Court File and Parties

COURT FILE NO.: CV-14-505528

DATE: 20140808

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: NAGY RIAD, Applicant

AND:

ONTARIO COLLEGE OF PHARMACISTS, DEANNA WILLIAMS, MARSHALL MOLESCHI, MARYAN GEMUS, GIOVANNA ADDESSI, KATRYNA SPADAFORE, Respondents

BEFORE: Stinson J.

COUNSEL: Nagy Riad, applicant, acting in person

Karen Jones, for the respondents

No one appearing for the Attorney General of Ontario

HEARD: July 25, 2014

ENDORSEMENT

[1] This endorsement concerns an application brought by Nagy Riad pursuant to s. 140(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “Act”) for leave to commence a civil proceeding against the respondents. The Attorney General of Ontario was served as a respondent under s. 140(4)(d) of the Act, but took no part in the proceedings.

[2] On February 7, 2012, in an application commenced by Mr. Riad’s wife, Marlien Aziz (Court File No. CV-11-105944 (Newmarket) – Aziz v. Riad) Salmers J. granted an order under s. 140(1) of the Act directing that Mr. Riad could not commence or continue any further proceedings in any court except with leave of a judge of the Superior Court of Justice. Mr. Riad appealed the order of Salmers J. to the Court of Appeal. While his appeal was pending, Mr. Riad unsuccessfully sought to set aside the order of Salmers J. by moving before another Superior Court judge to rescind it. His appeal to the Court of Appeal was also unsuccessful: it was dismissed by that court on October 3, 2012. Mr. Riad now wishes to sue the named respondents, hence this application for leave.

[3] The test for granting leave to commence proceedings where a s. 140(1) order has been made is spelled out in s. 140(4)(a)of the Act, as follows:

leave shall be granted only if the court is satisfied that the proceeding sought to be instituted or continued is not an abuse of process and that there are reasonable grounds for the proceeding

[4] To place Mr. Riad’s application in context, it is necessary to review some history. The respondent the Ontario College of Pharmacists (the “OCP”) is the regulatory body for pharmacists and pharmacies in Ontario. The remaining individual respondents are present or former employees or registrars of the OCP. The mandate of OCP is to regulate pharmacists and the practice of pharmacy in Ontario.

[5] In 2001–2002, Mr. Riad was a member of OCP. He was the subject of an OCP Discipline Committee hearing. He entered a guilty plea and agreed to a joint submission on penalty. In 2004 and 2005, the OCP issued notices of hearing containing new allegations of professional misconduct regarding Mr. Riad. Mr. Riad was represented by a lawyer. The Discipline Committee hearing took place in September 2006 and the Committee found that Mr. Riad had committed several acts of professional misconduct. It revoked his certificate of registration. The Discipline Committee’s decision and reasons were provided to Mr. Riad and his counsel and in December 2006 Mr. Riad served a Notice of Appeal. The appeal was never pursued.

[6] In January 2010, Mr. Riad contacted the OCP and indicated he wished to have his certificate of registration reinstated. A reinstatement hearing was scheduled for March 2010. It was adjourned several times, due to Mr. Riad’s conduct. The hearing finally proceeded in May 2012 and, by decision released June 18, 2012, the Discipline Committee dismissed his application for reinstatement.

[7] On April 15, 2014, Mr. Riad issued a Notice of Action at the office of the Superior Court in Toronto (Court File No. CV-14-502307) naming the OCP as the sole defendant. He did not seek leave to do so as required by the order of Salmers J. The Notice of Action consisted of the court form and the title of proceedings only; the remainder of the document was blank. It contained no statement of the nature of the claim (as required by rule 14.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194) or any other information identifying what the action was about. On April 16, 2014, Mr. Riad attended at the offices of the OCP and purported to serve his Notice of Action, in violation of rule 14.03(4).

[8] On April 16, 2014, Karen Jones of Paliare Roland (a law firm), counsel to the OCP, sent Mr. Riad an email stating that there was no content in the Notice of Action and that Mr. Riad either had to withdraw it or the OCP would take steps to have it struck out. Mr. Riad replied by email, indicating that he would not deal with the Paliare law firm. He did not take any steps to correct the Notice of Action.

[9] On May 16, 2014, Firestone J. heard an application commenced by Mr. Riad (in Court File No, CV-14-504034) to obtain leave to continue an action against the OCP. The Notice of Application named Marlien Aziz, Mr. Riad’s wife, as the respondent. It had not been served on the OCP, nor had Mr. Riad served and filed an application record. Firestone J. directed Mr. Riad to do so. On May 20, 2014, Mr. Riad delivered to the OCP an application record in Court File No. CV-14-504034, still naming the respondent as Marlien Aziz. In that application, Mr. Riad included a statement of the nature of the proceeding he was seeking leave to commence against the OCP.

[10] The application in Court File No. CV-14-504034 came before me on May 26, 2014, but no one attended on behalf of OCP due to the fact that the court docket did not include any matter in which OCP was named as a party. I explained to Mr. Riad that the application he had commenced in Court File No. CV-14-504034 was of no effect since it failed to name the party against whom he wished to claim, the OCP, and that if he wished to sue the OCP he had to commence a fresh application for leave under s. 140, serve the intended defendants and provide them an opportunity to appear and respond accordingly. On June 3, 2014, in Court File No. CV-14-505528, Mr. Riad commenced the present application, naming as respondents all of the respondents named in the current title of proceedings. It is that Notice of Application which resulted in the hearing before me on July 25, 2014.

