Court File and Parties

COURT FILE NO.: CV-15-535850

DATE: 20180306

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: PAUL ALEXANDER ROBSON

AND:

THE LAW SOCIETY OF UPPER CANADA, ZEYNEP ONEN, MARK PUJOLAS, LISA FREEMAN, and JAN PARNEGA-WELCH

BEFORE: P. J. Monahan J.

COUNSEL: Richard Watson, for the Plaintiff

Sean Dewart and Ian McKellar for the Defendants

HEARD: February 2, 2018

ENDORSEMENT

[1] The Law Society of Upper Canada (the "Law Society”) brings a motion under Rule 21 to strike out the Plaintiff’s Fresh as Amended Statement of Claim dated February 1, 2018 (the “Amended Claim”) as frivolous and disclosing no cause of action. In previous proceedings before Firestone J. of this Court, a May 30, 2016 draft of the Plaintiff’s statement of claim (the “2016 Claim”) was substantially struck out with leave to amend.[^1] The Plaintiff’s Amended Claim attempts to remedy the deficiencies identified by Firestone J. The Law Society argues that the Amended Claim continues to lack the particulars of the allegations pleaded and should be struck without leave to amend.

[2] For the reasons that follow, I would grant the Law Society’s motion, strike out the Amended Claim without leave to amend, and dismiss the Plaintiff’s action together with costs of the action.

Facts

[3] The underlying events that give rise to the Amended Claim relate to Law Society disciplinary proceedings against the Plaintiff that began in 2002 and are ongoing.[^2] The Defendants Zeynep Onen, Mark Pujolas, Lisa Freeman and Jan Parnega-Welch (the “Individual Defendants”) are or were employed by the Law Society during the course of its investigations and proceedings involving the Plaintiff over the past 15 years.

[4] A 2013 Law Society Hearing Panel determined that the Plaintiff was guilty of professional misconduct[^3] and, in April 2014, revoked his license to practice law.[^4] However that decision was overturned on appeal to the Law Society Tribunal Appeal Division, on the basis that the Hearing Panel had improperly relied upon findings of fraud involving the Plaintiff that had been made in earlier proceedings before the Ontario Superior Court.[^5] In subsequent reasons, the Appeal Division declined to grant costs in favour of the Plaintiff, indicating that “… we do not conclude that the Law Society’s conduct was without reasonable justification, patently unreasonable, malicious, taken in bad faith, or for collateral purpose.” It concluded that the Law Society proceedings were not unwarranted in law or that the law society caused costs to be incurred without a reasonable basis.[^6]

[5] On September 8, 2015, the Plaintiff issued a statement of claim against the Law Society. In it he makes allegations of the following nature:

a. the Defendants carried out the investigation of Mr. Robson in a manner that was “intentionally or recklessly wrongful or grossly negligent and in any event far below the requisite standard of care”, and was marked by “pervasive, constant, and serious failings, faults, flaws, and errors”;

b. the Defendants instituted and conducted the disciplinary proceedings against Mr. Robson in a manner that was “malicious, in bad faith, and in violation of their fundamental lawful duties”;

c. the Defendants “wrongfully blinded themselves to any pursuit of justice” and wrongfully conducted the disciplinary proceedings with the overriding intent to disbar Mr. Robson

[6] The Plaintiff seeks damages totaling $220 million.

[7] In late 2015, the Defendants brought a motion under Rule 21 to strike the claim and dismiss the action as an abuse of process. Firestone J. struck out the Plaintiff’s claim in negligence without leave to amend on the basis that it was plain and obvious “that the cause of action grounded in the tort of negligent investigation disclosed no tenable cause of action.”[^7] The Plaintiff’s appeal of Firestone J’s ruling on the negligence claim was dismissed by the Court of Appeal in June 2017.[^8]

[8] Firestone J. also struck the claims for malicious prosecution and misfeasance in public office, but with leave to amend. The Supreme Court of Canada has held that claims for malicious prosecution and misfeasance in public office require proof of malice.[^9] Firestone J. was of the view that the Plaintiff had failed to plead the requisite full particulars regarding the circumstances and facts that would enable the trier of fact to infer malicious conduct. In Firestone J.’s view, the pleading was unduly vague. It lacked specified allegations and particulars of the improper purpose and ulterior motive alleged. The Defendants were entitled to know with particularity the case that they had to meet:[^10]

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 [of Appeal] states, in part, in Salehi v. Association of Professional Engineers of Ontario, 2016 ONCA 438,…: “The party claiming bad faith must provide specific allegations of it.”

