Court File and Parties

COURT FILE NO.: CV-15-535850 DATE: 20160914 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

PAUL ALEXANDER ROBSON Plaintiff (Responding Party) – and – THE LAW SOCIETY OF UPPER CANADA, ZEYNEP ONEN, MARK PUJOLAS, LISA FREEMAN and JAN PARNEGA-WELCH Defendants (Moving Parties)

Counsel: Richard Watson, for the Plaintiff (Responding Party) Paul Robson in Person Sean Dewart and Ian McKellar, for the Defendants (Moving Parties)

HEARD: June 15, 2016

REASONS FOR DECISION

firestone j.

[1] The moving party defendants bring this motion for an order striking out, without leave to amend, the plaintiff’s amended Statement of Claim (“amended claim”) and dismissing the action against them. In their Notice of Motion, the defendants rely on rules 21.01(1)(a), 21.01(3)(d), and 25.06(8) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) and section 9 of the Law Society Act, R.S.O. 1990, c. L.8.

[2] These proceedings have their genesis in disciplinary proceedings taken by the defendant the Law Society of Upper Canada (“Law Society”) against the plaintiff Paul Alexander Robson (“Robson”) between 2007 and 2014. Initially, the Law Society revoked Robson’s license to practice law, but that revocation order was set aside in October 2014.

[3] In his amended claim, Robson asserts causes of action against the defendants grounded in negligent investigation, malicious prosecution, and misfeasance in (abuse of) public office. He seeks damages for each of these, as well as punitive and/or aggravated damages.

[4] The grounds for the moving parties’ motion, and issues for determination, are set forth in their Notice of Motion and at para. 11 of their factum. The issues to be determined are: (1) whether Robson’s allegations of negligent investigation disclose a reasonable cause of action; (2) whether the action framed in malice and misfeasance is frivolous and vexatious; and, (3) whether the action is an abuse of the process of the court on the basis that Robson seeks to re-litigate issues that have been determined in previous proceedings.

Factual Background

[5] The relevant factual background is set forth in the amended claim, Statement of Defence (“defence”), and the Law Society proceedings which are incorporated by reference into the statements of claim and defence.

[6] Robson is a Canadian resident, residing and practicing law in Toronto.

[7] The Law Society regulates and governs lawyers and paralegals in the Province of Ontario.

[8] The defendants Zeynep Onen (“Onen”) and Mark Pujolas (“Pujolas) were formerly employed by the Law Society as, respectively, Director of Professional Regulation and an investigator. The defendants Lisa Freeman (“Freeman”) and Jan Parnega-Welch (“Parnega-Welch”) are employed by the Law Society as discipline counsel.

[9] In February 2002, the Law Society started investigating Robson following allegations made by a complainant. From February 2002 to May 2015, on behalf of the Law Society, Onen, Pujolas, Freeman, and Parnega-Welch investigated or acted as counsel in disciplinary proceedings against Robson.

[10] The disciplinary proceedings began in February 2007. From the outset, Robson denied the allegations of the complainant and asserted his innocence. The Law Society hearing panel found that Robson was guilty of professional misconduct and, in April 2014, revoked his license to practice law.

[11] Robson appealed the hearing panel’s decision to the Law Society Tribunal Appeal Division (“Appeal Division”). Robson was successful on appeal and, in October 2014, the Appeal Division set aside the revocation order. The Appeal Division declined to award costs.

[12] In its reasons released May 22, 2015, the Appeal Division stated:

[W]e do not conclude that the Law Society’s conduct was without reasonable justification, patently unreasonable, malicious, taken in bad faith, or for a collateral purpose. Our ultimate rejection of the Law Society’s position does not mean that the proceedings against Mr. Robson were “unwarranted” in law.

Procedural History

[13] The initial Statement of Claim (“claim”) was issued on September 8, 2015. The defendants filed their Notice of Intent to Defend on September 24, 2015 and delivered a demand for particulars on or about October 8, 2015. Robson’s response was delivered by email on October 8, 2015. Robson subsequently requested that the defendants file their defence by October 13, 2015. At the plaintiff’s request, the defence was filed on October 13, 2015. Robson filed his reply on October 20, 2015.

