of the arguments advanced by the parties with respect to the legal issues raised on this motion.

2. Claims under section 7 of the Charter

[68] I reject the Plaintiff’s submission that different rules apply to motions to strike in Charter cases. This is not supported by the case law. I also note that the applicable tests under sections 7 and 15 of the Charter are well-established.

[69] In order to engage the operation of section 7 of the Charter, a plaintiff must plead facts to establish a deprivation of their right to life, right to liberty or right to security of the person. The claim must then set out facts to show that any deprivation of these rights was effected in a manner contrary to the principles of fundamental justice. See Ogiamen v. Peel Regional Police, 2017 ONSC 2312 at para. 30.

[70] The right to life is not in issue in this case. The right to liberty guaranteed by section 7 grants the individual a degree of autonomy in making decisions of fundamental personal importance without interference from the state. Liberty means more than freedom from physical restraint and includes the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference. However, this is true only to the extent that such matters can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence. See R. v. Malmo-Levine, 2003 SCC 74 at para. 85.

[71] The right to security of the person under section 7 protects both the physical and psychological integrity of the individual. With respect to the latter, for a restriction of security of the person to be made out, the impugned state action must have a serious and profound effect on a person’s psychological integrity. Outside of the penal context, violations of security of the person include only serious psychological incursions resulting from state interference with an individual interest of fundamental importance. The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility. This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety. See New Brunswick (Minister of Health and Community Services) v. G. (J.), 1999 SCC 653 at paras. 58-60 (“G.(J.)”) and Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 at paras. 81-82, 86 (“Blencoe”).

[72] Section 7 of the Charter does not protect the right to practise a profession and the right to engage in the economic activity of one’s choice: see Mussani v. College of Physicians and Surgeons of Ontario at paras. 39-43 (C.A.), R. v. Schmidt, 2014 ONCA 188 at para. 38 and Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482 at paras. 35-45 (“Tanase”).

[73] The Supreme Court of Canada confirmed in Siemens v. Manitoba (Attorney General), 2003 SCC 3 at paras. 45-46 that section 7 of the Charter only encompasses fundamental life choices, not pure economic interests. It stated the following:

45 The appellants also submitted that s. 16 of the [The Gaming Control Local Option (VLT) Act] violates their right under s. 7 of the Charter to pursue a lawful occupation. Additionally, they submitted that it restricts their freedom of movement by preventing them from pursuing their chosen profession in a certain location, namely, the Town of Winkler. However, as a brief review of this Court’s Charter jurisprudence makes clear, the rights asserted by the appellants do not fall within the meaning of s. 7. The right to life, liberty and security of the person encompasses fundamental life choices, not pure economic interests. As La Forest J. explained in Godbout v. Longueuil (City), 1997 SCC 335 at para. 66:

. . . the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence.

More recently, Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, concluded that the stigma suffered by Mr. Blencoe while awaiting trial of a human rights complaint against him, which hindered him from pursuing his chosen profession as a politician, did not implicate the rights under s. 7. See Bastarache J., at para. 86:

The prejudice to the respondent in this case . . . is essentially confined to his personal hardship. He is not “employable” as a politician, he and his family have moved residences twice, his financial resources are depleted, and he has suffered physically and psychologically. However, the state has not interfered with the respondent and his family’s ability to make essential life choices. To accept that the prejudice suffered by the respondent in this case amounts to state interference with his security of the person would be to stretch the meaning of this right.

46 In the present case, the appellants’ alleged right to operate [video lottery terminals] at their place of business cannot be characterized as a fundamental life choice. It is purely an economic interest. The ability to generate business revenue by one’s chosen means is not a right that is protected under s. 7 of the Charter.

[74] While the Plaintiff argues on this motion that the violation of section 7 that he alleges is not based on the right to practise a chosen profession, this is contradicted by the Statement of Claim which states the following in paragraph 180:

The right under s. 7 of the Charter also engages under the right of liberty, when the LSO creates unreasonable and in a discriminatory manner barrier to the Plaintiff to upgrade his already practicing profession as a tax auditor in order to be able to represent his tax clients in certain tax court proceedings. Namely, the LSO cannot act unlawfully to restrict the Plaintiff to practice law.

