Court File and Parties

Court of Appeal for Ontario Date: 20200526 Docket: C67445

Before: Feldman, Lauwers and Nordheimer JJ.A.

Between: Omar Shabbir Khan Plaintiff (Appellant)

And: Law Society of Ontario, Law Society Tribunal, David Wright, Raj Anand, Margaret Leighton, Barbara Laskin, Deborah McPhadden, Glenn Stuart, Leslie Maunder, Nina Iwanowich, Doctor Michael Colleton, Michael Colleton Medicine Professional Corporation, Legal Aid Ontario, Victor Matanovic, Hamilton Police Service and Kevin Dhinsa Defendants (Respondents)

Counsel: Omar Shabbir Khan in person Susan M. Sack for the respondents, Law Society Tribunal, David Wright, Raj Anand, Margaret Leighton and Barbara Laskin Gillian Kerr and Ljiljana Stanic for the respondents, Doctor Michael Colleton and Michael Colleton Medicine Professional Corporation Gideon Forrest and Mitch Stephenson for the respondents, Legal Aid Ontario and Victor Matanovic Colleen E. Robertshaw for the respondents, Hamilton Police Service and Kevin Dhinsa

Heard: in writing (on consent)

On appeal from the order of Justice Clayton Conlan of the Superior Court of Justice, dated August 23, 2019, with reasons reported at 2019 ONSC 4974.

Reasons for Decision

[1] On April 15, 2019, the appellant commenced an action in Milton against 16 defendants (the “Milton action”). On August 23, 2019, the motion judge dismissed the Milton action as against 11 of the 16 defendants under r. 2.1, on the basis that it was frivolous, vexatious or an abuse of process. The other five defendants had not sought a dismissal. For the following reasons, we would allow the appeal in part.

[2] The appellant was the subject of a complaint to the Law Society of Ontario (“LSO”) regarding alleged billing irregularities and alleged forged documents. In September 2018, upon making a finding that the appellant had committed professional misconduct, the LSO revoked his licence to practice.

[3] The 16 defendants in the Milton action include the LSO, the Law Society Tribunal, various individuals who were involved in the proceedings that resulted in the revocation of the appellant’s licence, Dr. Colleton, a psychiatrist who provided evidence to the Tribunal regarding the appellant’s mental health, Legal Aid Ontario (“LAO”) which was the complainant in the appellant’s disciplinary case, and the Hamilton Police Service, who the appellant says undertook an investigation of him at the behest of the LAO.

[4] The statement of claim in the Milton action is a lengthy document that advances a myriad of claims and seeks a wide variety of damages, all arising from the events surrounding the revocation of the appellant’s licence to practice.

[5] On that latter point, certain other facts are important. One is that the appellant has appealed the decision of the Law Society Tribunal by which the revocation of his licence was upheld. Another is that the appellant has an outstanding application for judicial review respecting a ruling made in the course of the Tribunal’s hearing. Yet another is that the appellant had earlier commenced another action in Hamilton (the “Hamilton action”) against LAO arising out of this same matter.

Analysis

[6] We begin our analysis by focussing on the proper application of r. 2.1. Its use is restricted to “the clearest of cases where the abusive nature of the proceeding is apparent on the face of the pleading”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 at para. 8.

[7] In particular, r. 2.1 is not intended to replace other Rules in the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 by which actions can be struck out, or other procedural irregularities dealt with, summarily: Simpson v. The Chartered Professional Accountants of Ontario, 2016 ONCA 806 at para. 43. These include motions to dismiss an action for failure to disclose a cause of action or because the action is an abuse of process. For example, Rule 21 provides a procedure for dealing with actions that are defective in a number of different respects.

[8] Further, r. 2.1 is intended to be a streamlined process for dealing with cases where the frivolous or abusive nature of the proceeding is clear on the face of the pleading. We suggest that if, after requesting submissions from the plaintiff as to why the action should not be dismissed under r. 2.1, the court feels it necessary to seek submissions from the defendants (who are seeking the dismissal), the fact that these additional submissions are needed ought to be a good indication that the situation is not one of those clearest of cases where the Rule should be invoked.

[9] The appellant submits that the motion judge erred in referring to pleadings from other proceedings, since evidence is not permitted on a r. 2.1 motion. We do not agree. It may be necessary to review reasons and pleadings from other proceedings in order to make a determination whether the instant case is abusive. The case here is a good example of that.

[10] There was argument advanced in this case as to the appropriate standard of review. We accept that a decision made under r. 2.1 is a discretionary decision and, as such, is entitled to deference. That said, discretionary decisions may be set aside where the court misdirects itself or comes to a decision that is so clearly wrong that it amounts to an injustice: Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 S.C.R. 125 at para. 27.

[11] We do not see any misdirection in the motion judge’s conclusion that the action against the Law Society Tribunal, and the individual defendants associated with it, is an abuse of process in light of the outstanding appeal that the appellant has from the Tribunal’s decision. To advance a claim arising out of a decision that is, itself, not final, because of an outstanding appeal, is on its face abusive.

[12] Similarly, we do not see any misdirection in the motion judge’s conclusion that the Milton action against LAO is abusive in light of the outstanding Hamilton action that the appellant has against LAO. The mere fact that the appellant has also sued an individual, not named in the Hamilton action, in the Milton action does not change that conclusion. A multiplicity of proceedings is often a hallmark of abusive litigation.

[13] However, we do find that the motion judge misdirected himself with respect to the claim against Dr. Colleton and his corporation. This is not an obviously abusive claim. The fact that Dr. Colleton relies on the legal principle of absolute privilege in defence of the claim is a good indicator that the issue is not a simple one where it would be appropriate to invoke r. 2.1. We note on this point, as well, that the motion judge chose to limit the appellant’s opportunity to reply to the submissions of the various respondents. This meant that the appellant did not have a full opportunity to make submissions as to whether Dr. Colleton’s claim of absolute privilege was correct or not in the particular circumstances of his case. This fact highlights the inappropriate application of r. 2.1. The issue ought to have been left to be determined on a proper motion under Rule 21 with all the procedural safeguards such a motion includes.

[14] We reach the same conclusion regarding the claim against the Hamilton Police Service and the associated individual defendant in the Milton action. The motion judge purported to determine various legal issues involving the claim against the police, including the parameters for claims of negligent investigation and for defamation respecting press statements issued by the police. These are not matters that should be determined on a r. 2.1 motion. Further, the fact that these claims in the Milton action may overlap claims in the Hamilton action does not preclude a separate claim being made against the police when they are not parties to the Hamilton action.

[15] We reiterate that judges should be cautious about allowing parties to have recourse to r. 2.1 except where it is plain and obvious on the face of the pleading that the action is frivolous, vexatious or an abuse of process. There are many other remedies provided for in the Rules of Civil Procedure by which parties can deal with cases that are not clear on the face of the pleading.

Conclusion

[16] The appeals are allowed with respect to the claims made against Dr. Michael Colleton, Michael Colleton Medicine Professional Corporation, Hamilton Police Service, and Kevin Dhinsa, without prejudice to any subsequent motion that those parties may choose to bring under an appropriate Rule to summarily deal with the claims advanced. The appeals are otherwise dismissed. We make no order as to costs.

"K. Feldman J.A."

"P. Lauwers J.A."

"I.V.B. Nordheimer J.A."