COURT FILE NO.: 1740/19

DATE: 2109-08-23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

OMAR SHABBIR KHAN

Plaintiff

– and –

LAW SOCIETY OF ONTARIO, LAW SOCIETY TRIBUNAL, DAVID WRIGHT, RAJ ANAND, MARGARET LEIGHTON, BARBARA LASKIN, DEBORAH MCPHADDEN, GLENN STUART, LESLIE MAUNDER, NINA IWANOWICH, DOCTOR MICHAEL COLLETON, MICHAEL COLLETON MEDICINE PROFESSIONAL CORPORATION, LEGAL AID ONTARIO, VICTOR MATANOVIC, HAMILTON POLICE SERVICES AND KEVIN DHINSA

Defendants

Omar Khan, Self-represented

Paul Le Vay and Tiffany O’Hearn Davies, for the Defendants, Law Society of Ontario, Deborah McPhadden, Glenn Stuart, Leslie Maunder and Nina Iwanowich

Gillian P. Kerr and Renee I. Zatzman for the Defendants, Dr. Michael Colleton and Michael Colleton Medicine Professional Corporation.

Colleen E. Robertshaw, for the Defendants, Hamilton Police Services Board and Kevin Dhinsa

Gideon C. Forrest and Mitch Stephenson for the Defendant Legal Aid Ontario and Victor Matanovic

Susan M. Sack, for the defendants, Law Society Tribunal, David Wright, Raj Anand, Margaret Leighton and Barbara Laskin

HEARD: In writing

Conlan J.

REASONS FOR DECISION

RULE 2.1 MOTION

I. Introduction

The Rule

[1] Under Rule 2.1.01(1) of the Rules of Civil Procedure, "[t]he court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court".

[2] Rule 2.1 is a powerful tool but also a rather blunt one. It ought not to be resorted to lightly. It is not meant to extinguish claims that merely appear to be weak. Nor is it intended to terminate actions that are simply the subject of poor pleading draftsmanship. Khan v. Krylov & Company LLP, 2017 ONCA 625; Collins v. Ontario, 2017 ONCA 317; Asghar v. Alon, 2015 ONSC 7823 (S.C.J.).

[3] Any one of the adjectives found in the Rule will suffice to ground a stay or dismissal of the proceeding; there is no need to prove more than one. The action is frivolous, or it is vexatious, or it constitutes an abuse of process; more than one may be found, but any one is enough to dismiss the action.

[4] The civil standard of proof applies, that is, proof on a balance of probabilities. Where, as here, the request to dismiss the proceeding has come from a defendant (or more than one defendant), that requesting party bears the onus of proof.

[5] The words used in the Rule ought to be given their plain, ordinary meaning. A frivolous proceeding is one that is undeserving of serious attention. It serves no serious or valuable purpose.

[6] A vexatious proceeding is similar to but not quite the same thing as a frivolous one. Rather, it is most often brought to annoy or frustrate the other side rather than to seek redress for a legitimate complaint.

[7] A proceeding that amounts to an abuse of process is one that undermines the integrity of the justice system. A classic illustration of the concept is a proceeding brought in violation of an existing court order. In that circumstance, it may not be able to be said that the proceeding, on its face, is frivolous or vexatious, but it is likely that it is deserving of summary dismissal as to allow otherwise would ignore the court order and bruise the administration of justice.

[8] Before turning to an outline of the chronology of events in this matter thus far, something should be said about the entire design and purpose of Rule 2.1. The procedure should be fair but swift. Efficiency is key. The request is not to be allowed to evolve into a mini-motion for summary judgment or a quasi-Rule 21 motion. Subrule (3) of 2.1.01 is the default procedure to be followed in the vast majority of cases, however, the overarching motto should be to "get on with it".

[9] Frankly, a court could not be faulted for growing suspicious of a Rule 2.1 request that is accompanied by dense submissions and a seemingly endless barrage of case law. One who has to work that hard to convince a court to invoke this power is likely pushing uphill.

The Background

[10] Here is how we got to this point.

The Statement of Claim

[11] On April 15, 2019, the self-represented Plaintiff, Omar Shabbir Khan ("Khan"), had a Statement of Claim issued in Milton, Ontario. There are sixteen Defendants. The pleading is 74 pages in length, 213 paragraphs. It includes an Index, some 76 footnotes, and numerous references to evidence, online documents, legislation, and case law.