[75] In any event, it is my view that the rights guaranteed under section 7 are not engaged in the context of written examinations that are part of a regulated profession’s licensing process. The right to liberty is not engaged as the only reason to write the Licensing Examinations is to be able to pursue a profession, which is not a protected interest under section 7. Further, it cannot be said that the Licensing Examinations interfere with the Plaintiff’s ability to make decisions of fundamental personal importance.

[76] As for the right to the security of the person, the Statement of Claim does not explain how the Licensing Examinations allegedly interfered with the Plaintiff’s psychological integrity. As stated above, the effects of the state interference must be assessed objectively. A requirement to do a written examination as part of the licensing process, even a psychometric examination, does not constitute state interference with an individual interest of fundamental importance, especially in light of the fact that the right to pursue a chosen profession is not a protected interest under section 7. In Tanase, the Court of Appeal noted at paragraph 44 that in G.(J.), a violation of the right to psychological integrity was found where a mother was facing the possibility that the state would sever her relationship with her child. The Court of Appeal expressed the view that decisions taken in the context of professional discipline paled in comparison to the profound interference with family autonomy in G.(J.). The same could be said with respect to the requirement to write certain types of examinations to gain access to a profession. Such a requirement does not qualify as a state interference with an individual interest of fundamental importance that results in a serious psychological incursion: Blencoe at para. 82.

[77] As the Supreme Court of Canada did in Blencoe, I conclude that it would stretch the meaning of the right to security of the person to accept that any negative effect experienced by the Plaintiff as a result of voluntarily writing the Licensing Examinations amounts to state interference with his security of the person: see Blencoe at para. 86.

[78] Since no recognized deprivation of the right to liberty and/or security of the person has been alleged, it is not necessary to discuss whether any deprivation of these rights was effected in a manner contrary to the principles of fundamental justice.

[79] Accordingly, I find that the Statement of Claim discloses no reasonable cause of action under section 7 of the Charter. This claim is struck without leave to amend.

3. Claim under section 15 of the Charter

[80] A claim that alleges a breach of section 15 of the Charter must contain sufficient material facts to support the allegation that: (1) on its face or in its impact, the state action creates a distinction based on a prohibited ground (either enumerated or analogous); and (2) the state action imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage: see Meekis v. Ontario, 2021 ONCA 534 at paras. 133-134, 146.

[81] The Plaintiff alleges that the Licensing Examinations discriminate on the basis of: (1) cognitive disability; and (2) racial, ethnic and cultural background. I examine each of these claims below.

a. Standing to advance a claim based on cognitive disability

[82] With respect to the alleged discrimination based on cognitive disability, I agree with the Defendants that the Plaintiff lacks private interest standing to advance this claim.

[83] To have private interest standing, a person must have a personal and direct interest in the issue being litigated. They must themselves be specifically affected by the issue. It is not enough that the person has a sense of grievance or will gain the satisfaction of righting a wrong or is upholding a principle. A person must have a personal legal interest in the outcome. See Carroll v. Toronto-Dominion Bank, 2021 ONCA 38 at para. 33.

[84] The Plaintiff confirmed in response to the Defendants’ demand for particulars that he does not live with a cognitive disability. Therefore, he does not have a personal and direct interest in the issue of discrimination based on cognitive disability, and he is not specifically affected by this issue.

[85] Where the party initiating the litigation has a personal legal interest in the outcome, standing exists as of right. If a person does not have private interest standing, the court may exercise its discretion and grant public interest standing to that person because the court concludes that it is in the public interest that the case proceed and the proposed applicant is an appropriate person to bring it. See Landau v. Ontario (Attorney General), 2013 ONSC 6152 at para. 21.

[86] In exercising the discretion to grant public interest standing, the court must consider three factors: (1) whether there is a serious justiciable issue raised; (2) whether the plaintiff has a real stake or a genuine interest in it; and (3) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts: see Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 at para. 37 (“Downtown Eastside”). These three factors must be assessed in a flexible and purposive manner and weighed in light of the other factors.

[87] Turning to the first factor, justiciability is not an issue in this case. To constitute a “serious issue”, the question raised must be a substantial constitutional issue or an important one. The claim must be far from frivolous, although courts should not examine the merits of the case in other than a preliminary manner. See Downtown Eastside at para. 42.