[9] Although Firestone J. struck the claims for malicious prosecution and misfeasance as then pleaded, he granted leave to amend on the basis it was possible that the allegations could support a cause of action if drafted with sufficient particularity. He added that the fact he granted leave to amend did not prevent the Defendants from bringing a further motion to strike should his guidance regarding identified deficiencies not be satisfied through an amended pleading.

[10] The Plaintiff served an amended statement of claim on November 14, 2016 as directed by order of Firestone J. The November 2016 version of the claim maintained the allegations that the Defendants engaged in malicious prosecution and misfeasance of public office but did not advance a claim in negligence. The Defendants subsequently brought this second motion under rule 21 to strike the November 2016 version of the claim.

[11] On February 1, 2018, one day before the scheduled hearing of the present Rule 21 motion, the Plaintiff delivered a motion record seeking leave to further amend his claim, and appending the Amended Claim. As Firestone J. noted in his reasons, the normal practice is that where a motion to strike has been served, the Rule 21 motion should take priority over any subsequent cross-motion to amend the pleadings.[^11] However, at the commencement of the hearing counsel for the Defendants waived any objection to the Plaintiff’s motion to further amend his claim. Accordingly the Defendants’ motion will be considered on the basis of the Amended Claim.

Analysis

[12] The issue on this motion is whether the Amended Claim complies with the direction set out in Firestone J.’s 2016 ruling. This requires a consideration of whether the Amended Claim contains particulars of the improper purpose or ulterior motive necessary to ground a claim for malicious prosecution or misfeasance in office, as required by Rule 25.06(8).

[13] Most of the amendments proposed by the Plaintiff to the 2016 Claim are relatively minimal. In some cases paragraphs from the 2016 Claim have been reproduced in the Amended Claim without any changes.[^12] In other instances, the Plaintiff has added additional wording of a general nature that fails to add any particularity to the relevant allegation.

[14] For example, Firestone J. struck the following paragraph of the Plaintiff’s Claim in its entirety:

7. The proceedings before the hearing panel that ultimately disbarred the Plaintiff, were conducted to the knowledge of the Defendants in a manner that was profoundly unfair and deliberately designed to secure a conviction without regard to the Plaintiff’s rights or the rules of fairness. Despite the subject panel’s abuse being repeatedly drawn to the LSUC’s attention by the Plaintiff, the LSUC allowed the panel’s misconduct to continue.

[15] The Plaintiff has now amended this paragraph as follows (changes in bold):

7. The proceedings before the hearing panel that ultimately disbarred the Plaintiff for several months, were conducted to the knowledge of the Defendants in a manner that was profoundly unfair and deliberately designed to secure a conviction without regard to the Plaintiff’s rights or the rules of fairness or the truth. Despite the subject panel’s abuse being repeatedly drawn to the LSUC’s attention by the Plaintiff, the LSUC allowed the panel’s misconduct to continue.

[16] It is evident that the additional wording adds nothing of substance to the original pleading.

[17] A further example of the relatively minimal changes made by the Plaintiff is provided by comparing paragraph 45 in the 2016 Claim with paragraph 34 in the Amended Claim. Paragraph 45 in the 2016 Claim had stated as follows:

45. The Defendants repeated and egregious breaches of their duties demonstrate the Defendants’ malice in the LSUC’s prosecution of Mr. Robson.

[18] The Plaintiff amended this paragraph as follows in the Amended Claim (changes in bold):

34. The Defendants repeated and egregious breaches of their duties demonstrate the Defendants’ malice and abuse of office in the LSUC’s prosecution of Mr. Robson.

[19] The addition of the words “and abuse of office” merely repeats the legal conclusion proposed by the Plaintiff with no further particulars of the alleged actions giving rise to the proposed conclusion.