[12] Succinctly put, Khan was a practicing lawyer in Ontario. He was the subject of a complaint to the Law Society of Ontario ("LSO"), as it is now known, regarding alleged billing irregularities and alleged forged documents. In September 2018, upon making a finding that Khan had committed professional misconduct, the LSO revoked Khan’s licence to practice law.

[13] The sixteen Defendants are: (i) the LSO, (ii) the Law Society Tribunal, which this Court will call the "LST" and which Khan describes in the pleading as the body responsible for disciplinary and regulatory matters, (iii) David Wright ("Wright"), described by Khan as the Chair of the LST, (iv) Raj Anand ("Anand"), described by Khan as the Vice-Chair of the LST, (v) Margaret Leighton ("Leighton"), described by Khan as a member of the LST panel that revoked his licence, (vi) Barbara Laskin ("Laskin"), described by Khan as a member of the LST panel that revoked his licence, (vii) Deborah McPhadden ("McPhadden"), described by Khan as being a manager of some sort for LSO disciplinary matters, (viii) Glenn Stuart ("Stuart"), described by Khan as the LSO’s prosecutor for Khan’s disciplinary proceeding, (ix) Leslie Maunder ("Maunder"), described by Khan as Stuart’s predecessor on the file, (x) Nina Iwanowich ("Iwanowich"), described by Khan as the LSO’s investigator assigned to Khan’s disciplinary case, (xi) Doctor Michael Colleton ("Colleton"), described by Khan as a psychiatrist who provided to the LSO evidence regarding Khan’s mental health, evidence which Khan says was detrimental to his cause in the context of the disciplinary proceeding, (xii) Michael Colleton Medicine Professional Corporation, which this Court will call "Colleton Corporation" and which Khan describes as Colleton’s business, (xiii) Legal Aid Ontario ("LAO"), the complainant in Khan’s disciplinary case, (xiv) Victor Matanovic ("Matanovic"), described by Khan as LAO’s investigator in its review of Khan’s activities, (xv) Hamilton Police Services ("Hamilton Police"), which entity Khan says "criminally investigated and charged [him] at the behest of the LAO and possibly the LSO" (paragraph 18 of the Claim), and, finally, (xvi) Kevin Dhinsa ("Dhinsa"), then a detective with Hamilton Police.

[14] The prayer for relief is outlined in the first nine pages of the Statement of Claim.

[15] "Damages at large", special damages in the amount of $160,057.69, exemplary and aggravated damages, punitive damages, interest, and costs are sought against the LSO, the LST, Wright, Anand, Leighton, Laskin, McPhadden, Stuart, Maunder, and Iwanowich. The alleged causes of action pleaded against those Defendants are infringement of the Law Society Act, negligent investigation, entrapment, deceit, "malfeasance in public power", abuse of power, abuse of process, infringement of Khan’s Charter rights, infringement of the Ontario Human Rights Code ("OHRC") and other legislation in Ontario dealing with persons with disabilities ("disability legislation"), negligence, infringement of the Rules of Professional Conduct, infringement of the Freedom of Information and Protection of Privacy Act ("FIPPA"), discrimination, breach of ethics, "professional malpractice", defamation, and intentional infliction of mental suffering.

[16] As against Colleton and Colleton Corporation, Khan seeks general damages, "damages at large", unspecified special damages, exemplary and aggravated damages, punitive damages, interest, and costs. The alleged causes of action pleaded against those Defendants are "professional malpractice", negligence, unethical conduct, defamation, and intentional infliction of mental suffering.

[17] As against LAO, Matanovic, Hamilton Police, and Dhinsa, Khan claims "damages at large", exemplary and aggravated damages, punitive damages, interest, and costs. The alleged causes of action pleaded against those Defendants are infringement of Khan’s Charter rights, malicious prosecution, "malfeasance in public power", negligent investigation, entrapment, deceit, abuse of power, abuse of process, intentional infliction of mental suffering, violation of solicitor-client privilege, infringement of the FIPPA, infringement of the OHRC and disability legislation, negligence, and defamation.