[88] Based strictly on the allegations that have been pleaded in the Statement of Claim, it is doubtful that there is a serious issue raised with respect to discrimination on the basis of cognitive disability. The Plaintiff’s position that there is discrimination on this basis appears to be premised on the argument that because the Licensing Examinations assess cognitive abilities, they must also test cognitive disabilities. This argument is fallacious as the fact that a person does not have a particular ability does not mean that the person has a disability. For instance, the fact that someone does not have the ability to read music or the ability to perform complex mathematical calculations does not mean that they live with a mental disability.

[89] However, given the lack of information before this court regarding any distinction based on a “true” cognitive or mental disability, I am not prepared to find that, generally speaking, there can be no serious justiciable issue with respect to the Licensing Examinations discriminating on the basis of cognitive disability.

[90] The second factor is concerned with whether the plaintiff has a real stake in the proceedings or is engaged with the issues they raise. The court can consider the plaintiff’s reputation, continuing interest, and link with the claim to assess the plaintiff’s engagement and to ensure an economical use of scarce judicial resources: Downtown Eastside at para. 43. In the case at bar, the Plaintiff does not suffer from any cognitive disability, nor does he plead that he represents anyone who does. Despite the fact that the Plaintiff’s standing with respect to this issue is squarely raised in the Notice of Motion, the record before me does not disclose any connection between the Plaintiff and the cause of combating discrimination against those living with a mental disability, nor does it show that the Plaintiff has been engaged with this issue.

[91] In applying the third factor of the test, courts should consider whether the proposed action is an economical use of judicial resources, whether the issues are presented in a context suitable for judicial determination in an adversarial setting, and whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality. The following are some examples of relevant matters to take into account when applying the third factor:

a. The plaintiff’s capacity to bring forward a claim. In considering the plaintiff’s capacity, the court should examine, among other things, the plaintiff’s resources, expertise and whether the issue will be presented in a sufficiently concrete and well-developed factual setting.

b. Whether the case is of public interest in the sense that it transcends the interests of those most directly affected by the challenged law or action.

c. Whether there are realistic alternative means which would favour a more efficient and effective use of judicial resources and would present a context more suitable for adversarial determination. The existence of other potential plaintiffs, particularly those who would have standing as of right, is relevant, but the practical prospects of their bringing the matter to court at all or by equally or more reasonable and effective means should be considered in light of the practical realities, not theoretical possibilities.

d. The potential impact of the proceedings on the rights of others who are equally or more directly affected.

See Downtown Eastside at paras. 44, 50-51.

[92] In my view, when considering the circumstances of this case, this action is not a reasonable and effective way to bring the issue of alleged discrimination based on cognitive disability before the court. The Plaintiff is self-represented and does not have any special expertise with respect to issues related to cognitive or mental disabilities. Given this and the fact that he does not live with a cognitive disability, it does not appear that the issue of discrimination will be presented in a sufficiently concrete and well-developed factual setting. The Plaintiff has not alleged that there are no potential plaintiffs living with a cognitive disability who could bring the matter to court. Further, I note that the outcome of a Charter challenge brought in suboptimal circumstances could be prejudicial to persons who are living with cognitive disabilities.

[93] After considering the relevant factors outlined in Downtown Eastside, I decline to grant public interest standing to the Plaintiff with respect to allegations of discrimination based on cognitive disability contrary to section 15(1) of the Charter. Therefore, this claim is struck without leave to amend.

b. Claim based on perceived cognitive disability

[94] The Plaintiff alleges in one paragraph in his Statement of Claim that the LSO’s by-law and Licensing Process Policies create a distinction based on perceived cognitive disability. The exact nature of the perceived cognitive disability that is alleged is not described in the Statement of Claim. However, it appears to stem entirely from the fact that the Plaintiff failed the Licensing Examinations.

[95] There is no standing issue with respect to this claim as the Plaintiff allegedly was specifically affected by the perception of cognitive disability. As a result, he has a personal and direct interest in this question.

[96] However, the Plaintiff’s allegation that he was discriminated against based on a perceived disability raises a number of issues. One problem is that he does not allege that anyone believed that he was living with a cognitive disability at any time during the licensing process. Among other things, there are no allegations that the Plaintiff was treated differently from other licensing candidates on the basis that the LSO believed that he suffered from a cognitive disability. There are also no allegations that the licensing process itself creates a distinction based on mental disability, either on its face or in its impact, and that the Plaintiff suffered the effects of this distinction as a result of being perceived to be a person who lives with a cognitive disability. The Plaintiff cannot simply rely on the result of a process and argue that this result was caused by a perceived disability. He has to plead material facts in support of the allegation that he was perceived to be a person who lives with a cognitive disability and that this perception was the cause for or contributed to the result. If the Plaintiff was not personally perceived or believed to live with a cognitive disability, then the discussion above regarding standing would apply.