[11] Mr. Riad has consistently refused to communicate with OCP counsel. Recently, he threatened Ms. Jones with legal action if she provided him with court materials. Mr. Riad has asserted his refusal to deal with counsel is based on a 2011 court order in which he was directed to only deal with the OCP. He has never provided a copy of such order, however.

[12] According to the evidence filed in response to this application, Mr. Riad has been harassing and threatening the OCP since 2006, when his certificate of registration was revoked. He was provided with trespass to property notices by the OCP in 2006 and 2013. The OCP contacted the Toronto Police Services in 2006 and 2010 regarding Mr. Riad’s threatening and harassing attendances, correspondence and telephone calls. Despite the issuance of trespass to property notices, Mr. Riad persisted in attending at the OCP personally to deliver documents. Mr. Riad has falsely told both Ms. Jones and the OCP that they have been found in contempt of court for failing to attend at court on May 26, 2014.

[13] Against the foregoing backdrop, I am called upon to decide whether I am satisfied that the proceeding that Mr. Riad now seeks to institute or continue against the OCP and its employees is not an abuse of process. In my view, the material filed by Mr. Riad fails to do so. Rather, the evidence supports the conclusion that the proposed proceeding is yet another attempt by Mr. Riad to engage the OCP in unwarranted litigation.

[14] Mr. Riad’s basic complaint is that the OCP improperly revoked his certificate of registration in 2006 and that it subsequently improperly refused his application for reinstatement in 2012. Both decisions of the OCP Discipline Committee are final. Mr. Riad had rights of appeal but did not pursue them. Any civil litigation by which Mr. Riad seeks to attack those decisions is an impermissible collateral attack. His attempt to relitigate those final decisions is, by itself, an abuse of process. See Wolf v. Ontario (Attorney General), 2012 ONSC 72, at paras 54 and 55.

[15] Moreover, Mr. Riad’s conduct in this proceeding to date demonstrates his refusal to comply with either the spirit or the letter of the Rules of Civil Procedure. Among other things, he has commenced an action against the OCP without leave of a Superior Court judge (CV-14-502307); he has provided the OCP and the other defendants with incomplete and improper materials; he has served a Notice of Action in breach of the Rules; he has issued irregular documents; he has refused to communicate with the OCP’s lawyer; he has filed documents with the court that are different than those he delivered to the OCP; he has failed to serve all proposed defendants; and he has provided verifiably false information in his affidavits and his proposed statement of claim. Mr. Riad has not shown any indication that he is prepared to abide by the court’s process and Rules, yet he seeks to invoke the jurisdiction of the court against the respondents. On the material before me, he has failed to persuade me that to allow him to do so would not be an abuse of process.

[16] The second requirement that an applicant must meet to obtain an order under s. 140(3) of the Act is to satisfy the court that there are reasonable grounds for the proposed proceeding. Once again, I find that Mr. Riad has failed to meet the test. As a party who is the subject of an order under s. 140(1), Mr. Riad has the onus of satisfying the court that leave should be granted, by establishing that there are reasonable grounds for the proceeding. In none of the material filed by him does Mr. Riad offer any credible evidence to support the conclusion that there is some proper basis or reasonable grounds for the claims he seeks to advance against any of the proposed defendants. Mere allegations without supporting evidence are insufficient: see Deep v. Canada (Revenue Agency), 2011 ONSC 5660, at paras. 7 and 8.

[17] Additionally, all of the claims in Mr. Riad’s proposed action are out of time. Pursuant to s. 4 of the Limitations Act, 2002, S.O. 2002 c. 24, Sched. B, a litigant must commence a proceeding before the second anniversary of the day on which the claim was discovered. Mr. Riad appears to be suing about (a) events that took place between 1983 and 1986 in relation to OCP’s actions in issuing his original certificate of registration; (b) the April 2002 Discipline Committee decision; (c) the September 2006 Discipline Committee decision (for which he served a notice of appeal in December 2006); (d) the June 2012 Discipline Committee decision; and (e) other events that took place no later than May 2012. His purported Notice of Action issued April 15, 2014 is a nullity, because it fails to recite any basis for a claim, and it was issued in violation of the order of Salmers J. Simply put, it is now too late for Mr. Riad to initiate proceedings that concern any of these events since they all occurred more than two years ago. In any event, any complaint regarding the June 2012 decision of the Discipline Committee refusing to reinstate his licence would, once again, be an impermissible collateral attack on a final decision.

[18] For the foregoing reasons, I conclude that Mr. Riad has failed to meet the test set out in s. 140(4)(a) of the Act and that leave under s. 140(3) should be refused. I therefore dismiss Mr. Riad’s application in Court File No. CV-14-505528. As well, the action he commenced by Notice of Action in Court File No. CV-14-502307 should be dismissed. Finally, so that the matter is beyond doubt, his application in Court File No. CV-14-504034, naming Marlien Aziz as a respondent, is also dismissed.

[19] In relation to costs, as the unsuccessful party, Mr. Riad is liable to pay costs to the successful parties, the respondents. They seek only a nominal cost award, in the amount of $750. In my view, that amount is more than reasonable, particularly in light of the volume of material that was filed in response to the application. I therefore fix costs payable by Mr. Riad to the respondents in the amount of $750 and order him to pay that sum within 30 days.

Stinson J.

Date: August 8, 2014