[14] On December 11, 2015, the defendants’ motion to strike came before me. At that time, the motion was adjourned at Robson’s request so that his newly-retained counsel could file responding material. A timetable was set by me and subsequently amended. Robson filed his responding material on April 7, 2016. A new return date was scheduled.

[15] The defendants’ Notice of Motion was based on the allegations contained in the initial claim issued September 8, 2015. On May 30, 2016, notwithstanding that a defence had been delivered and pleadings were closed, the Local Registrar, without the consent of the defendants or leave of the court, amended the claim to add allegations of misfeasance in (abuse of) public office.

[16] Following the amendment of the claim, and prior to the return date of this motion, Robson delivered a motion record seeking an order permitting the plaintiff to amend his claim in the form attached as Schedule ‘A’ to his notice of motion (a copy of the amended claim was marked as schedule “A”) and an order scheduling the hearing of this motion at the same time as the hearing of the defendant’s motion to strike the Plaintiff’s Claim.

Preliminary Issue – Priority of This Rule 21 Motion

[17] In Preiano v. Cirillo, 2015 ONSC 7181, 15 E.T.R. (4th) 38, Price J. dealt with the priority of a rule 21 motion and a motion to amend a claim. At para. 10, the court states:

With regard to the plaintiff’s motion for leave to amend the Statement of Claim, Dawson J. held in Raghaven v. Bell Canada, 2011 ONSC 7486, W.D.F.L. 4669, at para. 26, aff’d 2012 ONCA 370, W.D.F.L. 2799, leave to appeal refused that where a motion to strike (or, in the present case, for a determination of a question of law under Rule 21) was served before a cross-motion to counsel, the motion under Rule 21 should proceed first on the basis that a moving party’s rights are not normally open to being prejudiced by anything after service of the notice of motion.

[18] The practice to be followed in a factual situation such as this was addressed by Myers J. in the earlier decision of Riopelle v. Trucash Rewards Inc., 2014 ONSC 3414, 2014 CarswellOnt 7935, at para. 5:

The Master relied on the La Salle decision that confirms a longstanding practice requiring leave or consent to amend a pleading in face of a motion to strike, despite the wording of rule 26. The alternative would be to let amendments be made as of right and then require multiple motions to strike that overlap with pre-existing motions to strike the original claim.

[19] At the hearing of this motion, as a preliminary matter, Robson advised that he brought his motion to amend out of an abundance of caution because he anticipated that the defendants, or the court on its own motion, would move to strike the Registrar’s order.

[20] In addressing this preliminary issue, counsel for the defendants advised that his clients were waiving their objection and any challenge to the amended statement of claim. He advised that, in order to avoid multiple motions and multiple attendances, for the purpose of this motion, it is the amended claim which is to be considered. As a result, I find that Robson’s motion is not necessary.

The Applicable Rules

(a) Rule 21.01(1)(b)

[21] The issue to be determined under rule 21.01(1)(b) is whether the allegations of negligent investigation pled in the amended claim disclose a reasonable cause of action.

[22] The Ontario Court of Appeal in Paton Estate v. Ontario Lottery and Gaming Corporation, 2016 ONCA 458, 2016 CarswellOnt 9109, at para. 11, highlights the Supreme Court’s statement in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, 3 S.C.R. 45, at paras. 19 and 21, “that the purpose of a motion to strike is to eliminate hopeless claims” and that it “is a tool that must be used with care.” In Paton, at para. 12, the Court of Appeal goes on to state:

It is not determinative, on motion to strike, that the law has not yet recognized a particular claim. Rather, the court must ask whether it is plain and obvious that the claim has no reasonable prospect of success. The court must take the facts pleaded in the statement of claim as true, unless they are patently ridiculous or manifestly incapable of being proven, and the approach must be generous, erring on the side of allowing a novel, but arguable, claim to proceed. While no evidence is admissible on motion to strike, claimants must clearly plead all facts on which they intend to rely, as those facts are the basis on which the possibility of success will be evaluated. See Imperial Tobacco, at paras 17-22; and Frank v. Legate, at para. 36, and the cases cited therein. [See also Conway v. The Law Society of Upper Canada, 2016 ONCA 72, 395 DLR (4th) 100, at para. 7.]