[97] Another problem with the Plaintiff’s allegation that he was discriminated against based on a perceived disability is that it is grounded in the same fallacious argument that because the Licensing Examinations assess cognitive abilities, they must also test cognitive disabilities. Applying the Plaintiff’s logic, every single person who fails the Licensing Examinations is automatically perceived to have a cognitive disability, and there is discrimination as soon as one person fails the Licensing Examination.

[98] In my view, the Plaintiff’s argument with respect to discrimination based on a perceived cognitive disability is entirely circular, has no support in the facts that have been pleaded and has no reasonable prospect of success. As a result, this claim is struck without leave to amend.

c. Claim based on racial, ethnic and cultural background

[99] As stated above, the Plaintiff alleges that the Licensing Examinations discriminate on the basis of racial, ethnic and cultural background. There is also reference to a language barrier. Among other things, the Plaintiff alleges the following:

The Examination structure, process and method of scoring as developed by the PAG and approved by Convocation discriminates [sic] as against individuals of the same ethnical, racial, and cultural background as the Plaintiff by failing to take into account the divers [sic] way of thinking, reasoning, analysing and processing information as typically done by individuals with similar background as the Plaintiff.

In designing and structuring the Examination, the psychometrists are setting and designing the questions and answers for a particular majority group of individuals knowing that other individuals, who do not share a standard or uniformed [sic] way of reasoning due to having a different ethnic, cultural background than the majority of the group will find it difficult, if not impossible, to pass the Examination.

The Examination’s current structure is discriminatory against those candidates that have a language barrier, a different ethnic or cultural background, or a different mind set than the average Ontarian.

[100] The Plaintiffs’ allegations of discrimination on these grounds are, for the most part, bald and not supported by material facts. The Plaintiff pleads that he is a person of West Asian origin with Persian/Russian/Uzbek Jewish background, but he does not plead in what ways the Licensing Examinations discriminate against members of this group (or these groups). Among other things, he does not plead a differential impact on the members of this/these group(s) (except for his own personal failure to pass the Licensing Examinations) or the manner in which persons with this background have a different “way of thinking, reasoning, analysing and processing information” than the majority. Further, the Plaintiff does not plead in what ways the alleged discrimination reinforces, perpetuates or exacerbates disadvantages experienced by this/these group(s).

[101] As stated above, a claim that alleges breaches of section 15 of the Charter must contain sufficient material facts to support the allegation that: (1) on its face or in its impact, the state action creates a distinction based on a prohibited ground (either enumerated or analogous); and (2) the state action imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage. Since the Plaintiff has failed to plead material facts in support of all the elements of a cause of action under section 15 of the Charter, this claim must be struck.

[102] However, it is my view that leave to amend should be granted to the Plaintiff with respect to his claim of alleged violation of section 15 of the Charter based on racial, ethnic and cultural background. It is not clear that the Plaintiff cannot allege further material facts that he knows to be true to support his allegations. Thus, this is not one of the clearest cases where leave to amend should be denied and I conclude that the Plaintiff should not be deprived of the opportunity to attempt to remedy his deficient pleading.

[103] Leave to amend is only granted to the Plaintiff with respect to allegations of discrimination that relate to racial, ethnic and/or cultural characteristics that apply to the Plaintiff. To the extent that the current version of the Statement of Claim contains general allegations of discrimination based on racial, ethnic and/or cultural background that do not specifically affect the Plaintiff, the Plaintiff does not have standing to bring these claims. The discussion above regarding standing in relation to the claim based on cognitive disability applies mutatis mutandis to a claim based on racial, ethnic and cultural background that the Plaintiff does not share.

d. Section 15(2) of the Charter

[104] I reject the Defendants’ submission that leave to amend should not be granted because the Plaintiff’s claim under section 15(1) is “doomed” in light of the fact that section 15(2) applies.

