Court File and Parties
COURT FILE NO.: CV-13-2855 DATE: 2019 05 03
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: AHMAD ALLIE KHAN v. PATRICK S. MOORE, PETER HURST, and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
BEFORE: Doi J.
COUNSEL: Ahmad Allie Khan, Self-Represented Rafal Szymanski, for the Defendants
HEARD: February 11, 2019
E N D O R S E M E N T
Overview
[1] The Plaintiff has brought a motion for partial summary judgment for lost income amounting to $588,000.00, that is said to have resulted from the Defendants improperly having denied his licence and registration application under the Motor Vehicle Inspection Station Program administered by the Ministry of Transportation. In their cross-motion, the Defendants seek summary judgment: (i) to dismiss the entire action because it was commenced after the applicable limitation period had expired; (ii) in the alternative, to dismiss the action against the defendant Crown for lack of statutory notice; (iii) in the further alternative, to dismiss the Charter damages claim against the personally-named Defendants as the claim is not actionable against them; and (iv) in the further alternative, to dismiss the action as it is not supported by the evidence.
[2] For the reasons set out below, the Defendants’ cross-motion is granted and the entire action is dismissed for being untimely as it was commenced after the applicable two (2) year limitation period had expired. While my decision on the limitation issue disposes of the entire action, I also accept the Defendants’ submissions to dismiss the action against the Crown for lack of statutory notice, and to dismiss the Charter claim against the personally-named Defendants as it is not actionable against them. I would not grant summary judgment to dismiss the action for being unsupported by the evidence.
[3] While the Defendants’ cross-motion disposes of this action, I also address the Plaintiff’s motion for partial summary judgment. As set out below, I would have dismissed the motion given the serious credibility issues that would have required a trial of the action.
Background
[4] On March 23, 2006, the Plaintiff, Mr. Khan, applied to the Ministry of Transportation (“Ministry”) for a licence to operate a Motor Vehicle Inspection Station (“MVIS”) and to be registered as a Motor Vehicle Inspection Station Mechanic (“MVISM”) under the Motor Vehicle Inspection Station Program. By Notice of Proposal dated April 6, 2006, Peter Hurst, the Director of Vehicle Inspection Standards and a personally-named Defendant, denied Mr. Khan’s application after finding that his past conduct gave reasonable grounds to believe that he would not act in accordance with the law and with honesty and integrity, as required under ss. 91(3)(a) and (c) ( Motor vehicle inspection station licence ) and ss. 92(4)(a) and (b) ( Motor vehicle inspection mechanic ) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended (“HTA”). In arriving at this finding, the Director relied on: (i) Mr. Khan’s record of convictions for HTA offences related to the MVIS program between 1979 and 2000; (ii) a finding by the Licence Suspension Appeal Board that Mr. Khan had improperly issued safety standards certificates and vehicle inspection stickers between 1996 and 1998; false statements on Mr. Khan’s application for registration as an MVIS mechanic; Mr. Khan’s breach of the HTA by issuing safety standards certificates after his application to be licenced as an MVISM had been rejected; and Mr. Khan’s conduct related to an MVIS owned by his brother (whose licence was ultimately revoked) which led the Director to believe that the MVIS station that Mr. Khan sought to operate would not be operated in accordance with the law, and with honesty and integrity.
[5] On May 24, 2006, Mr. Khan appealed the Director’s refusal to the Licence Appeals Tribunal (“LAT”). In its November 27, 2006 decision, the LAT dismissed the appeal and upheld the Director’s conclusion that he would not conduct himself in accordance with the law and with honesty and integrity; Khan (cob Khan Auto and Truck Repairs) (Re), [2006] O.L.A.T.D. No. 527. Writing for the LAT, Vice-Chair Flude found (at paras. 57-58) that Mr. Khan had abused his positions of authority, displayed a high degree of wilful blindness, and showed an absence of remorse or responsibility.
[6] John Tomasone, an inspector with the Ministry, was the charging officer for most of the HTA cases which resulted in Mr. Khan being convicted. Inspector Tomasone testified that Mr. Khan made false statements by issuing mechanical fitness certificates for vehicles that did not comply with applicable requirements for certification.