[23] As stated by Epstein J. (as she then was) in Aristocrat Restaurants Ltd. v. Ontario, [2003] O.J. No. 5331 (S.C.), 2003 CarswellOnt 5574, at para. 18, “[t]he failure to establish a cause of action can occur in one of two ways. A claim will be found to be legally insufficient when either the allegations it contains do not give rise to a recognized cause of action or it fails to plead the necessary elements of an otherwise recognized cause of action. See: Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 164 D.L.R. (4th) 257 (C.A.) at pg. 264.”

[24] Epstein J. also states the following in Aristocrat, at paras. 19-21:

In order to survive the second type of rule 21.01(1)(b) motion, a plaintiff must, at minimum, plead the basic elements of a recognized cause of action pursuant to which an entitlement to damages is claimed. Vague allegations that make it impossible for an opposing party to reply should be struck. The court is permitted to strike out less than the entire pleading where the portion being struck is distinct.

Pleadings must contain material facts. Rule 25.06 provides that every pleading must contain a concise statement of the material facts on which the party relies for the claim or defence. Furthermore, a party must plead all of the facts that it must prove to establish a cause of action which is legally complete.

A pleading that shows a complete absence of material facts is considered frivolous and vexatious. Bare allegations should be struck a scandalous. This is particularly so where allegations of intentional or malicious conduct are made. See: Wilson v. Toronto (Metropolitan) Police Service, [2001] O.J. No. 2434 at paras. 66-67 (S.C.J.), aff’d., , [2002] O.J. No. 383 (C.A.). Rule 25.11 empowers the court to strike out pleadings on the ground that the pleading is scandalous, frivolous or vexatious.

[25] On a motion to strike, the moving party defendant bears the burden of demonstrating that the plaintiff could not possibly succeed; the plaintiff does not need to demonstrate that they will succeed: see Addison Chevrolet Buick GMC Ltd. v. General Motors of Canada Ltd., 2016 ONCA 324, 130 O.R. (3d) 161, at para. 23.

[26] The court in Addison, at para. 49, states in part: “This court has repeatedly noted that the function of the court differs in a rule 21 motion than during a summary judgment motion or trial: Mcllvenna v. 1887401 Ontario Ltd., 2015 ONCA 830, [2015] O.J. No. 6312, at paras. 19-20; Miguna, at para. 34.”

(b) Rule 25.06(8)

[27] Rule 25.06(8) provides that “Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.” The moving parties rely on this rule to strike the plaintiff’s claims for malicious prosecution and misfeasance in (abuse of) public office.

(c) Rules 21.01(3)(d) and 21.01(1)(a)

[28] Under rule 21.01(3)(d), a defendant may move to have the action stayed or dismissed on the ground that it is frivolous or vexatious or otherwise an abuse of the process of the court. The defendants move under this rule, as well as rule 21.01(1)(a), to have the action dismissed on the basis that Robson is attempting to re-litigate issues that have been previously determined by the Law Society Appeal Division.

[29] The defendants also move under rule 21.01(3)(d) on the basis that the claims for malicious prosecution and misfeasance in (abuse of) public office as currently pled are frivolous and vexatious.

Analysis

[30] The correct approach to be taken on a motion such as this regarding the claims of malicious prosecution and misfeasance in (abuse of) public office has recently been articulated by the Court of Appeal in Conway v. Law Society of Upper Canada, 2016 ONCA 72, 395 D.L.R. (4th) 100.

[31] In Conway, the appellant had a long history of disciplinary proceedings with the Law Society which is somewhat analogous to the case before me. The appellant was disbarred because of a finding that he had engaged in unauthorized practice, but that finding and consequent disbarment were set aside on appeal. Subsequently, the appellant commenced an action against the Law Society alleging that he had been unfairly singled out by them and that he had been denied due process.

