CITATION: Ricci v. Law Society of Upper Canada, 2017 ONSC 6942

COURT FILE NO.: CV-16-549970

DATE: 20171218

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Jonathane Ricci, Plaintiff

AND:

The Law Society of Upper Canada, Mary Ann Lord, Janice L. LaForme and David W. Cass, Defendants

BEFORE: Pollak J.

COUNSEL: James Morton, for the Plaintiff

Susan Sack, for the Defendants

HEARD: November 20, 2017

Reasons for decision

[1] This is a motion for summary judgment to dismiss this action against the Law Society of Upper Canada (the “Law Society”) and its employees Mary Ann Lord, Janice L. LaForme and David W. Cass (collectively the “Defendants”).

[2] In this action, the Plaintiff, Mr. Jonathane Ricci, claims damages against the Defendants for their alleged negligence leading to his suspension from practice, breach of his Charter rights, and defamation through the publication of notices on the Law Society public website.

[3] At the hearing of this motion, the Plaintiff advised that his claim is for negligence and he no longer claims negligent investigation against the Defendants for defamation or breach of his Charter rights. Further, the court heard no submissions on these claims.

[4] After an investigation by the Defendants, the Law Society Tribunal held that the Plaintiff failed to cooperate with the Law Society’s investigation, and was consequently suspended. This finding and his suspension for professional misconduct were not appealed. The Plaintiff’s defence at the Tribunal hearing was that he was entitled to be given specific reasons by the Law Society for the investigation before he had to cooperate. He argued that because the Law Society would not give him what amounts to “reasonable justification” on each particular file they requested as part of the investigations, he did not have to comply with their requests for further information.

[5] The position of the Defendants is that they did not owe the Plaintiff, or breach, any duty of care, and that even if they did, they were not negligent, as alleged. Further, the Defendants argue that, as there is no evidence of their malice or bad faith, they are covered by statutory immunity pursuant to s. 9 of the Law Society Act, R.S.O. 1990, c. L.8 (the “Act”).

[6] The Defendants submit that in this action and on this motion for summary judgment, the Plaintiff raises the same issues that were adjudicated by the Law Society Tribunal, which constitutes a collateral attack on those proceedings.

[7] Section 49.3(1) of the Act provides as follows:

The Society may conduct an investigation into a licensee’s conduct if the Society receives information suggesting that the licensee may have engaged in professional misconduct or conduct unbecoming a licensee.

[8] The Plaintiff argues on this motion that the question before the court is whether the reasonable suspicion standard that applies to the production of documents, which flows from the authorization provision above, is to be met on a file by file or client by client basis, or that the standard is met once and then all client files are available to the Law Society regardless if they involve different matters and parties. The Plaintiff emphasizes that if there is uncertainty in this analysis then the court should lean towards protecting solicitor-client privilege, citing Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555.

[9] Further, the Plaintiff submits that whether “reasonable suspicion” applies on a file by file basis or is a global finding is a matter of statutory interpretation. He submits that the language of the Act “is not dispositive and so principles of statutory interpretation must be employed”. He argues that if the legislature intended to create a situation where any files could be reviewed by the Law Society and so a global breach of privilege would emerge, then very explicit language would be engaged.”

[10] This question is important, the Plaintiff submits, because he relies on the Defendants’ negligence in this regard to argue that their actions exceed the scope of their authority pursuant to the provisions of the Act, and therefore they have no immunity provided by the Act.

[11] The statutory immunity relied on by the Defendants is set out in s. 9 of the Act:

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.

[12] The Defendants rely on the Ontario Court of Appeal finding in Conway v. Law Society of Upper Canada, 2016 ONCA 72, 344 O.A.C. 291, at para. 22, that:

Mere negligence in the good faith performance of the [Law Society’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 [Law Society].

[13] To defend their conduct toward the Plaintiff, the Defendants also rely on s. 49.12(1) of the Act, which prohibits employees of the Law Society from disclosing information obtained during an investigation, audit, review, search, seizure or proceeding, except if an exception applies, including that the disclosure of information is a matter of public record.

[14] The Defendants submit that their position on this motion demonstrates that the Plaintiff is relitigating issues heard before the Tribunal and that, as a collateral attack, this action is an abuse of process.

[15] Both parties agree that on this motion for summary judgment, the direction given by the Supreme Court of Canada in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, should be followed. The Supreme Court of Canada held as follows, at para. 49:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

[16] Following this guidance by the Supreme Court of Canada, I must ask if I can make a fair and just decision on the merits. I find that the answer is that I can do so. I find that on the basis of the record before me, the Plaintiff’s action is an attempt to relitigate the issues heard by the Tribunal and is therefore a collateral attack on these proceedings, which is an abuse of process. The findings of the Tribunal were not appealed. I also find that the Defendants are protected by the statutory immunity provided for in s. 9 of the Act as there is no evidence of bad faith on the part of any of the Defendants. Section 9 provides immunity for those acts done in good faith in the performance or intended performance of any duty or power under the Act. For these reasons, the Plaintiff’s claim must be dismissed.

Costs

[17] If the parties are unable to agree on costs, they may make brief written submissions to me no longer than three pages in length. The Defendants’ submissions are to be delivered by 12:00 p.m. on January 3, 2018, and the Plaintiff’s submissions are to be delivered by 12:00 p.m. on January 10, 2018. Any reply submissions are to be delivered by 12:00 p.m. on January 17, 2018.

Pollak J.

Date: December 18, 2017