[7] In one case, André J. of the Ontario Court of Justice (as he then was) overturned Mr. Khan’s conviction under the HTA on appeal. In reasons delivered on May 12, 2003, André J. found that Inspector Tomasone’s evidence had been seriously deficient as he did not know the required specifications for finding certain regulatory breaches, did not use an appropriate tool to make certain measurements, and did not properly confirm whether or not certain vehicular equipment had been operating properly. André J. overturned Mr. Khan’s conviction after determining that it would be a “grave error” to allow it to stand.
[8] Mr. Khan now seeks to apply André J.’s appeal findings from that case to all of his other HTA convictions to cast doubt over the correctness or reliability of his convictions. He further relies on André J.’s findings to question the LAT’s decision of November 27, 2006 upholding the Director’s refusal to licence and register him. In making this submission, Mr. Khan claims that he was the target of a vendetta that had been perpetrated by Inspector Tomasone, Director Hurst, and Patrick Moore, a lawyer at the Ministry who prosecuted cases against Mr. Khan and is a personally-named Defendant in this action.
[9] Mr. Khan points to Mr. Moore’s complaint against him to the Law Society of Upper Canada (as it then was) on December 7, 2009 as further evidence of the Ministry’s alleged conspiracy against him.
[10] In addition to working as a licenced mechanic, Mr. Khan has practiced as a paralegal since 1997 to the apparent satisfaction of his clients and without any complaints until Mr. Moore made his to the Law Society.
[11] After observing Mr. Khan in court, Mr. Moore checked the Law Society paralegal directory which identified him as a licenced paralegal. Given his prior dealings with Mr. Khan, Mr. Moore advised the Law Society of Mr. Khan’s record of HTA convictions for making false statements, and his unsuccessful applications to the MVIS Program based on the Director’s findings that he would not act in accordance with the law and with honesty and integrity. Following its investigation, the Law Society referred Mr. Khan to a suitability hearing before a Law Society Hearing Panel to address whether he had made false or misleading representations in his paralegal licence application by failing to disclose his HTA convictions and unsuccessful applications to the Ministry.
[12] The Law Society Hearing Panel heard the case against Mr. Khan on September 19 and 20, 2011 and November 25, 2011, and rendered its decision on March 5, 2013; Ahmad Allie Khan v. The Law Society of Upper Canada, 2013 ONLSHP 41. In its reasons, the Hearing Panel accepted that Mr. Khan inadvertently had not disclosed certain HTA convictions on his paralegal application due to a mistaken belief that the convictions had been removed from his record after a three year period (i.e., which is the regime for moving violation offences, but not those for which he was convicted). It also found that Mr. Khan did not disclose a further HTA conviction because it had been appealed successfully, although the supporting documentation for the appeal disposition bore his name until it was manually crossed off and replaced in handwriting with his brother’s name. It is unclear who made this change and why.
[13] The Hearing Panel described Mr. Khan’s demeanor at the hearing as respectful and forthright, and regarded his years as a paralegal and as a local mechanic serving his community to be a more reliable indication of his character than his troubled history with the Ministry. Given André J.’s serious concerns with Inspector Tomasone’s investigative methods and competence, the Hearing Panel found good reason to question the reliability of his record of convictions. It also noted that the Ministry had been subject to civil actions by Mr. Khan’s family, and that the complaint to the Law Society had been made by Mr. Moore, a lawyer for the Ministry. In all of these circumstances, the Hearing Panel stated (at para. 32) that it had “cause to have at least a concern that some element of retaliation by Ministry staff may have been involved” in raising Mr. Khan’s suitability with the Law Society. The Hearing Panel noted that Mr. Khan “has a deep seated belief of a conspiracy against him and his family,” and cited LAT Vice-Chair Flude who also considered Mr. Khan’s conspiracy theory and found that it was unsupported by the facts. Ultimately, the Hearing Panel concluded that Mr. Khan was of good character, and affirmed his suitability for a paralegal licence.
[14] The Defendants deny Mr. Khan’s allegations against them. They claim that he was treated fairly and in good faith over many proceedings that involved Ministry staff who worked to address multiple regulatory contraventions attributed to Mr. Khan that led ultimately to convictions and other regulatory dispositions against him.
[15] The Defendants state that they acted fairly and reasonably in responding to Mr. Khan’s appeal to the LAT from the Director’s notice of refusal. The Director filed a detailed record with the LAT setting out the nature and extent of the concerns with Mr. Khan’s suitability, and shared all of the Ministry’s records on which he relied in support of his refusal. The LAT heard the appeal on October 16 and 18, 2006, and issued its decision on November 27, 2006 with detailed reasons affirming the Director’s refusal. Although Mr. Khan was entitled to appeal the LAT decision to Divisional Court under the HTA, he decided against doing so and the LAT decision is now final.