[32] The Law Society brought a rule 21 motion seeking to strike the appellant’s statement of claim on the grounds that it disclosed no reasonable cause of action and was frivolous, vexatious, and an abuse of process. The motion judge struck out the entirety of the appellant’s statement of claim without leave to amend.

[33] In granting the appeal, the Court of Appeal found that, allowing for pleading deficiencies, the allegations of fact in the appellant’s statement of claim could give rise to a properly pleaded cause of action for misfeasance in public office. As a result, the Court granted leave to serve and file a fresh as amended claim to plead, with proper particulars, a tenable cause of action grounded in the tort of misfeasance in public office arising out of alleged bad faith conduct on the part of the Law Society.

[34] In Conway, as in the present case, the Law Society’s challenge to the plaintiff’s statement of claim was advanced by way of motion under rule 21 and not by way of summary judgment under rule 20. As a result, regarding the defendants’ challenge to the various causes of action pleaded by Robson, the factual allegations in the amended claim are to be taken as true unless patently ridiculous or incapable of proof.

[35] The three the causes of action at issue here are (1) negligent investigation, (2) malicious prosecution, and (3) misfeasance in (abuse of) public office. I will analyze the viability of each under rules 21.01(1)(a), 21.01(1)(b), 21.01(3)(d), and 25.06(8) and the applicable legal principles.

Negligent Investigation

[36] The moving parties request that all paragraphs grounded in “negligence” in the amended claim be struck, without leave to amend, on the basis that they disclose no reasonable cause of action. Determination of this request is to be made under rule 21.01(1)(b).

[37] For the reasons that follow, I find that it is “plain and obvious” that the cause of action grounded in the tort of negligent investigation discloses no tenable cause of action. All allegations based on this cause of action are struck without leave to amend.

[38] Section 9 of the Law Society Act, R.S.O. 1990, c. L.8 provides:

No action or other proceedings for damages shall be instituted against the Treasurer or any bencher, official of the Society or person appointed in Convocation for any act done in good faith in the performance or intended performance of any duty or in the exercise or in the intended exercise of any power under this Act, a regulation, a by-law or a rule of practice and procedure, or for any neglect or default in the performance or exercise in good faith of any such duty or power.

[39] In Conway, at para. 22, the court confirmed the principle that:

Mere negligence in the good faith performance of the LSUC’s duties or functions is not enough to establish liability. However, an absence of good faith or “bad faith”, involving malice or intent, is sufficient to ground a properly pleaded cause of action against the LSUC. See: Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; Finney v. Barreau du Quebec, 2004 SCC 36, [2004] 2 S.C.R. 17.

[40] The Supreme Court in Edwards, at para. 6, agreed with the Court of Appeal’s pronouncement in that case that imposing tort liability on the Law Society itself would, barring mala fides, be inconsistent with its “public interest” role: (2000) 48 O.R. (3d) 329.

[41] It is settled law that, while the wording of section 9 of the Law Society Act does not apply to the Law Society itself, disciplinary proceedings of the Law Society are judicial or quasi-judicial in nature. As a result, absent bad faith, the Law Society is immune from suit.

[42] Finlayson J.A., writing for the Court of Appeal in Edwards, at paras. 26, 27 30, and 40, addressed this issue by stating, in part:

It is also important to note that immunity to civil suit is codified in s. 9 of the Law Society Act. While it applies only to actions against officials of the Society and not the Law Society itself, the Legislature is presumed to know the law and must be taken to have recognized that the society itself has been traditionally immunized from civil actions by the common law…

It would be easy to dismiss the above authorities as being pre-Kamloops and, therefore, out of date, but this line of cases has been applied up to nearly the present-day. In Lee v. Law Society of Upper Canada, [1994] O.J. No. 1468 (Gen. Div.), for example, Chilcott J. held that “in the absence of bad faith or malice, the Law Society of Upper Canada cannot be sued for the negligent exercise of an investigation into the conduct of a solicitor.” This decision did not mention Kamloops…

This jurisprudence clearly establishes a judicial immunity from negligence for the Law Society’s discipline process, including the investigative function at the front end. The Law Society’s disciplinary powers must respond to its statutory mandate and the requirements of due process, not to a private law duty of care…

Following …the… remarks of Huddart J.A., it seems to me that there are very sound policy reasons for not burdening this judicial or quasi-judicial process with a private law duty of care. The public is well-served by refusing to fetter the investigative powers of the Law Society with the fear of civil liability. The invocation by the plaintiffs of the “public interest” role of the Law Society seems to be misconceived as it actually works to undermine their argument… the Law Society cannot meet this obligation if it is required to act according to a private law duty of care to specific individuals such as the appellants. The private lot duty of care cannot stand alongside the Law Society’s statutory mandate and hence cannot be given effect to.