[105] Section 15(2) provides as follows:

Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[106] The Supreme Court of Canada stated the following with respect to the purpose of section 15(2) in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37 at paras. 40-41 (“Cunningham”):

[40] Second, s. 15(2) is aimed at permitting governments to improve the situation of members of disadvantaged groups that have suffered discrimination in the past, in order to enhance substantive equality. It does this by affirming the validity of ameliorative programs that target particular disadvantaged groups, which might otherwise run afoul of s. 15(1) by excluding other groups. It is unavoidable that ameliorative programs, in seeking to help one group, necessarily exclude others.

[41] The purpose of s. 15(2) is to save ameliorative programs from the charge of “reverse discrimination”. Ameliorative programs function by targeting specific disadvantaged groups for benefits, while excluding others. At the time the Charter was being drafted, affirmative action programs were being challenged in the United States as discriminatory — a phenomenon sometimes called reverse discrimination. The underlying rationale of s. 15(2) is that governments should be permitted to target subsets of disadvantaged people on the basis of personal characteristics, while excluding others. It recognizes that governments may have particular goals related to advancing or improving the situation of particular subsets of groups. Section 15(2) affirms that governments may not be able to help all members of a disadvantaged group at the same time, and should be permitted to set priorities. If governments are obliged to benefit all disadvantaged people (or all subsets of disadvantaged people) equally, they may be precluded from using targeted programs to achieve specific goals relating to specific groups. The cost of identical treatment for all would be loss of real opportunities to lessen disadvantage and prejudice. [Emphasis in the original.]

[107] If a public body relies on section 15(2) to defend a distinction against the claimant group on the basis of one of the grounds set out in s. 15(1) or an analogous ground, the public body must show that the program is a genuinely ameliorative program directed at improving the situation of a group that is in need of ameliorative assistance in order to enhance substantive equality. There must be a correlation between the program and the disadvantage suffered by the target group. Courts must examine the program to determine whether, on the evidence, the declared purpose is genuine; a naked declaration of an ameliorative purpose will not attract s. 15(2) protection against a claim of discrimination. See Cunningham at para. 44.

[108] If these conditions are met, section 15(2) protects all distinctions drawn on enumerated or analogous grounds that “serve and are necessary to” the ameliorative purpose. Proof that the exclusion is essential to realizing the object of the ameliorative program is not required. What is required is that the impugned distinction in a general sense serves or advances the object of the program, thereby supporting the overall goal of substantive equality under section 15(1) of the Charter. Thus, distinctions that might otherwise be claimed to be discriminatory are permitted under section 15(2), to the extent that they go no further than is justified by the object of the ameliorative program. To be protected, the distinction must in a real sense serve or advance the ameliorative goal, consistent with the purpose of promoting substantive equality. See Cunningham at para. 45.

[109] The Defendants cannot establish the conditions set out above on this motion to strike, where no evidence is admissible. The facts alleged in the Statement of Claim, which are to be accepted as being true for the purpose of this motion, are insufficient to prove all of the conditions set out above that are required for section 15(2) to apply. Further, the Defendants’ attempt to rely on transcripts and minutes of Convocation meetings is both insufficient and impermissible. It is insufficient as these documents do not clearly establish the nature of the alleged “ameliorative program” in the context of Licensing Examinations – which are required to be written by all candidates. In addition, there is no evidence, among other things, that the distinctions that are made in favour of certain groups go no further than is justified by the object of the ameliorative program. Moreover, the Defendants’ reliance on transcripts and minutes is not permitted on this motion to strike. While these documents may be referenced in the Statement of Claim, I am of the view that they constitute evidence and are not properly considered as forming an integral part of the factual matrix of the Plaintiff’s claim: see McCreight at para. 35.

4. Claims under the Code

[110] The Plaintiff relies on three sections of the Code: sections 6, 10(3) and 11(1). They read as follows:

Vocational associations

6 Every person has a right to equal treatment with respect to membership in any trade union, trade or occupational association or self-governing profession without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

Past and presumed disabilities

10 (3) The right to equal treatment without discrimination because of disability includes the right to equal treatment without discrimination because a person has or has had a disability or is believed to have or to have had a disability.

Constructive discrimination

11 (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

[111] A plaintiff who makes discrimination claims under the Code is required to show that: (1) they have a characteristic protected from discrimination (or were believed to have or to have had a disability); (2) they experienced an adverse impact in how they were treated; and (3) the protected characteristic was a factor in the adverse impact: Anoquot v. Toronto Police Services Board, 2015 ONSC 553 at para. 23.