[20] Certain paragraphs in the Amended Claim purport to expand slightly on the Plaintiff’s previous allegations regarding the investigation conducted by the Law Society. The new allegations are bolded in the paragraphs that follow:

4. The Defendants engaged in a malicious and abusive campaign against Mr. Robson, such that during the period from approximately February 2002 to May 2015, they conducted their investigation of the allegations against Mr. Robson and the prosecution of the LSUC instituted charges against Mr. Robson which were brought primarily for the purpose of securing a conviction of Mr. Robson in reliance on a misguided approach to the prosecution and an incomplete evidentiary record. In doing so they acted continuously and repeatedly in an egregious violation of their fundamental legal duties and their official obligations to Mr. Robson and they deliberately acted contrary to the findings and direction of the Court of Appeal regarding the foundational facts in issue. In so doing, the Defendants deliberately engaged in an inexcusable course of bad faith and malicious and abusive conduct designed to harass and harm the Plaintiff. They knew that the original judgment obtained against Mr. Robson was neither correct nor were many of the material facts relied on by the trial judge accurate. After years of investigating only witnesses in possession of facts in their favour and after application proceedings were well underway, the Defendants then determined that they could only rely on the judgment of the trial judge and framed that judgment as their case in chief.

5. Further, the Defendants carried out the investigation of Mr. Robson in bad faith in a manner that was intentionally designed to only ascertain allegations favorable to them and in so doing, they deliberately ignored the truth and even went so far as to preclude unfavorable witnesses from being interviewed by them despite the pleas from the said witnesses.

6. The wrongful disbarment of Mr. Robson was set aside in November 2014 by a LSUC Hearing Panel. No costs were awarded to Mr. Robson and no apology was given. An appeal was launched by the Defendants but was ultimately abandoned according to the LSUC's statement because of the date of the allegations and the fact that that the Plaintiff had suffered a six-month suspension. That statement was disingenuous, in fact, the appeal was abandoned because the Defendants had no prospect of succeeding against the Plaintiff, and the Defendants remained desirous of securing the disbarment of the Plaintiff.

[21] The allegations in amended paragraphs 4 and 5 repeat similar allegations that had been made in the 2016 Claim. The Plaintiff had previously complained that the Law Society had failed to consider witnesses he had proposed and wrongly placed faith in witnesses who testified against him.[^13] The allegations in paragraphs 4 and 5 lack any particularity in that no details are provided as to which witnesses were ignored, by whom and on what basis. Nor is it explained how it could be an abuse of office to rely upon findings made by a Judge of the Ontario Superior Court, which were subsequently found by the Court of Appeal to be well supported by the evidence.[^14]

[22] Similarly, the reference in amended paragraph 10 to an appeal having been launched and then abandoned by the LSUC “because the Defendants had no prospect of succeeding against the Plaintiff” is conclusory and lacking in specificity. Moreover, it is difficult to see how the mere initiation of an appeal followed by its abandonment could support a claim of malicious prosecution or abuse of public office.

[23] Reading the Amended Claim as a whole and in its entirety, it is evident that the allegations made by the Plaintiff continue to be stated in broad and general terms without any particularity. This is illustrated by the fact that nowhere in the Amended Claim is there any discussion of specific actions allegedly taken by any of the Individual Defendants.[^15] Firestone J. had indicated that the Defendants were entitled to details of the specific acts complained of, i.e. “who did what and when”. Yet the Individual Defendants continue to be left in the dark as to what they are alleged to have done that would give rise to liability for malicious prosecution or abuse of public office.

[24] The Amended Claim adds a series of allegations regarding the manner in which the Law Society has investigated complaints received against the Plaintiff in 2013 and 2015. However, as the Amended Claim itself discloses, these investigations resulted in findings of professional misconduct by the relevant LSUC Hearing Panels in 2016 and 2018.[^16]

[25] An essential element of the tort of malicious prosecution is that the prosecution must have been terminated in a plaintiff’s favour. A plaintiff cannot claim that a prosecution is malicious if it results in a finding that he or she in fact committed the wrongful acts alleged.[^17] Similarly, a plaintiff cannot succeed in a claim that a public office holder abused his or her office through the commencement of a prosecution that was successful and thus determined to have been properly brought. Thus the additional allegations regarding the proceedings arising out of the 2013 and 2015 complaints cannot support a finding of malicious prosecution or abuse of public office because those proceedings resulted in findings of professional misconduct on the part of the Plaintiff.