[43] The following paragraphs, or portions of paragraphs as indicated, are therefore struck without leave to amend.

[44] The following paragraphs are struck in their entirety: 1(a), 26, 27, 28, 36, 37, 38, 39, 42, 43, 44, 55, 59, and 61.

[45] The portions of the following paragraphs indicated in brackets are struck:

• Paragraph 2 (“negligent investigation and”);
• Paragraph 4 (“irresponsible”);
• Paragraph 5 (“or recklessly wrongful or grossly negligent and in any event far below the requisite standard of care owed to Mr. Robson”);
• Paragraph 9 (“The negligent investigation of Mr. Robson and”);
• Paragraph 14 (“and as such was at all times aware of, or should have been aware of, the duties and standards of care and conduct which were breached by the Defendants as outlined in this Claim”);
• Paragraph 15 (“and as such was at all material times aware of, or should have been aware of, the duties and standards of care and conduct which were breached by the Defendant as outlined in this Claim”);
• Paragraph 16 (“and as such were at all times aware of, or should have been aware of, the duties and standard of care and conduct which were breached by them and the other Defendants as outlined in this Claim”); and
• Paragraph 29 (“was conducted in a partisan manner, was egregiously below the requisite standard, and was marked by such pervasive, constant, and serious failings, faults, flaws, and errors of the defendants as to constitute…reckless, or grossly negligent violations by the defendants of legal duties”).

Malicious Prosecution

[46] In Stoffman v. Ontario Veterinary Association, 73 O.R. (2d) 737 (Div. Ct.), at para. 10, the Court confirmed that professional disciplinary bodies are not immune from malicious prosecution actions. In this regard, the Court stated as follows:

In view of the clearly stated opinion of the Supreme Court that an action for malicious prosecution can lie even against the Attorney General and his agents, Crown Attorneys, there cannot be any policy reason why a professional disciplinary body should have absolute immunity from such suits. There should be no concern about courts second-guessing their judgments; only in cases where prosecutions are undertaken maliciously may an action lie.

[47] In Miazga v. Kvello Estate, 2009 SCC 51, 3 S.C.R. 339, at paras. 53-56, the Supreme Court of Canada confirms the four necessary elements of the tort of malicious prosecution. These are:

(a) a proceeding initiated by the defendant;

(b) a proceeding terminated in favor of the plaintiff;

(c) the defendant had no reasonable and probable cause to initiate the proceeding; and

(d) the defendant acted with malice.

[48] The moving party defendants focus on the sufficiency of the amended claim in relation to the fourth element, malice. They submit that the amended claim contains nothing more than general allegations without the full particulars required by rule 25.06(8). Therefore, the bald allegations of malice relating to malicious prosecution are frivolous and should be struck as scandalous.

[49] Malice is a required element of the tort of malicious prosecution. Robson relies on the decision in Finney v. Barreau du Quebec, 2004 SCC 36, 2 S.C.R. 17 for the proposition that malice can be made out by conduct so inexplicable that it suggests an absence of good faith.

[50] The plaintiff characterizes the Supreme Court in Finney as concluding that the prolonged and unexplained activity of Québec Law Society personnel in failing to respond to complaints, and failing to carry out their functions, amounted to a finding of malice. Accordingly, the plaintiff seeks to carry what he characterizes, essentially, as the “Finney test for malice” over to this action.

[51] With respect, this is not the right test or standard to apply to an action grounded in the tort of malicious prosecution. Finney was a case concerning s. 193 of the Quebec Professional Code, which prohibits prosecutions of professional orders and their officers and staff for acts engaged in “in good faith the performance of their duties” or functions.