[18] To more fully grasp the nature of Khan’s passionate Claim, the reader should have reference to the following paragraphs, 19 through 31, taken from his pleading (all under the heading "Overview of Claim" at pages 13 through 16):

19. Mr. Khan has brought this Claim seeking vindication from the Defendant’s vilification and is not advanced in retaliation. Essentially, this is a tort Claim involving at least three Provincial state actors, a quasi-judicial Tribunal and its Panel Members, public lawyers, public servants and police officers, who all integrated with one another, in one way or another, to negligently investigate and prosecute Mr. Khan, with intentional or callous disregard to the irreparable harm their conduct would have on Mr. Khan’s: i) career as a capable and respected community lawyer; ii) livelihood; iii) community who lost a community stalwart; and iv) physical, mental and emotional wellbeing along with his dignity.

20. The Claim illustrates how at the time of the investigations, Mr. Kahn was oblivious to his undiagnosed and untreated mental disabilities. Upon discovery of same, Mr. Khan relied upon the LSO’s MH Strategy and the Code and asserted his human rights. The Defendants disbelieved Mr. Khan and his comprehensive medical evidence, and thereafter in their own individual manner stigmatized and shunned Mr. Khan by alleging he was a malingerer. In doing so, the Defendants violated his human rights.

21. The Claim also outlines that the Defendants were prejudicial against Mr. Khan, as exhibited by the highly unusual investigatory and prosecutorial decisions actions taken by them, and the Defendants’ decision to willfully disregard Mr. Khan’s human rights and privacy rights, in its pursuit of $13,500 in (at its worst) overbillings to LAO over a 4-year period that Mr. Khan fully repaid to LAO.

22. The Claim further illuminates Mr. Khan’s assertion that the Defendants’ intentionally or recklessly harmed him by discussing LAO’s extraordinary decision to offer Mr. Khan a full-time staff lawyer position, while it concurrently was actively investigating him for billing irregularities from months prior. LAO intentionally or recklessly deprived Mr. Khan the opportunity to explain or resolve LAO’s billing concerns before he accepted their job offer and permanently closed his law practice. At its kindest, the LAO lured Mr. Khan out of his successful private practice to his prejudice.

23. The Claim further underscores the Defendants’ peculiar decision to squander considerable public resources to investigate Mr. Khan for what began as a $280.00 overbilling criminal investigation. The LAO, HPS and LSO misused at least five years of combined scare investigative resources to scrutinize Mr. Khan for third-party billing irregularities that ultimately amounts to $13,500 of overbilling over a four-year audit period (or $3,375 per year). Mr. Khan and his secretary could not locate the source third-party invoices due to the permanent closure of his law office, in which case the documents were not properly secured or filed. Commonly, on office closure a lawyer’s file is either returned to clients, is misplaced or is shredded. None of this registered with the LAO, who withheld from Mr. Khan its decision to audit him, and refused to give him further extensions to respond to a comprehensive 4-year 100 account audit, while being a newly hired, in training full-time staff lawyer.

24. The Claim moreover outlines the Defendants’ intentional or reckless defamatory conduct. The Defendants publicly revealed details pertaining to Mr. Khan’s: i) arrest; ii) interlocutory injunction; iii) his disbarment; iv) his designation as person with mental disabilities; and v) confidential and sensitive details of his medical diagnosis and actual excerpts from his medical reports (which is a deemed invasion of privacy) in the LSO Tribunal Decisions. In fact, the HPS’ media bulletin of Mr. Khan’s arrest was deliberately defamatory in nature, since police media bulletins are typically only reserved for matters involving public safety, and not for matters involving a $13,500 overbilling matter for which Mr. Khan was released on his own recognizance, and ultimately for which he was sentenced to a conditional discharge. Thus, the HPS’ media bulletin of Mr. Khan was discriminatory and a violation of his human rights.

25. The Claim elucidates the Defendant’s misconduct of unjustly advancing bald accusations of malingering to Mr. Khan’s severe prejudice in the regulatory proceedings, rendering the entire process biased and unfair. The LSO Tribunal itself pervasively committed ableism (as noted in their Conduct and Penalty Decisions) by casting aspersions of Mr. Khan’s disabilities and, at one point, crossed acceptable boundaries when it stated that Mr. Khan’s disabilities were not so serious since he was able to operate a successful law practice. The LSO Tribunal are not medical practitioners.