[16] The LAT decision followed an earlier decision of the Licence Suspension Appeal Board issued September 8, 1998, which upheld a similar decision by the Director that Mr. Khan was unsuitable to be registered as an MVIS mechanic. Mr. Khan applied for judicial review from the Board’s decision, which the Divisional Court dismissed; Khan v. Ontario (Director of Vehicle Inspection Standards) at para. 5.
[17] On this motion, Mr. Moore gave affidavit evidence to explain his intentions in raising Mr. Khan’s suitability as a paralegal with the Law Society. Having dealt with him in proceedings which concluded that Mr. Khan had made false statements and would not act with honesty and integrity, Mr. Moore was concerned about Mr. Khan’s competence to represent clients as a paralegal. In these particular circumstances, Mr. Moore felt that it was his duty as a lawyer to inform the Law Society of Mr. Khan’s regulatory history with the Ministry as it related to his ability to practice law as a paralegal. Mr. Moore claims to have shared his information with the Law Society in good faith, without any intention to pressure the Law Society to take any particular action, and he further states that Law Society staff solely decided the course of its investigation and proceedings. At some point unknown to Mr. Moore, the Law Society convened the Plaintiff’s suitability hearing before the Hearing Panel. Mr. Moore was not called to testify, and thus did not have any opportunity before the Hearing Panel to respond to the allegation that he or other Ministry staff had a vendetta or had retaliated against the Plaintiff, which the Hearing Panel noted in obiter (at para. 32) in its decision. As Ministry staff did not testify, the Hearing Panel only had Mr. Khan’s version of his dealings with the Ministry which the Defendants do not agree with. Mr. Moore flatly denies any vendetta against Mr. Khan or his family, and claims to have acted in good faith without malice, personal bias, vested interest or ill will against them, irrespective of the actions and allegations which they have taken or raised.
[18] In his affidavit, Director Hurst claims to have exercised his statutory powers in good faith, free from any discrimination or vested interest. He states that applications to the MVIS Program were accepted or denied based on their individual merits. He denies any ill-will or malice towards Mr. Khan or his family, and claims to have never held any personal bias, vested interest or vendetta against them. Director Hurst categorically rejects Mr. Khan’s allegations of a conspiracy at the Ministry to exclude him and his family from the MVIS Program.
Law of Summary Judgment
[19] The test for granting summary judgment is well-established.
[20] Under Rule 20.04(2)(a) of the Rules of Civil Procedure, the court shall grant summary judgment if satisfied that there is no genuine issue requiring a trial with respect to a claim or defence:
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.
[21] Pursuant to Rule 20.02(2), a responding party to a summary judgment motion cannot rest solely on allegations or denials in its pleadings, but must show specific facts in affidavit materials or other evidence setting out a genuine issue requiring a trial. Each side must “put its best foot forward” with respect to the existence or non-existence of material issues to be tried; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200 at paras. 26 and 33; aff’d 2014 ONCA 878. The motion record is to contain all of the evidence that the parties would present if the matter proceeded to trial. A party who fails to adduce such evidence risks losing.
[22] The court should first determine if there is a genuine issue requiring a trial based only on the evidence in the motion record, without using the fact-finding powers under Rule 20.04. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute in circumstances where summary judgment would be a timely, affordable and proportionate procedure.
[23] If there appears to be a genuine issue requiring a trial, the court should then determine if a trial can be avoided by using the fact-finding powers under Rule 20.04. Using these powers will not be contrary to the interests of justice if doing so will lead to a fair and just result and serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole; Hryniak at paras. 66 and 67.
[24] Where credibility is important on a summary judgment motion, the court must take great care to ensure that decontextualized affidavit and transcript evidence does not lead to substantive unfairness that likely would not arise during a full trial where the trial judge may determine credibility after seeing and hearing all the evidence; Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 at para. 44.