[52] The determination in Finney turned on the meaning of good faith and bad faith within the meaning s. 193 of the Quebec Professional Code. It did not implicate or address the tort of malicious prosecution.

[53] The required elements that comprise the tort of malicious prosecution, and their meanings, are clearly set forth in the Miazga case. The Supreme Court of Canada made it clear, at para. 78 and 80, that the fourth essential element of the tort, namely malice, requires intentional conduct on the part of the tortfeasor:

The malice element of the test for malicious prosecution considers a defendant prosecutor’s mental state in respect of the prosecution at issue... However, even if the plaintiff should succeed in proving at the prosecutor did not have a subjective belief in the existence of the reasonable and probable cause, this does not suffice to prove malice, as the prosecutor’s failure to fulfill his or her proper role may be the result of inexperience, incompetence, negligence, or even gross negligence, none of which is actionable: Nelles, at p. 199; Proulx, at para. 35. Malice requires a plaintiff to prove that the prosecutor willfully perverted or abused the office of the Attorney General or the process of criminal justice.

[54] Robson has failed to plead the requisite full particulars regarding the circumstances and facts that would enable the trier of fact to infer malicious conduct. The pleading is vague. It lacks specified allegations and particulars of the improper purpose and ulterior motive alleged. I therefore strike those paragraphs, or portions of them, with leave to amend as follows.

[55] The following paragraphs are struck in their entirety: 1(b), 7, 38, 40, 45, 55, 56, 57, 58, and 59.

[56] The portions of the following paragraphs indicated in brackets are struck:

• Paragraph 2 (“The Plaintiff’s claim arises out of…malicious prosecution of Mr. Robson by the Defendants in the period in or about February 2002 to March 2015”);
• Paragraph 4 (“The Defendants engaged in an… malicious campaign against Mr. Robson, such that during the period from approximately February 2002 to May 2015, the Defendants conducted their investigation of the allegations against Mr. Robson and the prosecution of the LSUC charges (against) Mr. Robson primarily for the improper purpose of securing a conviction of Mr. Robson and in doing so they acted continuously and repeatedly in an egregious violation of their fundamental legal duties and their official obligations and they deliberately acted contrary to the findings and direction of the Court of Appeal regarding the foundational facts in issue. In doing so the defendants engaged deliberately in a course of … malicious conduct designed to harass and harm the plaintiff”);
• Paragraph 6 (“The Defendants instituted and conducted the subject LSUC Proceedings against Mr. Robson in a manner that was malicious…and in violation of their fundamental lawful duties and contrary to the findings and direction given by the Ontario Court of Appeal directly relating Mr. Robson. Throughout the Defendants regarded themselves above the law”); and
• Paragraph 9 (“the malicious prosecution of Mr. Robson by the Defendants…were the proximate cause of the damages caused to Mr. Robson”).

Misfeasance in (Abuse of) Public office

[57] The essential elements of the tort of misfeasance in (abuse of) public office are described in Conway, at para. 20, as follows:

The tort of misfeasance in public office has been variously described in the case law as the tort of abuse of public office or abuse of statutory power: Odhavji Estate v. Woodhouse, 2003 SCC 69, at paras 25 and 30. Whatever the nomenclature, the essence of the tort is the deliberate and dishonest wrongful abuse of powers given to a public officer, coupled with the knowledge that the misconduct is likely to injure the plaintiff: Odjhavji Estate v. Woodhouse, at para. 23. Bad faith or dishonesty is an essential ingredient of the tort: Odhavji Estate v. Woodhouse, at para. 28 and Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 501, at para. 85.

[58] As stated in Conway at para. 22, “[m]ere Negligence in the good faith performance of the LSUC’s duties or functions is not enough to establish liability. However, an absence of good faith or ‘bad faith’, involving malice or intent, is sufficient to ground a properly pleaded cause of action against the LSUC. See: Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; Finney v. Barreau du Quebec, 2004 SCC 36, [2004] 2 S.C.R. 17.”