26. Thus, the Claim outlines the Defendants’ clear bias, negligent investigatory and regulatory conduct, defamatory conduct, discrimination and stigmatization of Mr. Kahn as a person with disabilities, all of which individually or cumulatively satisfies the test for prima facie discrimination, in violation of Mr. Khan’s human rights, his dignity and self-respect.

27. The Claim also illustrates the ongoing and continuous invasions of privacy and confidentiality, such as: i) the LAO and HPS violations of solicitor-client privilege in their grossly negligent investigations; ii) Mr. Khan being ordered to undergo IME despite the LSO Tribunal lacking any jurisdiction to make such an Order; iii) the LSO and its lawyers violated Mr. Khan’s privacy and human rights by discussing and disseminating his sensitive and confidential medial reports to unauthorized third parties; and iv) the LSO Tribunal discussing and releasing sensitive and confidential excerpts of medical reports in their Decisions and Reasons. These remarkable acts of gross negligence and reckless disregard to Mr. Khan’s privacy fall far short of the ethical standards public lawyers and servants are bound by in their service to the public.

28. The Claim also uncovers how the LSO Defendants retained their "hired gun experts", the Dr. Colleton Defendants, who for $10,000.00 prepared an unprofessional and unethical 30-page paper critique dated May 25, 2017 of Mr. Khan’s medical reports without once meeting Mr. Khan or having his prior written revocable consent as an examinee. Unsurprisingly, the Dr. Colleton Defendants came to the extraordinary (and disproven) conclusion that Mr. Kahn could be malingering, thus enabling the LSO to deny to Mr. Khan any human rights considerations. The said IME report also had the prejudicial impact of biasing the LSO Tribunal against Mr. Khan, since they read the purported IME report. Therefore, a primary feature of the Claim are the numerous instances involving illegitimate invasions of privacy.

29. A further noteworthy feature of the Claim and the irregular conduct giving rise to the reasonable apprehension of bias is illustrated in the LSO Tribunal’s breach of its undertaking of May 7, 2018 (at the Penalty hearing) where the LSO Tribunal was supposed to amend its erroneous Conduct Decision of any reference to the evidence that Stuart and the LSO mislead the Panel on – namely the false submission that Mr. Khan had uploaded false invoices in 2011 and 2013 when Stuart and LSO admitted on May 7, 2018 that he had not. The erroneous factual finding was crucial to the Panel’s adverse creditability assessment of Mr. Khan’s defence and the reason the Panel undermined Dr. Gojer’s forensic psychiatric report. Despite making a clear and unequivocal undertaking to amend the Conduct Decision, the Panel never did, and it remains in its iniquitous state.

30. Summarily, the Claim advances that the Defendants: a) breached their ethical duties as public servants; b) breached their ethical duties as public lawyers; c) intentionally or recklessly harmed Mr. Khan’s career and his reputation; d) violated Mr. Khan’s human rights; e) violated Mr. Khan’s privacy rights; f) violated Mr. Khan’s Charter rights (in terms of sections 8 and 24); g) committed acts of professional malpractice, and h) committed conduct that gives rise to a reasonable apprehension of bias.

31. Therefore, Mr. Khan states and the fact is that the Defendants’ conduct make them liable to Mr. Khan in the form of general, special, aggravated, exemplary and punitive damages.

[Footnotes omitted]

[19] Finally, paragraph 212 of the Statement of Claim is instructive, under the heading "Vindication":

212. Mr. Khan states and the fact is that is this not a claim for vengeance or retaliation. Rather, this is a Claim of vindication and to ensure accountability and transparency in our institutions, and our public lawyers and servants entrusted to serve for the public good. Mr. Khan’s Claim is inspired by these words of the Supreme Court of Canada: "there is a fundamental importance to open, forceful criticism of our public institutions" and that a lawyer "must feel free to act and speak without inhibition and with courage when the circumstances demand it."