[112] The Plaintiff’s claims under the Code based on disability or a perceived/believed disability are struck for the reasons outlined above with respect to the same claims under section 15 of the Charter. This leaves the allegations of discrimination based on racial, ethnic and cultural background. For the reasons discussed in more detail above in relation to the same claims under section 15 of the Charter, these claims are also struck for failure to plead material facts in support of all the essential elements of this cause of action, but with leave to amend. As stated above, leave to amend is only granted to the Plaintiff with respect to allegations of discrimination that relate to racial, ethnic and/or cultural characteristics that apply to the Plaintiff. Further, leave is only granted with respect to the Plaintiff’s claim against the LSO under the Code, but not with respect to his claim against the Non-LSO Defendants.

[113] Section 46.1 of the Code provides the following:

Civil remedy

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

Same

(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.

[114] While I have granted the Plaintiff leave to amend his claim under the Code as against the LSO, amendments with respect to a claim under the Code can only be viable if the Plaintiff’s amendments also disclose a reasonable cause of action under section 15 of the Charter for discrimination on the basis of racial, ethnic and cultural background, i.e. the only other cause of action for which I am granting leave to amend. If the Plaintiff’s amended claim does not disclose a reasonable cause of action under section 15, he is barred under section 46.1(2) of the Code from advancing a civil action against the LSO based solely on an infringement of section 6 of the Code: see Incognito v. Skyservice Business Aviation Inc., 2022 ONSC 1795 at para. 16.

[115] With respect to the Non-LSO Defendants, the Plaintiff states in his Factum that his claim against them is only under the Code and that he is not making any claims against them under the Charter. Any other position would be incorrect in light of section 32 of the Charter and the fact that the Non-LSO Defendants are private actors (i.e., not government actors) who are not performing governmental activities: see Eldridge v. British Columbia (Attorney General), 1997 SCC 327 at para. 44.

[116] The fact that the Plaintiff is only asserting a claim under the Code with respect to the Non-LSO Defendants triggers the application of section 46.1(2) of the Code. As a result, this claim must be struck as the Plaintiff can only seek a civil remedy in court with respect to a breach of the Code in connection with another wrong.

[117] Given that no cause of action is properly alleged against the Non-LSO Defendants, they are not proper parties to this action and the Statement of Claim is struck as against them without leave to amend. Further, I reject the Plaintiff’s argument that it is necessary for the Non-LSO Defendants to be joined as parties to enable the court to adjudicate effectively and completely on the claims that may be validly alleged against the LSO in this proceeding. This is simply not the case given, among other things, the fact that the Rules of Civil Procedure include mechanisms to obtain relevant evidence from non-parties.

5. Claims that the Licensing Examinations are ultra vires the LSA

[118] In addition to the relief sought under the Charter and the Code, the Plaintiff seeks, among other things, a declaration that the Licensing Examinations’ structure, process and method of evaluation are unreasonable and ultra vires of the LSA, an order setting aside the LSO’s decision dated October 1, 2020 deeming the Plaintiff’s application to have been abandoned, an order compelling the LSO to conduct an assessment interview of the Plaintiff to allow him to show his competence to practise law in Ontario, and an order compelling the LSO to admit the Plaintiff to the Bar and issue a L1 licence to the Plaintiff (“Non-Charter Claims”).

[119] In my view, this Court does not have jurisdiction over the Non-Charter Claims.

[120] Section 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”) provides that “[s]ubject to subsection (2), an application for judicial review shall be made to the Divisional Court.” [Emphasis added.] The exception set out in section 6(2) deals with urgent applications for judicial review, which can be heard in the Superior Court with leave of a judge of that Court. The urgency exception does not apply in this case.

[121] Given the mandatory language in section 6(1) of the JRPA, unless an application for judicial review is urgent, it must be heard by the Divisional Court. See Alford v. The Law Society of Upper Canada, 2018 ONSC 4269 at para. 21 (“Alford”).