[25] A motion for partial summary judgment is a rare procedure for discrete issues that may be readily bifurcated from the main action and dealt with in an expeditious and cost effective manner; Butera v. Chown, Cairns LLP, 2017 ONCA 783 at para. 34; Mason v. Perras Mongenais, 2018 ONCA 978 at para. 22. Resolving an important claim against a key party “could significantly advance access to justice and be the most proportionate, timely and cost effective approach”; Hryniak at para. 60. That being said, it may not be in the interests of justice to grant partial summary judgment if other claims will proceed to trial in any event, as granting partial summary judgment will run the risk of duplicative proceedings or inconsistent facts; Ibid. Courts may also decline to grant partial summary judgment where it is possible that the trial judge “will develop a fuller appreciation of the relationships and the transactional context than the motions judge” which could give rise to a risk of inconsistent findings and substantive injustice; Baywood at para. 37; Butera at paras. 23-35.
The Limitations Act
[26] For the reasons that follow, I accept the Defendants’ argument that the Plaintiff’s claim is out of time and should be dismissed in its entirety as it was not commenced within the two (2) year statutory limitation period.
[27] The Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, as am., provides:
Basic limitation period
4 Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. 2002, c. 24, Sched. B, s. 4.
Discovery
5 (1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a). 2002, c. 24, Sched. B, s. 5 (1).
Presumption
(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1) (a) on the day the act or omission on which the claim is based took place, unless the contrary is proved. 2002, c. 24, Sched. B, s. 5 (2).
[28] For a claim to be discovered, it is unnecessary for a plaintiff to know all the facts that support the claim. Once a plaintiff knows that some damage has occurred, s/he has discovered the claim even if the full extent or the exact type of damage is unknown: Sampson v. Empire (Binbrook Estates), 2016 ONSC 5730 at paras. 37-38. The test under s. 5 of the Limitations Act, 2002 is objective and requires a determination of when a reasonable person in the claimant’s position with her abilities and circumstances would have been alerted to the elements of the claim: Reynolds v. Harwood, 2017 ONSC 4899 at para. 13.
[29] Mr. Khan’s cause of action broadly relates to two (2) matters.
[30] The first matter is the Director’s April 6, 2006 decision to deny Mr. Khan’s application for a MVIS licence and MVISM registration. Mr. Khan appealed the Director’s decision to the LAT which upheld the Director’s denial in a decision released on November 27, 2006. The Statement of Claim in this action was issued on July 4, 2013, over seven years from the date of the LAT decision and the Director’s decision to deny Mr. Khan’s application. As both decisions clearly identified the actions taken by the Director in refusing Mr. Khan’s licence and registration application, I readily find that Mr. Khan would have discovered his cause of action as early as April 6, 2006 when the Director released his decisions. Regardless, I have no hesitation in finding that Mr. Khan certainly would have discovered his claim by the time the LAT issued its decision on November 27, 2006.
[31] The second matter giving rise to Mr. Khan’s claim relates to Mr. Moore’s decision to advise the Law Society of his concern regarding Mr. Khan’s suitability to practice as a paralegal. By letter dated December 7, 2009, Mr. Moore shared his concerns with the Law Society. On February 26, 2010, the Law Society approved an investigation into the matter. On March 4, 2010, Investigator Kevan O’Grady wrote to Mr. Khan to provide with Mr. Moore’s complaint and commence the investigation. Mr. Khan responded to Investigator O’Grady in a letter dated March 8, 2010. Based on this, I have no hesitation in finding that the Plaintiff clearly knew of Mr. Moore’s complaint by March 8, 2010 and had discovered his claim by then, which clearly was more than two (2) years before he commenced this action on July 4, 2013.
[32] Mr. Khan suggests that the discoverability date for all of his allegations against the Defendants is March 5, 2013 when the Law Society Hearing Panel released its decision for his discipline hearing. I do not agree. As explained above, Mr. Khan clearly knew by November 27, 2006 of the outcome on his appeal to the LAT from the Director’s refusal which, along with Mr. Moore’s complaint to the Law Society of December 7, 2009, triggered the basis for his claim that the Defendants collectively engaged in a protracted vendetta against him (i.e., which he raised in his written response to Investigator O’Grady on March 8, 2010). Mr. Khan is an experienced and licenced paralegal who has practiced for over 15 years. He is quite familiar with legal process. I am satisfied that Mr. Khan could identify his losses and how to remedy them. There is nothing to suggest that Mr. Khan was unaware of the facts to his claim by November 27, 2006 when the LAT affirmed the Director’s decision, or the facts arising from Mr. Moore’s complaint to the Law Society by March 8, 2010. I also note my inability to accept Mr. Khan’s bald proposition that the Law Society’s investigation and discipline hearing processes could somehow have led to a tolling of the limitation period.