[Footnotes omitted]

The Defences

[20] Statements of Defence have not been filed, but these Notices of Intent to Defend have been delivered: May 2, 2019 – Colleton and Colleton Corporation, May 6, 2019 – Hamilton Police and Dhinsa, May 8, 2019 – the LSO, McPhadden, Stuart, Maunder, and Iwanowich, May 10, 2019 – LAO, May 10, 2019 – the LST, Wright, Anand, Leighton, and Laskin, and May 31, 2019 – LAO and Matanovic.

The Rule 2.1 Requests

[21] By letter dated May 30, 2019 addressed to the Superior Court of Justice at Milton, counsel for the LST, Wright, Anand, Leighton, and Laskin requested that Khan’s Claim be dismissed as against those Defendants under Rule 2.1.01. Specifically, it was alleged that the Claim (i) is an improper collateral attack on the LST’s decisions, which are under appeal and which are also subject to judicial review, and (ii) is also barred by judicial immunity.

[22] By letter dated May 30, 2019 addressed to the Court Registrar at Milton, counsel for LAO and Matanovic requested that Khan’s Claim be dismissed as against those Defendants under Rule 2.1.01. Specifically, it was alleged that the Claim (i) is frivolous and/or vexatious in that it is totally devoid of any merit, and further (ii) it is abusive because it violates section 138 of the Courts of Justice Act, that being the prohibition against initiating a multiplicity of proceedings.

[23] On the latter point, reference was made to paragraph 16 of the Statement of Claim:

16. The Defendant, LAO, is a crown corporation incorporated pursuant to the laws of Ontario, and answers to the Ministry of the Attorney General of Ontario. Mr. Khan currently has a wrongful dismissal litigation matter against the LAO in the Ontario Superior Court of Ontario in Hamilton, having court file number 16-57515.

[24] By letter dated June 3, 2019 addressed to the Court Registrar at Milton, counsel for Colleton and Colleton Corporation requested that Khan’s Claim be dismissed as against those Defendants under Rule 2.1.01. Specifically, it was alleged that there can be no valid cause of action against those Defendants because Colleton was retained by the LSO to prepare an expert report to respond to Khan’s request to set aside his interlocutory suspension, and thus, Colleton is protected by absolute privilege.

[25] By letter dated June 3, 2019 addressed to the Court Registrar at Milton, counsel for Hamilton Police and Dhinsa requested that Khan’s Claim be dismissed as against those Defendants under Rule 2.1.01. Specifically, it was alleged that there can be no valid cause of action against those Defendants because the criminal proceeding ended with Khan pleading guilty and being sentenced, as noted in the Claim itself.

[26] In a handwritten Endorsement dated June 4, 2019, this Court directed that the normal process under subrule (3) of Rule 2.1.01 shall be followed in this case.

[27] In a handwritten Endorsement dated June 10, 2019, this Court, at the request of the Defendants named above, directed that the action be stayed under section 106 of the Courts of Justice Act, pending a determination of the Rule 2.1 requests. In addition, the Court replied to an enquiry made by Khan with regard to the permissible length of his submissions on the Rule 2.1 requests.

[28] In a handwritten Endorsement dated June 25, 2019, this Court (i) provided further directions to the Registrar, and (ii) invited written submissions from the Defendants named above in response to what Khan had already delivered, and (iii) granted to Khan the ability to file something further regarding correspondence from counsel for Colleton and Colleton Corporation that Khan had not been provided with earlier, and (iv) asked all parties whether I should seize myself of the matter even though I was on vacation for the months of July and August 2019 (those who replied urged that I do so).

[29] Khan’s written submissions, dated June 18, 2019 and July 19, 2019, make several points including that (i) there is a relatively high legal test that must be met before dismissing an action under Rule 2.1.01, (ii) some of the Defendants improperly referred the Court in their initial requests for dismissal to inadmissible things, such as Khan’s appeal of the LST’s final decisions and his ongoing proceeding in the Divisional Court and his ongoing wrongful dismissal proceeding against LAO out of Hamilton, and (iii) the Defendants are collaborating together to try to stifle Khan’s right to be heard, abuse the process and unreasonably delay the prosecution of his action. That is not an exhaustive list of Khan’s arguments but a good illustration of his overall position.

[30] It should be noted that, in letters to the Court dated June 28 and July 4, 2019, respectively, counsel for the LST and related Defendants and counsel for Hamilton Police and Dhinsa challenged Khan’s assertions that the said Defendants had referred the Court to anything that is inadmissible.