[122] Section 1 of the JRPA defines an application for judicial review as “an application under subsection 2 (1)”, which in turn provides as follows:

2 (1) On an application by way of originating notice, which may be styled “Notice of Application for Judicial Review”, the court may, despite any right of appeal, by order grant any relief that the applicant would be entitled to in any one or more of the following:

1. Proceedings by way of application for an order in the nature of mandamus, prohibition or certiorari.

2. Proceedings by way of an action for a declaration or for an injunction, or both, in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

[123] “Statutory power” and “statutory power of decision” are defined in section 1 of the JRPA:

“statutory power” means a power or right conferred by or under a statute,

(a) to make any regulation, rule, by-law or order, or to give any other direction having force as subordinate legislation,

(b) to exercise a statutory power of decision,

(c) to require any person or party to do or to refrain from doing any act or thing that, but for such requirement, such person or party would not be required by law to do or to refrain from doing,

(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person or party; (“compétence légale”)

“statutory power of decision” means a power or right conferred by or under a statute to make a decision deciding or prescribing,

(a) the legal rights, powers, privileges, immunities, duties or liabilities of any person or party, or

(b) the eligibility of any person or party to receive, or to the continuation of, a benefit or licence, whether the person or party is legally entitled thereto or not,

and includes the powers of an inferior court. (“compétence légale de décision”)

[124] With respect to the Non-Charter Claims, the Plaintiff seeks orders in the nature of mandamus (issuing of a licence and compelling an interview) and certiorari (setting aside of the LSO’s decision), as well as declaratory relief in relation to the LSO’s exercise of a statutory power (ultra vires, unreasonableness and procedural fairness allegations).

[125] A number of decisions have confirmed that, based on the provisions of the JRPA, the Divisional Court has exclusive jurisdiction over legal challenges made to the exercise of a statutory power, and that such matters are to proceed as applications for judicial review. See Alford at paras. 25-28. While the Superior Court of Justice has jurisdiction to grant declaratory relief with respect to alleged violations of the Charter, the Divisional Court is the court that has jurisdiction with respect to declarations that a particular action or enactment is ultra vires the authority of the enabling statute of the relevant body: see Di Cienzo v Attorney General of Ontario, 2017 ONSC 1351 at paras. 18-20, 28-29.

[126] In J.N. v. Durham Regional Police Service, 2012 ONCA 428 at para. 16, the Court of Appeal stated the following:

[16] In Ontario, the procedure for attacking decisions of public administrative bodies is by way of judicial review under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Under ss. 6 and 7 of that Act, in the absence of urgency (not a factor here), an application for judicial review is to be made to the Divisional Court. The application judge here was not sitting as a judge of the Divisional Court; he was hearing an application purporting to be brought under rule 14.05(3)(g.1) of the Rules of Civil Procedure – a proceeding by application where the relief claimed is for a remedy under the Canadian Charter of Rights and Freedoms. In our view, the rule 14.05 application procedure was not open to J.N. in these circumstances because the substance of her claim is for judicial review of the administrative decision of a public statutory body: see Bard v. Longevity Acrylics Inc.; Canada Post Corp. v. C.U.P.W., 70 O.R. (2d) 394 (H.C.J.), at pp. 397-398; Koumoudouros v. Municipality of Metropolitan Toronto (1982), 37 O.R. (2d) (H.C.J.), at p. 659. A court must have jurisdiction independent of rule 14.05 before it can consider the appropriate vehicle for bringing the matter forward, whether it be by action or application: see Canada Post Corp. at p. 397; Halpern v. Toronto (City) Clerk at para. 10.

See also Bard v. Longevity Acrylics Inc. at paras. 2-3.

[127] In light of the foregoing, I conclude that this Court does not have the jurisdiction to grant the relief sought in this action with respect to the Non-Charter Claims. The Divisional Court has exclusive jurisdiction in this regard.

[128] I have not come to this conclusion lightly given that this matter was originally commenced by way of application for judicial review and then transferred to this Court by Justice Corbett. However, Justice Corbett directed the Plaintiff to “serve and file a Statement of Claim asserting claims properly in the jurisdiction of the Superior Court of Justice”. [Emphasis added.] For the reasons outlined above, the Non-Charter Claims pleaded by the Plaintiff are not properly in the jurisdiction of the Superior Court of Justice. Thus, the Plaintiff did not comply with Justice Corbett’s direction.