[33] I have no hesitation in finding that I am able to determine the limitations issue on the motion materials. Accordingly, I find that there is no genuine issue for trial. From the record, I find that the Statement of Claim was initiated outside the applicable two-year limitation period under s. 4 of the Limitations Act, 2002 as Mr. Khan clearly discovered his claims in this action by March 8, 2010, at the very latest. As his claim is barred by the limitation period, the entire action is dismissed.
Notice to the Crown under PACA
[34] Based on my finding that the claim is untimely, the action is dismissed. That being said, I accept the Defendants’ alternative submission that the claim against the Crown is barred by statute as Mr. Khan failed to serve the Crown with notice of the claim at least 60 days before the action was commenced as required under ss. 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c.P.27, as amended (“PACA”).
[35] Subsection 7(1) of the PACA provides:
Subject to subsection (3), except in the case of a counterclaim or claim by way of set-off, no action for a claim shall be commenced against the Crown unless the claimant has, at least sixty days before the commencement of the action, served on the Crown a notice of the claim containing sufficient particulars to identify the occasion out of which the claim arose, and the Attorney General may require such additional particulars as in his or her opinion are necessary to enable the claim to be investigated.
[36] It is clear from this provision that proper notice to the Crown is a necessary pre-condition that must be satisfied before this Court has jurisdiction to entertain an action against the Crown; Beardsley v. Ontario, [2001] O.J. No. 4574 (C.A.) at para. 10. As this notice requirement goes to a jurisdictional matter, Mr. Khan has the onus to show that the Court has jurisdiction to entertain his claim: Sidhu v. Her Majesty the Queen, 2012 ONSC 6993 at para. 40. Evidence as to whether or not notice was properly given is necessary; Sidhu at para 42. Failure to satisfy the notice provision under ss.7(1) of PACA renders an action against the Crown a nullity, and is an independent ground for dismissing an action against the Crown; Toronto (City) v. Longbranch Child Care, 2011 ONSC 548 at paras. 33-38.
[37] Mr. Khan’s motion record includes a copy of his letter to Mr. Moore which is dated August 20, 2013 (i.e., approximately 1½ months after the Statement of Claim was issued) and is purported to give notice of his claim. While the letter is appended to Mr. Khan’s affidavit sworn October 16, 2017 and is listed as a document that he intends to use on these motions, his affidavit offers no explanation as to when or how his letter was delivered. During oral submissions, Mr. Khan stated that the letter contains a typographical error as its date should correctly read “August 20, 2012” when he claims to have delivered the letter to Mr. Moore (i.e., on or about August 20, 2012, being one year prior to the date that actually is printed on the letter). He further argued that the Crown received adequate notice of his claim when it was served on Mr. Moore, who is counsel for the Crown with the Legal Services Branch at the Ministry of Transportation, which is an office of the Ministry of the Attorney General of Ontario.
[38] In support of their cross-motion, the Defendants relied on an affidavit by Mr. Moore who states that he never received Mr. Khan’s August 20, 2013 letter. He further states that Mr. Khan did not give any notice to the Crown before serving the claim.
[39] As Mr. Khan did not provide a supporting affidavit to address the PACA notice issue, the Defendants take the position that there is no actual evidence to validate delivery of his letter that purports to give PACA notice to the Crown. The Defendants also claim that Mr. Khan never actually sent the letter, based on their own inquiries and evidence. They further invite the court to not give effect to the letter, as it is dated after the claim against the Crown was issued. It is trite that notice given after an action is commenced is not valid notice; Beardsley v. Ontario, [2001] O.J. No. 4574 (C.A.) at paras. 8-12. Moreover, the Defendants argue that the letter should be viewed with healthy skepticism as there is no confirmatory record (i.e., fax cover sheet, courier confirmation, email confirmation of receipt, etc.) accompanying it to suggest that the letter actually had been delivered. Additionally, as the letter only discloses a potential claim against Mr. Moore without advising of a pending claim against the Crown itself, the Defendants further submit that the letter is not proper PACA notice; Toronto (City) at paras. 37, 42 and 45.