[31] Finally, in separate written materials both dated July 5, 2019, counsel for LAO and Matanovic and counsel for Colleton and Colleton Corporation made further written submissions in support of their Rule 2.1 requests. The crux of those submissions did not change from the initial requests that had been filed with the Court.

[32] Besides what has been outlined above, no other named Defendant has made a Rule 2.1 request, and no Defendant who has made such a request has filed any additional submissions.

II. Analysis and Decision

The LST-Related Defendants

[33] The Claim is dismissed as against the LST, Wright, Anand, Leighton and Laskin.

[34] The bottom line is that Khan, as is his right, vociferously disagrees with the LST’s decisions to find that he engaged in professional misconduct and to revoke his licence to practice law.

[35] When one reviews the Statement of Claim in its entirety, as this Court has done multiple times, it becomes abundantly clear that it is the decisions of the LST themselves, their content, their discussion of Khan’s mental health difficulties, and the way in which the panel conducted the hearings that have evoked such a passionate statement of objection by Khan.

[36] This is understandable. It happens, not infrequently in the minds of some commentators, in our justice system. A litigant appears in a courtroom and walks out at the end of the day with a complete sense of having been wronged by the result, by the reasons given by the judicial officer, and by the manner in which the litigant was treated throughout the process.

[37] What does not happen is to allow disappointed litigants to then sue the judicial officer, the court, and maybe even the staff. It should be no different for these Defendants.

[38] The LST is an independent adjudicative tribunal, a quasi-judicial body, within the LSO. Its decisions, including the reasons for them, and its conduct, in terms of adherence to procedural fairness and natural justice, are susceptible to review, both internally on appeal and then on application for judicial review.

[39] In his own pleading, Khan refers to the LST’s decisions, even going so far as to provide the citations for them (paragraph 25 and footnotes 12 and 13 of the Statement of Claim). He also confirms that he has appealed the decisions, which review process is ongoing (paragraph 52).

[40] I have reviewed Khan’s Notice of Appeal to the LST’s Appeal Division, filed October 24, 2018 in File No. 18A-016, as must be done in order to properly adjudicate the Rule 2.1 requests. It is very lengthy. It is strikingly similar in its allegations to the Statement of Claim.

[41] In the face of that Notice of Appeal, which can be amended if Khan feels that it does not sufficiently cover his complaints, never mind the outstanding Amended Notice of Application to Divisional Court for Judicial Review ("Application"), Khan’s Statement of Claim as against these Defendants is clearly an abuse of the process of the court and must be dismissed under Rule 2.1.01(1).

[42] It is unhelpful to Khan, and unnecessary in these circumstances, to engage in a lengthy treatise about judicial immunity and the like. This is the penultimate message: you do not sue an adjudicative tribunal and its members because you disagree with the procedure and the result, especially when you are already appealing.

[43] One final comment – the Application referred to above I have also reviewed, as I must. Khan is applying to the Divisional Court to overturn a decision of a single member of the LST’s Appeal Division, which decision denied Khan’s request to stay the LST’s decisions pending the Appeal. That Application demonstrates that Khan is well aware of his legal rights to challenge LST decisions; he should focus his energies on what is already outstanding.

The LAO-Related Defendants

[44] The Claim is dismissed as against LAO and Matanovic.

[45] At paragraph 16 of his Statement of Claim, Khan refers to his ongoing action against LAO in the Superior Court of Justice, Hamilton. Having raised the matter himself, Khan cannot now complain about this Court having reference to the Hamilton pleading in order to properly adjudicate the within Rule 2.1 request.

[46] The Hamilton pleading (Court File No. 16-57515, commenced in May 2016) explicitly refers, at length, to Matanovic and to LAO’s complaint to the LSO about Khan’s alleged financial misdeeds.

[47] The Hamilton pleading (31 pages, 176 paragraphs in length, seeking well in excess of two million dollars in damages, including aggravated and punitive damages) is strikingly similar, in both its factual allegations and the specific alleged causes of action relied upon, to the Statement of Claim issued out of Milton.