[129] Further, I note that Justice Corbett’s decision appears to be premised on his conclusion (and presumably on the Plaintiff’s representations before him) that the Plaintiff’s core claim did not relate to the LSO’s jurisdiction to require and set the Licensing Examinations. However, it is clear from the allegations in the Statement of Claim and the Plaintiff’s response to this motion that the Plaintiff is in fact challenging the LSO’s jurisdiction to do what it did with respect to the Licensing Examinations.

[130] As he did before Justice Corbett, the Plaintiff has again misunderstood the procedural options available to him when he included in his Statement of Claim claims and allegations that can only be brought by way of application for judicial review.

[131] Since I have concluded that I do not have jurisdiction over the Non-Charter Claims, I am not prepared to find that they fail to disclose a reasonable cause of action. However, my finding on the issue of jurisdiction raises the question of a potential (re)transfer to the Divisional Court with respect to the Non-Charter Claims.

[132] Sections 7 and 8 of the JRPA provide as follows:

7 An application for an order in the nature of mandamus, prohibition or certiorari shall be deemed to be an application for judicial review and shall be made, treated and disposed of as if it were an application for judicial review.

8 Where an action for a declaration or injunction, or both, whether with or without a claim for other relief, is brought and the exercise, refusal to exercise or proposed or purported exercise of a statutory power is an issue in the action, a judge of the Superior Court of Justice may on the application of any party to the action, if he or she considers it appropriate, direct that the action be treated and disposed of summarily, in so far as it relates to the exercise, refusal to exercise or proposed or purported exercise of such power, as if it were an application for judicial review and may order that the hearing on such issue be transferred to the Divisional Court or may grant leave for it to be disposed of in accordance with subsection 6 (2).

[133] Section 110 of the Courts of Justice Act, R.S.O. 1990, c. C.43 is also relevant. It states:

Proceeding in wrong forum

110 (1) Where a proceeding or a step in a proceeding is brought or taken before the wrong court, judge or officer, it may be transferred or adjourned to the proper court, judge or officer.

Continuation of proceeding

(2) A proceeding that is transferred to another court under subsection (1) shall be titled in the court to which it is transferred and shall be continued as if it had been commenced in that court.

[134] See The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579 at paras. 44-48 on the issue of transfer.

[135] At the hearing of the motion, I raised the issue of this Court’s jurisdiction to hear claims that are in the nature of an application for judicial review. While the parties made short submissions on this issue and with respect to the decision of Justice Corbett, no detailed submissions were made regarding what should happen to these claims in the event this Court does not have jurisdiction over them. Consequently, as the Case Management Judge, I convene a case conference for the purpose of receiving the parties’ submissions in this regard and discussing the appropriate next steps with respect to these claims.

Conclusion

[136] The Defendants’ motion is granted in part.

[137] The Plaintiff’s claims as against the Non-LSO Defendants are struck without leave to amend.

[138] The following claims as against the LSO are struck without leave to amend:

a. under section 7 of the Charter; and

b. under both section 15 of the Charter and the Code with respect to alleged discrimination based on mental/cognitive disability or perceived mental/cognitive disability.

[139] The Plaintiff’s claims as against the LSO under both section 15 of the Charter and the Code with respect to alleged discrimination based on racial, ethnic and cultural background are struck with leave to amend. Leave to amend is only granted to the Plaintiff with respect to allegations of discrimination that relate to racial, ethnic and/or cultural characteristics that apply to the Plaintiff. The Amended Statement of Claim is to be filed within 45 days of the date of this decision.

[140] This Court does not have jurisdiction over the Non-Charter Claims. The parties shall contact my assistant to schedule a case conference with me for the purpose of discussing the appropriate next steps with respect to these claims.

[141] If costs cannot be agreed upon, the Defendants shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, within 14 days of the date of this decision. The Plaintiff shall deliver his responding submissions (with the same page limit) within 14 days of his receipt of the Defendants’ submissions. The submissions of all parties shall also be sent to my assistant by e-mail.

Vermette J. Date: May 6, 2022

[1] Section 12.18 of the Licensing Process Policies reads as follows: “A Candidate is deemed to have abandoned his or her Application if the Candidate has written either the Barrister Licensing Examination or the Solicitor Licensing Examination during the Candidate’s Licensing Term three times, or, if authorized by the Executive Director, Professional Development and Competence pursuant to section 12.17, four times, and failed to pass the Licensing Examination(s).”