[59] Like the claim for malicious prosecution, the current pleading does not plead full particulars of the specific acts or actions complained of. These particulars are required under rule 25.06(8).

[60] As in Conway, the plaintiff’s pleading as it currently stands is deficient regarding the particulars required for both the claims of malicious prosecution and misfeasance in (abuse of) public office. There are, however, general allegations, which are deemed to be true for the purposes of this motion, that could support a cause of action based on the alleged malicious and bad faith conduct. In this regard, it is important to highlight that this is a pleadings motion and not one for summary judgment. The paragraphs which plead the tort of misfeasance in (abuse of) public office are therefore struck with leave to amend.

[61] Adopting the test articulated in Conway, I do not conclude that it is not “plain and obvious” that no tenable cause of action is possible on the facts alleged in the amended claim. Accordingly, I decline to strike the plaintiff’s claim based on malicious prosecution or misfeasance in (abuse of) public office without leave to amend.

[62] Using the words in Conway, at paras. 23 and 30, “[t]he appellant’s statement of claim is replete with allegations that the LSUC intentionally acted dishonestly, fraudulently, and without statutory authority in its dealings with the appellant, knowing that its actions would cause and did cause damages to the appellant” … “Taking all of the appellant’s factual allegations as true and reading the essence of the pleading as a claim for misfeasance in public office [and in this case malicious prosecution], it is not plain and obvious that a proper pleading of a reasonable cause of action founded on the alleged bad faith conduct against the LSUC would fail.”

[63] Instead, I strike the paragraphs relating to the allegations of malicious prosecution and misfeasance in (abuse of) public office with leave to amend. This affords the plaintiff the opportunity to plead, with proper particulars as required under rules and 21.01(1)(d) and 25 06(8), these two causes of action.

[64] In doing so, however, I adopt the language of the Conway panel as to the proper particularity that is required in a statement of claim. As in Conway, the defendants in this proceeding are entitled to know with particularity the case they have to meet.

[65] I would further adopt the language of the Conway panel, at para. 39, as it applies to the torts based on malice, bad faith, and dishonesty: “[s]ince bad faith or dishonesty is an essential ingredient of the tort of misfeasance in public office, rule 25.06(8) requires that full particulars be pleaded: Gratton-Masuy, at para. 88-89.”

[66] I make this point, and adopt this language, because counsel for the plaintiff seemed to suggest, in argument, that he was not in a position to offer particulars in his pleadings relating to the two torts of malicious prosecution and misfeasance in (abuse of) public office.

[67] With respect, that is not tenable or realistic position to take in a pleadings motion of this kind. It is important to be clear that the factual matrix underlying this case is not at all analogous to Khan (Litigation Guardian of) v. Lee, 2014 ONCA 889, 123 O.R. (3d) 709, a medical malpractice case where no allegations of bad faith or malice were made, where the court concluded that the plaintiff was not in a position to offer detailed particulars in its pleading. Regarding the present causes of action grounded in alleged malice and bad faith conduct, particulars of the specific acts complained of, i.e. “who did what and when,” must be pled. Anything less is a bald allegation which will be found to be “frivolous and vexatious.” As the Court states, in part, in Salehi v. Association of Professional Engineers of Ontario, 2016 ONCA 438, 2016 CarswellOnt 8611, at para. 9: “The party claiming bad faith must provide specific allegations of it.”

[68] Regarding the claims grounded in malicious prosecution and misfeasance in (abuse of) public office, and my decision to grant leave to amend, I find that leave is appropriate at this stage of the litigation. As articulated in part in Conway, at para. 16, “[t]he decision not to grant leave to amend should only be made in the clearest of cases, when it is plain and obvious that no tenable cause of action is possible on the facts as alleged: South Holly Holdings Ltd. v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6.” See also: Tran v. University of Western Ontario, 2015 ONCA 295, [2015] O.J. No. 2185, at para. 26.

[69] In this case, Robson amended his claim after the motion was served, but before any determination was made or guidance given by the court regarding the identified deficiencies, if any, in the original or amended claim. This is a different factual scenario than that where an order is made following a pleadings motion and the plaintiff fails to comply with the court’s direction. This determination does not prevent the defendants from bringing a further motion to strike should this order not be complied with.