[48] Although it is true that Matanovic is not named as an individual Defendant in the Hamilton action, and although not every single alleged cause of action pleaded in the Milton Claim is included in the Hamilton pleading, justice is much better served by permitting Khan to pursue his amendment of pleading rights, which are relatively generous, especially at this stage of the Hamilton action, than to allow two civil proceedings based on the identical factual matrix to run concurrently in two different judicial centres.

[49] The latter amounts to an abuse of the process of the court: Rule 2.1.01(1).

The Colleton Defendants

[50] The Claim is dismissed as against Colleton and Colleton Corporation.

[51] It is frivolous in that it stands no chance of success and is not worthy of serious attention at even the earliest of stages of the proceeding.

[52] It also undermines the integrity of the justice system in that it runs afoul of the doctrine of absolute privilege, and hence, it amounts to an abuse of the process of the court: Rule 2.1.01(1).

[53] Remember, the alleged causes of action pleaded against these Defendants are "professional malpractice", negligence, unethical conduct, defamation, and intentional infliction of mental suffering.

[54] It is undisputed that Colleton was retained by the LSO as an expert witness, and that Colleton was asked to comment on a medical report being relied upon by Khan in support of his request to lift his interim suspension from practicing law, and that Khan’s motion to set aside the said suspension was never argued, and that the reasons of the LST in support of its finding of professional misconduct, while mentioning Dr. Gojer, say nothing whatsoever about Colleton or Colleton’s evidence (see Law Society of Upper Canada v. Khan, 2018 ONLSTH 35).

[55] The limited involvement of Colleton is irrelevant to Khan’s attack on the decisions of the LST. Further, the claims against Colleton stand no chance of success and, frankly, are absurd in that they are premised on a mistaken belief on the part of Khan (see paragraphs 185 and 186 of the Statement of Claim) that Colleton required Khan’s consent and authorization to provide any evidence to the LSO. No such authorization was required.

[56] Besides, even if the Claim as against these Defendants is not frivolous, it is certainly an abuse of process as it attempts to make Colleton liable for what he said (wrote) in the context of a quasi-judicial proceeding.

[57] Colleton’s evidence is protected by absolute privilege, which doctrine is not limited to an action in defamation but is an immunity that extends to any action, however framed. Samuel Manu-Tech Inc. v. Redipac Recycling Corp., 1999 CanLII 3776 (ON CA), 1999 CarswellOnt 2764 (C.A.), at paragraphs 19 and 20.

[58] At their core, Khan’s claims against Colleton are akin to the following. Imagine that Jane Doe sues Dr. X for negligence. The insurer retains Dr. Y to review a medical report being relied upon by Jane. Dr. Y opines that Jane is a malingerer. As it turns out, after a judge-alone trial, the judge finds against Jane on liability. Her Honour places no weight on the opinions of Dr. Y and does not even mention Dr. Y in the decision. Upset about the decision, Jane sues Dr. Y for a whole host of things including an alleged breach of ethics because Dr. Y did not ask Jane for her permission to give evidence.

[59] With respect, that is a ball that cannot be allowed to roll. It must be stopped now.

The Hamilton Police Defendants

[60] The Claim is dismissed as against the Hamilton Police and Dhinsa. It is frivolous, and it is an abuse of the process of the court: Rule 2.1.01(1).

[61] Reading Khan’s pleading as generously as possible, it appears that he has sued these Defendants primarily because of an alleged inept, in fact corrupt, investigation.

[62] As acknowledged by Khan at paragraphs 123 and 124 of the Statement of Claim, the charges laid by the Hamilton Police culminated in Khan pleading to and being found guilty of a criminal offence.

[63] By itself, that fact does not mean that all of Khan’s claims as against these Defendants should be summarily dismissed.

[64] There are other factors to consider, however. But for the possible exception of one cause of action pleaded, dealt with below, the claims advanced against these Defendants are so wholly devoid of merit that they can only be characterized as frivolous.

[65] Malicious prosecution? The police do not prosecute crimes.

[66] "Malfeasance in public power"? I take this to be the same as misfeasance in a public office, which is a recognized cause of action in Canada. It is also, however, an intentional tort. It requires, among other things, deliberate unlawful conduct on the part of the alleged tortfeasor. Freeman-Maloy v. Marsden (2006), 2006 CanLII 9693 (ON CA), 79 O.R. (3d) 401 (C.A.).

