Court of Appeal for Ontario

Date: 2017-06-07 Docket: C62812

Judges: Lauwers, Hourigan and Benotto JJ.A.

Between

Paul Alexander Robson Plaintiff (Appellant)

and

The Law Society of Upper Canada, Zeynep Onen, Mark Pujolas, Lisa Freeman and Jan Parnega-Welch Defendants (Respondents)

Counsel

Richard Watson, for the appellant

Sean Dewart and Ian McKellar, for the respondents

Heard: May 18, 2017

On appeal from: the judgment of Justice Stephen E. Firestone of the Superior Court of Justice, dated September 14, 2016, with reasons reported at 2016 ONSC 5579.

Reasons for Decision

[1] The Law Society of Upper Canada brought disciplinary proceedings against the appellant in 2007 that finally resolved in his favor in October 2014. The appellant then brought this action claiming damages from the Law Society for negligent investigation, malicious prosecution, and mischief in public office.

[2] The appeal concerns the motion judge's decision to strike the claim for negligent investigation as disclosing no reasonable cause of action under rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The other claims will proceed in any event.

[3] The motion judge based his decision on s. 9 of the Law Society Act, R.S.O. 1990, c. L.8, which 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.

[4] The appellant argues that the plain terms of s. 9 expressly protect only Law Society employees and officials from negligence claims, but not the Law Society itself. Two impediments relating to stare decisis confront the appellant.

[5] One impediment is this court's decision in Conway v. The Law Society of Upper Canada, 2016 ONCA 72, 395 D.L.R (4th) 100. The court referred to s. 9 of the Law Society Act as "the statutory immunity" at para. 21, and added at para. 22:

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.

[6] This court in Conway and the motion judge cited this court's decision in Edwards v. Law Society of Upper Canada (2000), 48 O.R. (3d) 329 (C.A.), aff'd 2001 SCC 80, [2001] 3 S.C.R. 562, where Finlayson J.A. said at paras. 26, 30 and 40:

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.

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.

[I]t 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.... [T]he 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 law duty of care cannot stand alongside the Law Society's statutory mandate and hence cannot be given effect to.

[7] The second impediment is that the Supreme Court of Canada in Edwards noted its substantial agreement with Finlayson J.A, at para. 11, and went on to specifically note, at para. 16: "perhaps most indicative of the Legislature's intent, the Act provides statutory immunity in s. 9 of the Act". The court added, at para. 17, that s. 9 of the Law Society Act "precludes any inference of an intention to provide compensation in circumstances that fall outside the lawyers' professional indemnity insurance and the lawyers' fund for client compensation."

[8] The appellant submits the motion judge failed to consider his argument that Edwards was superseded by the decision of the Supreme Court of Canada in Hill v. Hamilton-Wentworth Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129. Hill is based on developments in the law of negligence initiated by the Supreme Court in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R 537. We observe that Edwards was a companion case to Cooper at the Supreme Court.

[9] In Hill, the Supreme Court of Canada held that the tort of negligent investigation exists in Canada. No statutory immunity was at issue in that case. There is no suggestion in Hill that the cause of action established in that case operates to extinguish statutory immunity. Nor is there any suggestion by the Supreme Court in Hill that Edwards was no longer good law.

[10] It is certainly arguable that the general law of negligence has moved on considerably since the days of Edwards, in light of the further development of the law under the principles of Cooper. Perhaps Canadian appellate courts have authority under the rubric of Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, and Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 to revisit binding Supreme Court of Canada decisions, particularly where that court has itself appeared to move on.

[11] However, we are not persuaded that doing so would be appropriate in the circumstances of this case. It is not clear that the policy considerations addressed in Hill would be applied equally in circumstances where a statutory immunity has been found to exist. The appellant's additional assertion that there have been changes to the investigative and adjudicative structure of the Law Society since Edwards was decided does not persuade us that a change in the circumstances or evidence that "fundamentally shifts the parameters of the debate" has been established: Bedford, at para. 42, Carter, at para. 44.

[12] Further, both Edwards and Conway were decisions of panels of three judges of this court. Only a panel of five judges of this court could overcome them, but the appellant did not seek the appointment of an enlarged panel. Consequently we have no jurisdiction to revisit the outcome in either Edwards or Conway.

[13] For these reasons, the appeal is dismissed with costs fixed in the amount of $5,000, inclusive of disbursements and taxes.

P. Lauwers J.A.

C.W. Hourigan J.A.

M.L. Benotto J.A.