[40] From the evidentiary record on this motion, I find that Mr. Khan did not deliver notice to the Crown to satisfy the notice requirement under PACA. The only evidence on this notice issue is the Defendants’ supporting affidavit which indicates that the Crown did not receive PACA notice from Mr. Khan. In my view, there is no compelling evidence that Mr. Khan actually prepared and delivered his letter dated August 20, 2013 to Mr. Moore one year prior to date printed on the document, as he argued in his submissions. The burden of persuasion rested with Mr. Khan to establish that he took reasonable steps to deliver valid PACA notice by tendering the evidence he needed to demonstrate this appropriately; Sidhu at para. 42. He was obliged to put his best foot forward. His failure to do so was fatal. For these reasons, I find that the Crown did not receive notice of Mr. Khan’s claim under ss. 7(1) of PACA. As such, I accept that the claim against the Crown is a nullity and should be dismissed.
The Charter Claim Against the Personally-Named Defendants
[41] I also accept that the Charter claims for damages against the personally-named Defendants are non-actionable against them and should be dismissed.
[42] The personally-named Defendants submit that the action against them is wholly framed as a claim for damages under ss. 24(1) of the Charter based on alleged breaches of Mr. Khan’s rights under ss. 7, 12 and 15(1) of the Charter. Accordingly, they submit that the Charter claims against them should be struck as claims for Charter breaches are actionable only against the state.
[43] Owing to the constitutional nature of Charter claims, which are distinct from private law claims, actions seeking damages for Charter breaches are actionable only against the state, namely the Crown in this case:
The nature of the remedy is to require the state (or society writ large) to compensate an individual for breaches of the individual’s constitutional rights. An action for public law damages – including constitutional damages – lies against the state and not against individual actors. Actions against individual actors should be pursued in accordance with existing causes of action.
Ward v. Vancouver (City), 2010 SCC 7 at para. 22; see also Elmardy v. Toronto Police Services Board, 2017 ONSC 2074 (Div.Ct.) at para. 37. In the Canadian constitutional context, an action for public law damages is not a private law action in the nature of a tort claim for which the state is vicariously liable, but rather a public law action directly against the state for which the state is primarily liable; Ward at para. 22.
[44] Having reviewed carefully the Statement of Claim, which blends its prayer for relief within various paragraphs found throughout the body of the claim, and from Mr. Khan’s lengthy and considered submissions, I accept that his entire claim is wholly framed as Charter damages under ss. 24(1) of the Charter for alleged breaches of his rights under ss.7, 12 and 15(1) of the Charter. Based on the reasoning in Ward and Elmardy, the only defendant against whom his claim for Charter damages is viable is the Crown. It follows that the Statement of Claim does not advance an actionable claim against either of the personally-named Defendants, Patrick Moore and Peter Hurst. Accordingly, I accept that the Charter damages claim against them is not viable and should be dismissed.
The Defendant’s Motion for Summary Judgment
[45] The Defendants also seek summary judgment to dismiss the entire action claiming that it is unsupported by the evidence. I would not have accepted this submission. As the action is dismissed for being untimely, I will address briefly this aspect of their motion.
[46] While the evidence before the court is conflicting, I find that Mr. Khan’s claim is not unsupported by any evidence. There is clearly some evidence that Mr. Khan and other members of his family were unsuccessful with some of their applications under the MVIS Program. He relies upon this to infer that he was the subject of a vendetta fuelled by discrimination and other high-handed or cruel treatment that ground his claim damages arising from breaches of his rights under ss. 7, 12 and 15(1) of the Charter. He raises various allegations against the Defendants that they unjustly targeted him and acted against him in bad faith after he pursued legal recourse against them. In particular, he relies forcefully on the comments by the Law Society Hearing Panel, which commented on his allegation that he had been subjected to a vendetta by Ministry staff.
[47] The Defendants deny these allegations and claim to have treated Mr. Khan fairly and responsibly in their many dealings with him over the years. They point to his record of misconduct and non-compliance as a legitimate basis for the Director’s decision to refuse his application for a licence and registration, and note that the LAT upheld this decision on appeal following a multi-day hearing that heard evidence and considered a substantial evidentiary record. While the Defendants’ evidence and submissions clearly contradict Mr. Khan’s evidence and account of events, it does not necessarily serve to somehow override the evidence which is capable of supporting his claim.
