CITATION: Yan v. Law Society of Ontario, 2023 ONSC 5634

DIVISIONAL COURT FILE NO.: DC 520/23

DATE: 20231006

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: NATHALIE XIAN XI YAN, Appellant

AND:

LAW SOCIETY OF ONTARIO, Respondent

BEFORE: Nishikawa J.

COUNSEL: Nathalie Xian Xi Yan, in person

No one appearing for the Respondent

HEARD at Toronto: October 6, 2023 (in writing)

ENDORSEMENT

Overview

[1] On September 3, 2023, Nathalie Xian Yi Yan, commenced an appeal of a decision of the Law Society of Ontario (“LSO”) dated August 15, 2023 to take no further action in response to Ms. Yan’s complaint against Rebecca Durcan, a lawyer who was counsel to the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (the “College”).

[2] The LSO decided not to take any further action on the complaint because the issues raised by Ms. Yan had been fully considered previously and because certain aspects of the complaint, such as Ms. Yan’s desire to have her licence restored, were outside the LSO’s jurisdiction.

[3] On September 25, 2023, Ms. Yan received notice that this Court was considering dismissing her appeal under Rule 2.1.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the basis that it appears to be frivolous, vexatious or an abuse of process. Ms. Yan was given an opportunity to make written submissions in response to that notice.

[4] Having reviewed the decision of the LSO, Ms. Yan’s Notice of Appeal, and her response to this Court’s notice, I am satisfied that this application should be dismissed pursuant to Rule 2.1.01 of the Rules of Civil Procedure.

Background

[5] The history of this matter is set out in the decision of Davies J. in Yan v. Durcan, 2022 ONSC 2426 (Div. Ct.).

[6] Briefly stated, Ms. Yan is a member of the College. The College started an investigation into Ms. Yan’s practice in May 2016 and a discipline hearing was convened in February 2017. Ms. Durcan was counsel to the College during the investigation and at the hearing.

[7] While the College proceedings were ongoing, a trespass notice was issued prohibiting Ms. Yan from attending the College premises. In March 2019, Ms. Yan went to the College in violation of the trespass notice. Ms. Durcan asked Ms. Yan to leave but she refused. The police were called and Ms. Yan was charged under the Provincial Offences Act, R.S.O. 1990, c. P.33. The charge against Ms. Yan was withdrawn on January 23, 2020 because neither Ms. Durcan nor the arresting officer attended court for Ms. Yan’s Provincial Offences Act trial.

[8] After the charge was withdrawn, Ms. Yan filed a complaint with the LSO alleging Ms. Durcan engaged in professional misconduct by failing to attend court for her trial. In July 2020, the LSO decided there was insufficient evidence of professional misconduct to support further action against Ms. Durcan and Ms. Yan’s complaint was closed. Ms. Yan submitted a request have her complaint reviewed by the LSO’s Complaints Resolution Commissioner. On February 7, 2022, the Commissioner released her decision, finding that the LSO’s consideration of Ms. Yan’s complaint and its decision to close the file were reasonable.

[9] Ms. Yan’s appeal of the Commissioner’s decision was dismissed by this court on the basis that pursuant to s. 49.19 of the Law Society Act, R.S.O. 1990, c. L.8, there is no appeal of a Commissioner’s decision: Yan v. Durcan, 2022 ONSC 2426. Ms. Yan’s motion for an extension of time to seek leave to appeal from that decision was dismissed by the Court of Appeal on September 29, 2022.

[10] Ms. Yan then brought a motion for an extension of time to bring an application for judicial review of the Commissioner’s decision. The motion was dismissed by Schabas J. because there were no apparent grounds for relief, as required under s. 5(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1: Yan v. Law Society of Ontario, 2023 ONSC 1290 (Div. Ct.).

[11] Ms. Yan’s civil actions against the lawyers involved in the disciplinary proceedings were struck under Rule 21.01(1)(b) on the basis that they disclosed no cause of action. Those decisions were upheld by the Court of Appeal: Yan v. Hutchinson, 2023 ONCA 97.

[12] As noted above, on August 3, 2023, Ms. Yan made a subsequent complaint to the LSO regarding Ms. Durcan. She appeals the LSO’s decision to take no further action on the complaint.

Analysis

[13] This Court may stay or dismiss an appeal if it appears to be frivolous, vexatious, or an abuse of process: Rule 2.1.01, Rules of Civil Procedure.

[14] Rule 2.1.01 can only be used in the “clearest of cases” where the frivolous or abusive nature of the proceedings is apparent on the face of the pleadings: Visic v. Elia Associates Professional Corporation, 2020 ONCA 690, at para. 8; Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8; Khan v. Law Society of Ontario, 2020 ONCA 320at para. 6. Rule 2.1.01 should not be used to weed out cases that might be frivolous, vexatious or an abuse of process or where it is a close call: Visic at para. 8.

[15] I am satisfied that Ms. Yan’s application should be dismissed pursuant to Rule 2.1.01 of the Rules of Civil Procedure. This is a clear case because the decision at issue is not subject to a statutory right of appeal. As a result, this court does not have jurisdiction to hear the appeal.

[16] In any event, the subject matter of the appeal has previously been addressed by the courts. In her submissions in response to the Rule 2.1.01 notice, Ms. Yan states that the current matter is “totally a different matter happened in different time and in different issues, different cause of action.” In essence, however, Ms. Yan continues to challenge the proceeding before the College that resulted in the suspension of her licence and the conduct of the College’s counsel in that proceeding. As demonstrated by the procedural history, that matter has been repeatedly addressed by the courts.

Conclusion

[17] Accordingly, the appeal is dismissed as frivolous.

[18] Given that the LSO was not required to make submissions in response to the Court’s Rule 2.1.01 notice, no costs are ordered.

"Nishikawa J."

Date: October 6, 2023