CITATION: Husain v. Craig et al., 2015 ONSC 1754 COURT FILE NO.: CV-15-521951 DATE: 20150318

SUPERIOR COURT OF JUSTICE - ONTARIO

B E T W E E N:

Raza Husain

Plaintiff

-AND-

Alison Craig and Law Firm of Lockyer, Campbell, Posner

Defendants

BEFORE: F.L. Myers J.

READ: March 18, 2015

endorsement

[1] This motion was referred to me by the registrar’s office pursuant to rule 2.1.01(7) following receipt of a written request of counsel for the defendant lawyer Alison Craig and the defendant law firm Lockyer, Campbell, Posner under subrule 2.1.01(6).

The Plaintiff’s Criminal Convictions

[2] On September 12, 2011 “[t]he plaintiff pleaded guilty, with the assistance of counsel in a negotiated plea bargain, to five counts, including one count of sexual assault against an underage girl and one count of attempting to procure a second under-age girl to become a prostitute”. R. v. Husain, 2012 ONCA 697 at para. 1. He was sentenced to five years and two months in prison and made subject to an order under s.161 of the Criminal Code prohibiting him from attending near certain places where children may be present.

[3] The plaintiff appealed and was represented by different counsel at the hearing of the appeal on October 12, 2012. On the appeal “[h]e did not challenge the agreed statement of facts or seek to impugn the competence of his counsel at trial. Rather, he argue[d] that the agreed facts do not support the convictions.” Husain, supra, at para. 3. The appeal was dismissed by reasons dated October 16, 2012 on the basis that since he was represented by counsel at trial and did not claim that he had received ineffective assistance, there is a presumption that the plea was valid.

[4] The Court of Appeal noted that on the two counts described above, when the plaintiff pled guilty he said “if my actions constitute the elements of that offence”. “Thereafter, the trial judge specifically inquired whether the appellant understood that a plea is an admission of the essential elements of the offence and understood the nature and consequences of pleading guilty”. Husain, supra, at para. 4. He said he did and only then did the trial judge make findings of guilt on the two counts.

[5] The Court of Appeal dismissed the appeal against the two convictions on the following basis: “Having made an informed plea, the appellant seeks to take advantage of imprecision in the wording of the agreed facts. He has not rebutted the presumption that his plea was valid”. Husain, supra, at para. 12.

The Plaintiff’s Civil Claim

[6] The plaintiff has now sued the lawyer who acted for him at his criminal trial by statement of claim issued February 12, 2015. There is a significant limitation period issue in the claim as it was started well after two years had run from the appeal let alone the trial. Whether the plaintiff may be able to meet the standard of proof in s.5(2) of the Limitations Act, 2002, S.O. 2002, c 24, Sch. B. is not an issue for rule 2.1.

[7] The plaintiff claims damages against his former counsel and her firm essentially for negligence. The statement of claim is not a concise statement of the material facts as required by r.25.06(1) of the Rules of Civil Procedure. However, it describes a clear story under which the plaintiff claims that his lawyer ignored his pleas of innocence including those set out in writing, coerced him to plead guilty to things that he did not do, violated the sanctity of solicitor client privilege, and failed to protect him from a severe sentence including a s.161 order. He says that when he appealed, he did claim ineffective assistance of counsel as a ground of appeal. In response, the defendant, his former lawyer, gave his file to the Crown and delivered a “shocking” affidavit that was “pure lies, just to defend her reputation”. He claims that his lawyer on the appeal advised him to drop the ineffective assistance of counsel issue given the “derogatory, hostile reply” that his former lawyer had delivered.

[8] The statement of claim concludes as follows:

The court ruled that my guilty plea was valid because of one question that the trial judge asked me. “Is the statement of facts substantially correct”? I said “yes”. And the appeal court said, I did not raise an ineffective counsel issue and I should have.

CONCLUSION

Considering all of the above facts, it is clear, that the actions of lawyer Alison Craig, in my case, were unreasonable, incompetent, negligent, careless, not researched, fraudulent and unlawful.

[9] In this final quote, the nub of the issue is laid bare. The plaintiff pleaded guilty and admitted the facts underlying the offences. There is a clear issue as to whether it is an abuse of process for the plaintiff to now advance a different set of facts and essentially bring a collateral attack against his convictions.

Analysis

[10] However, what if the plaintiff’s allegations are true? This is essentially a pleadings motion in which the court is considering if the claim is, on its face, frivolous, vexatious, or an abuse of process. In doing so, the court considers, in part, whether it is obvious that the claim cannot succeed. Currie v. Halton Regional Police Services Board, 2003 7815 (ON CA). That test is predicated on the assumption that the facts as pleaded are true. The plaintiff claims that he was wrongly convicted based on outrageous misconduct by counsel. There is nothing on the face of the claim that indicates that this plaintiff is a vexatious litigant or is engaged in querulous litigation behavior as described in Gao v. Ontario WSIB, 2014 ONSC 6497 at paras. 14 and 15.

Analysis

[11] It seems to me that the case may be barred by prescription. Moreover, while questioning a criminal conviction is a serious matter, there are exceptions to the doctrine of abuse of process in appropriate cases. See: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at paras. 53 and 54. I cannot say that wrongful convictions never occur. Nor would I say that a civil action can never be a platform to try to bring a wrongful conviction to light. The statement of claim readily makes out cognizable causes of action against the defendants. It may not survive a motion to strike under rr.21 or 25.11 or a motion under r.20 for summary judgment on evidence of both sides. But, assuming the facts as pleaded to be true, there are issues under the law of abuse of process and the Limitations Act, 2002. One or both issues may need evidence to resolve. As such, it cannot be said that it is plain and obvious on the face of the pleading that the claim is frivolous, vexatious, or an abuse of process or that this is a case for the application of the attenuated process of rule 2.1.

[12] I see no prejudice that cannot be compensated in costs by allowing the plaintiff to have his opportunity to respond to a normal motion on notice if the defendants choose to bring one. This is not the Catch-22 that I discussed in Raji v. Borden Ladner Gervais LLP, 2015 ONSC 801, at paras 8 and 9.

[13] Accordingly, I decline to make a direction to the registrar under rule 2.1.01. The action may proceed in the ordinary course.

________________________________ F.L. Myers J.

Date: March 18, 2015