[67] There is nothing pleaded by Khan that is capable of reaching the level of such wilful misconduct on the part of these Defendants.

[68] Negligent investigation? It is now trite law that one of the necessary ingredients of the tort of negligent investigation is that the criminal charge(s) must have been resolved in favour of the claimant. That cannot be said here, given the finding of guilt.

[69] Entrapment? Deceit? Abuse of power/abuse of process? Intentional infliction of mental suffering? Infringement of the FIPPA and/or other legislation? As against these Defendants, I do not understand any of these claims. I think, perhaps, they are meant to apply only to the LAO and Matanovic.

[70] Defamation? On the basis of a standard press release due to criminal charges having been laid? With respect, that is a clearly unsustainable position to advance.

[71] That leaves just the alleged infringement of Khan’s Charter rights, specifically section 8, and the related alleged violation of solicitor-client privilege. The notion is that the authorities, LAO and the Hamilton Police, obtained damning information from Khan’s files and from his clients without waivers of solicitor-client privilege, allegedly amounting to an unreasonable search or seizure of information.

[72] Maybe such a claim is viable. At this stage, I am not sure. But this identical claim is already a part of the Hamilton action and is discussed at length by Khan starting at paragraph 148 on page 26 of the Hamilton pleading. Although there are repeated references to the Hamilton Police in that document, Khan chose not to name the Hamilton Police and/or Dhinsa as Defendant(s) in that action. If he now has had a change of mind in that regard, he should pursue his amendment of pleading rights in the Hamilton proceeding rather than commence a separate action in another judicial centre.

[73] The latter is an abuse of the process of the court.

The Remaining Defendants

[74] Although this Court may, on its own initiative, dismiss the Claim against those Defendants who did not file Rule 2.1 requests, after considering that option, I decline to do so.

[75] Khan deserves an opportunity to make submissions in that regard, if and when the request(s) is/are made.

[76] Thus, to repeat, the sixteen Defendants are: (i) the LSO, (ii) the LST, (iii) Wright, (iv) Anand, (v) Leighton, (vi) Laskin, (vii) McPhadden, (viii) Stuart, (ix) Maunder, (x) Iwanowich, (xi) Colleton, (xii) Colleton Corporation, (xiii) LAO, (xiv) Matanovic, (xv) Hamilton Police, and, finally, (xvi) Dhinsa.

[77] The Claim will be allowed to continue as against the LSO, McPhadden, Stuart, Maunder, and Iwanowich.

The Stay Ordered Previously

[78] As against the five Defendants named immediately above, the stay previously ordered is hereby lifted.

III. Conclusion

[79] Under Rule 2.1.01(1), the Claim is hereby dismissed as against eleven of the sixteen Defendants: the LST, Wright, Anand, Leighton, Laskin, Colleton, Colleton Corporation, LAO, Matanovic, Hamilton Police, and Dhinsa.

[80] Otherwise, the stay is lifted, and the balance of the Claim will proceed in the ordinary course.

Costs

[81] If not resolved among the parties, written submissions on costs will be accepted.

[82] The eleven successful Defendants shall file their submissions within 45 calendar days of the date of these Reasons. Each of those submissions shall not exceed three pages, excluding attachments.

[83] Khan shall file one single submission, not exceeding ten pages excluding attachments, within 30 days of his receipt of the last submission delivered by any of the Defendants.

Conlan J.

Date: August 23, 2019

COURT FILE NO.: 1740/19

DATE: 2109-08-23

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

OMAR SHABBIR KHAN

Plaintiff

– and –

LAW SOCIETY OF ONTARIO, LAW SOCIETY TRIBUNAL, DAVID WRIGHT, RAJ ANAND, MARGARET LEIGHTON, BARBARA LASKIN, DEBORAH MCPHADDEN, GLENN STUART, LESLIE MAUNDER, NINA IWANOWICH, DOCTOR MICHAEL COLLETON, MICHAEL COLLETON MEDICINE PROFESSIONAL CORPORATION, LEGAL AID ONTARIO, VICTOR MATANOVIC, HAMILTON POLICE SERVICES AND KEVIN DHINSA

Defendants

REASONS FOR JUDGMENT

CONLAN J.

Released: August 23, 2019