[26] The Amended Claim contains a further allegation with respect to the passage of an amendment to the LSUC’s Rules of Practice and Procedure in 2009. This amendment is said to have allowed hearing panels to rely on the truth of a finding of liability by a competent tribunal unless the member could demonstrate otherwise, thereby shifting the burden of proof in favour of the LSUC. There is no allegation that this amendment was ultra vires or in any way unlawful. I see no basis upon which the passage of a duly authorized and lawful amendment to the Rules of Practice and Procedure could form the basis for an action for malicious prosecution or abuse of office.

[27] In short, the Amended Claim is essentially unresponsive to the guidance provided by Firestone J. in his earlier Rule 21 ruling. Far from clarifying “who did what and when”, the Amended Claim simply repeats the same sorts of bald and conclusory statements that gave rise to Firestone J.’s determination that the claims for malicious prosecution and abuse of office should be struck out. The Defendants are left to speculate as to what actions they might have taken, or failed to take, that were improper or constituted an abuse of their office.

[28] In oral argument counsel for the Plaintiff assured the Court that his client had sufficient evidence of alleged wrongdoing and that, should the Amended Pleading be found deficient, further leave to amend should be granted. In fact, however, the Amended Claim represents the fourth iteration of the Plaintiff’s allegations against the Defendants. Not only has the Plaintiff had the benefit of Firestone J.’s guidance in 2016, he also had an opportunity to review the submissions of the Defendants on this motion prior to delivering his Amended Claim. Thus the Plaintiff has been provided with more than ample opportunity to provide specifics of the Defendant’s alleged wrongdoing. I see no point or purpose in granting yet another opportunity to amend the claim. Nor would any such further opportunity be fair to the Defendants, who have been forced to respond to serious but entirely general allegations of improper conduct for a period of over 2 years.

[29] Accordingly, I strike out the Plaintiff’s Amended Claim without leave to amend and dismiss the Plaintiff’s action together with costs. I leave it to the parties to attempt to settle between them the quantum of costs. In the event that they are unable to do so, the Defendants may make written cost submissions of no more than 3 pages (excluding Bills of Costs and offers to settle) within 21 days, with the Plaintiff providing reply costs submissions on a similar basis within 21 days of the date for the Defendant’s submissions.

Monahan J.

Date: March 06, 2018

[^1]: See Robson v. Law Society of Upper Canada, 2016 ONSC 5579 (" Law Society v. Robson 2016"). [^2]: See, for example, the January 9, 2018 decision of a Law Society Hearing Panel finding the Plaintiff guilty of professional misconduct for, amongst other things, engaging in abusive and unprofessional communications with Law Society tribunal adjudicators and staff: The Law Society of Upper Canada v. Robson, 2018 ONLSTH 6 ("Law Society v. Robson 2018"). [^3]: Law Society of Upper Canada v. Robson, 2013 ONLSHP 49 (March 21, 2013). [^4]: Law Society of Upper Canada v. Robson, 2014 ONLSTH 68 (April 24, 2014). [^5]: See Law Society of Upper Canada v. Robson, 2015 ONLSTA 4. [^6]: Law Society of Upper Canada v. Robson, 2015 ONLSTA 18 at paragraph 14. [^7]: Law Society of Upper Canada v. Robson 2016, at paragraphs 36 to 45. [^8]: Robson v. Law Society of Upper Canada, 2017 ONCA 468. [^9]: Miazga v. Kvello Estate, 2009 SCC 51 ("Miazga"). [^10]: Law Society of Upper Canada v. Robson 2016, at paragraph 67. [^11]: Law Society v. Robson 2016, at paragraphs 17 to 20. [^12]: For example, paragraphs 56, 57 and 58 in the Claim that was before Firestone J. have been reproduced without any amendment in paragraphs 47, 48 and 49 of the amended Claim. [^13]: See paragraphs 22 and 34 of the Claim dated May 30, 2016. [^14]: Robson Estate v. Robson, 2004 41181 (ONCA). Although the Law Society Appeal Panel found that the reliance upon findings made by the Ontario Superior Court was legally incorrect, the Appeal Panel also indicated that the Law Society's conduct was not unreasonable, malicious or taken in bad faith. See note 6 above. [^15]: The only reference in the Amended Claim to the Individual Defendants is to the fact that they were involved in the proceedings involving the Plaintiff. [^16]: See Law Society of Upper Canada v. Robson, 2016 ONLSTH 198; Law Society v. Robson 2018. [^17]: Miazga at paragraph 54.