[70] The following paragraphs or portions of paragraphs are struck with leave to amend. Paragraph 2 (“and/or abuse of public office by the Defendants during this period”), Paragraph 4 (“bad faith”), Paragraph 5 (“in bad faith”), Paragraph 6 (“in bad faith”), Paragraph 9 (“and the abuse of public office”), Paragraph 11, Paragraph 29 (“The Investigation was carried out in bad faith…as to constitute willful”), and Paragraph 45.

Abuse of Process – Re-litigation of Issues

[71] The defendants submit that this action is an abuse of process because Robson seeks to re-litigate issues that were previously determined by the Law Society Appeal Division. The Appeal Division, in its decision, made a determination that the hearing panel had erred in the manner in which it concluded that Robson was guilty of professional misconduct. As a result, the order of first instance was set aside.

[72] Subsequently, Robson sought costs. In its reasons dated May 22, 2015, the Appeal Division states, at para. 14, “[H]owever, we do not conclude that the Law Society’s conduct was without reasonable justification, patently unreasonable, malicious, taken in bad faith or for a collateral purpose”.

[73] In Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63, 3 S.C.R. 77, at para. 37, the Supreme Court quotes Goudge J.A. in Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.).

In the context that interests us here, the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in a way that would … bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A.; dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as an issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.).

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to re-litigate a claim which the court has already determined. [Emphasis added by Arbour J.]

[74] In Toronto (City), at para. 38, the Supreme Court confirms that:

The doctrine of abuse of process has been extended beyond the strict parameters of res judicata while borrowing much of its rationales and some of its constraints. It is said to be more of an adjunct doctrine, defined in reaction to the settled rules of issue estoppel and cause of action estoppel, than an independent one (Lange, supra, at p. 344). The policy grounds supporting abuse of process by re-litigation are the same as the essential policy grounds supporting issue estoppel (Lange, supra, at pp. 347-48):

The two policy grounds, namely, that there be an end to litigation and that no one should be twice as vexed by the same cause, have been cited as policies in the application of abuse of process by re-litigation. Other policy grounds have also been cited, namely, to preserve the courts’ and the litigants’ resources, to uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice.

[75] In applying the applicable legal principles to the record before me, I find that this action is not an attempt to re-litigate a claim which was already determined at the costs hearing before the Law Society Appeal Division. I therefore refuse to dismiss this action on that basis.

[76] In coming to this conclusion, I am mindful of the comments of the Supreme Court in Toronto (City), where, at para. 53, the court states in part: “The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result.”

[77] The issues pled in the amended claim were not, in their entirety, presented or argued before the Law Society Appeal Division as part of the costs determination. The issues for determination in the amended claim are, in many respects, different than those which were before the hearing panel. The discretionary doctrine of abuse of process is to be applied on a case by case basis.

[78] In my respectful view, to dismiss the plaintiff’s claim in its entirety based on the doctrine of abuse of process, res judicata, or estoppel on the basis that the costs decision of the hearing panel was dispositive of the issues, would, at this stage of the litigation, be “manifestly unfair” to the plaintiff given the context in which the comments at para. 14 of the hearing panel’s costs determination were made.

[79] Robson is granted leave to serve and file a fresh as amended statement of claim in accordance with these reasons for decision within 60 days.

[80] I encourage the parties to agree on the issue of costs. If they cannot, written submissions of no more than three pages, along with a costs outline, may be submitted by the defendants by September 26, 2016. The plaintiff may submit his costs submissions on the same basis by October 7, 2016. Any reply is to be submitted by October 13, 2016.

Firestone J.

Released: September 14, 2016

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: PAUL ALEXANDER ROBSON Plaintiff (Responding Party) – and – THE LAW SOCIETY OF UPPER CANADA, ZEYNEP ONEN, MARK PUJOLAS, LISA FREEMAN and JAN PARNEGA-WELCH Defendants (Moving Parties)

REASONS FOR DECISION Firestone J. Released: September 14, 2016