[48] To make a determination of this claim, the court would be required to explore all of the evidence and make factual findings as to the various actions and intentions of the parties. In the course of doing so, the court would need to make important findings of credibility within the overall context of the entire factual matrix for this action. Much of this would involve credibility assessments of the parties and other witnesses with respect to their involvement with particular events, and findings regarding their impact on other facts that collectively form the underlying basis for Mr. Khan’s claim. Without going into further detail, it is quite clear from the conflicting evidence on this motion that the credibility and reliability of the parties are material issues that would need to be addressed in the context of the broader narrative of this case in order to arrive at a proper determination of this claim. This is particularly true given the diametrically conflicting evidence and irreconcilable positions taken by Mr. Khan and the Defendants, respectively, on key points in the narrative to this matter. In the circumstances, I find that the credibility issues are of the type contemplated by Baywood (at para. 44) that are problematic to address by applying the summary judgment process. These are all genuine issues that would have required the fullness of a trial.
[49] I also would have found this to not be a case for exercising my fact-finding powers at a mini-trial. Based on the evidentiary record, it is clear that the facts to this case are heavily interwoven into a lengthy multi-year narrative that grounds the claim. Given the duration of the relevant period to the claim, and the extensive nature of the evidence that would need to be canvassed from a number of witnesses, it is my view that the most appropriate mechanism to efficiently and effectively determine this dispute would be a trial.
[50] For all of these reasons, I would have dismissed this aspect of the Defendants’ motion for summary judgment.
The Plaintiff’s Motion for Partial Summary Judgment
[51] I will comment on Mr. Khan’s motion for partial summary judgment given the efforts by the parties to address it.
[52] Mr. Khan’s claim for partial summary judgment is based on his loss of earnings claim, which is grounded on his allegation that the Defendants improperly denied his application for a licence and registration under the MVIS Program. While the underlying legal basis for this part of his claim was not clearly or fully articulated by Mr. Khan, I understand from his submissions that it is based on his assertion that the Defendants collectively engaged in a protracted vendetta to refuse his application in a high-handed and discriminatory fashion that was contrary to ss. 7, 12 and 15(1) of the Charter. The Defendants deny any impropriety, and claim to have acted fairly, reasonably and in good faith in all of their various dealings with Mr. Khan, and in their dealings with his family members who also interacted with the MVIS Program and the Ministry.
[53] Having carefully considered the record and submissions, I find that this would not have been a case for granting Mr. Khan partial summary judgment. To determine his claim for lost earnings as he framed it on this motion, it would be necessary to make findings as to whether the Defendants acted maliciously or in good faith by refusing him a licence and registration that prevented him from working under the MVIS Program and earning income. In similar fashion to my reasons for denying the Defendants’ summary judgment motion to dismiss the action for being unsupported by the evidence, I find that making a determination on this aspect of Mr. Khan’s claim would necessarily require important findings of credibility to be made within the context of the entire factual matrix for this action. In my view, this would be necessary to decide whether the Defendants engaged in the vendetta that Mr. Khan relies upon to ground his Charter damages claim. As both sides to this action have adduced diametrically conflicting evidence and taken irreconcilable positions on many facts that are interwoven into the broader narrative of this case, it is quite clear that the credibility and motives of the parties and other witnesses are key issues that would need to be addressed upon hearing all of the evidence at trial. Accordingly, I conclude that the credibility issues raise genuine issues for trial and could not be addressed appropriately in the summary judgment process; Baywood at para. 44.
[54] Having found genuine issues requiring a trial, I also would have found this to not be a case for exercising my fact-finding powers at a mini-trial. Partial summary judgment would not have disposed of Mr. Khan’s entire claim, as the remaining claims would have proceeded to trial. From the record, it is readily apparent that the issues and evidence in this case are heavily interwoven into a lengthy and conflicting narrative, which would not lead to the kinds of procedural efficiencies that otherwise would make partial summary judgment appropriate. Instead, it is my view that a mini-trial would have entailed a significant risk of duplicative proceedings and inconsistent findings that would not be appropriate for summary judgment; Hryniak at para. 60; Baywood at para. 37.
[55] Based on the foregoing, I would have dismissed the Plaintiff’s motion for partial summary judgment.
Conclusion
[56] For the reasons given above, the action is dismissed as being untimely.
[57] If the issues of costs cannot be settled by the parties, I will entertain written submissions. The Defendants may deliver cost submissions of up to three pages (excluding any bill of costs, offer to settle, or authorities) within 15 days from the date of these reasons. The Plaintiff may then deliver his cost submission on the same terms within 15 days thereafter. No reply submissions may be delivered without leave.
Doi J.
DATE: May 3, 2019