Court of Appeal for Ontario

Spasiw v. Law Society of Ontario et al.

Date: 2024-12-10 Docket: COA-24-CV-0380 & M55580

Before: Nordheimer, Copeland and Madsen JJ.A.

Between: Andrew Spasiw, Applicant (Appellant)

And: The Law Society of Ontario, McMillan LLP, Benjamin Bathgate and David Milosevic, Respondents (Respondent)

Counsel: Andrew Spasiw, acting in person Ben Kates and Natasha Novac, for the respondent, Law Society of Ontario Jordan Goldblatt and Rachel Allen, for the respondents, McMillan LLP and Benjamin Bathgate Jody Brown, for the respondent, David Milosevic

Heard: December 4, 2024

On appeal from: the order of Justice Loretta P. Merritt of the Superior Court of Justice, dated March 11, 2024, with reasons reported at 2024 ONSC 1486.

On review of: the order of Justice Sally A. Gomery of the Court of Appeal for Ontario, dated November 19, 2024.

Reasons for Decision

[1] The appellant seeks to set aside the order of the motion judge that struck out his Notice of Application and refused leave to amend. At the same time, the respondents, McMillan LLP and Benjamin Bathgate, ask for the dismissal of a motion brought by the appellant seeking a review of an order made by a single judge of this court, as described below.

[2] The appellant sought a declaration that the respondents had violated his rights under the Canadian Charter of Rights and Freedoms. This proceeding arose out of a prior action for an oppression claim made by the appellant directed at Quintet Ventures Inc., which had acquired the appellant’s shares in Quality Green Inc. by exchanging them for shares in Quintet. The appellant claimed that Quintet had then, in some fashion, rendered his shares in Quintet valueless.

[3] The respondents, McMillan LLP and Benjamin Bathgate, acted for a party adverse in interest to the appellant in that litigation. The respondent, Milosevic, acted for the appellant, for a few months, in the litigation. The respondent, Law Society of Ontario, became involved in this matter after the appellant complained to it about the conduct of Mr. Bathgate.

[4] In his Notice of Application, the appellant sought a declaration that the respondents collectively had offended the principles of fundamental justice and violated the appellant’s fundamental freedoms and rights as prescribed in ss. 2(b), 7 and 15(1) of the Charter and sought a remedy under s. 24(1).

[5] The motion judge found that it was plain and obvious that the appellant’s claim for Charter relief could not succeed. She found that the claim represented a collateral attack on a decision made by the Law Society of Ontario respecting a complaint that the appellant had made arising out of the same facts. In addition, she found that the Charter did not apply to the individual respondents, McMillan LLP, Milosevic, and Bathgate.

[6] The appellant submits that the motion judge made errors in the interpretation and application of the Charter. He also submits that the summary determination of his application constituted an abuse of process.

[7] The appellant has failed to substantiate either of these submissions. He has not demonstrated any error in the motion judge’s determination of the issues. In detailed reasons, she found, correctly in our view, that the facts upon which the appellant relied for his claim did not support any breach of his Charter rights. The appellant’s submission that the respondents “are inherently bound to adhere” to the Charter in their conduct does not accord with the express wording of the Charter nor with the many decisions of the Supreme Court of Canada regarding what actions are properly subject to Charter scrutiny.

[8] Contrary to the appellant’s submissions, the summary determination that a proceeding does not disclose a reasonable cause of action is not an abuse of process. To the contrary, it is a determination that the underlying proceeding lacks a tenable basis for a claim and, thus, could itself constitute an abuse of process.

[9] We also agree with the motion judge’s conclusion to deny the appellant leave to amend his Notice of Application. She found that the amendments proposed by the appellant similarly failed to demonstrate any cause of action that would lie against any of the respondents on the facts as pleaded. We would add, on this point, that any claim that the appellant is attempting to set up does not appear to be properly brought by way of a Notice of Application in any event.

[10] Finally, prior to the hearing of this appeal, the appellant brought a motion challenging the joint representation by counsel for the respondents, McMillan LLP and Benjamin Bathgate. That motion was heard and dismissed by Gomery J.A. who found that the appellant did not have standing to bring the motion and that, in any event, his submissions in support of the motion lacked any merit.

[11] The appellant then brought a motion seeking a review of that decision by a panel of this court. The respondents, McMillan LLP and Benjamin Bathgate, responded by asking for a dismissal of that motion pursuant to r. 2.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the grounds that the motion for review appeared on its face to be frivolous, vexatious or an abuse of process. That r. 2.1 request was referred to this panel to be determined at the same time as Mr. Spasiw’s appeal.

[12] We agree with the respondents, McMillan LLP and Benjamin Bathgate, that the appellant’s motion for a review of the order of Gomery J.A. is both frivolous and an abuse of process. Her conclusion that the appellant did not have standing to challenge the joint representation of those respondents is unassailable as is her conclusion that there was no merit to the challenge in any event.

[13] The appeal and the motion for review are both dismissed. The respondents are entitled to costs of the appeal which we fix in the amount of $5,000, inclusive of disbursements and HST, for the Law Society of Ontario, in the amount of $2,500, inclusive of disbursements and HST, for the respondents, McMillan LLP and Benjamin Bathgate and in the amount of $2,500, inclusive of disbursements and HST, for the respondent, David Milosevic.

“I.V.B. Nordheimer J.A.”

“J. Copeland J.A.”

“L. Madsen J.A.”