Court File and Parties

COURT FILE NO.: CV-20-2010 DATE: 2021-04-28

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

OUSSAMA HAMZA o/a HAMZA LAW Applicant

– and –

LAW SOCIETY OF ONTARIO, ISMAIL ADERONMU, JESSICA SOUBAS, YEVGENIYA HUGGINS and VINCENT ROCHELEAU Respondents

COUNSEL: The Applicant, self-represented Katherine Hensel, for the Respondent Law Society of Ontario Solomon McKenzie and Atrisha Lewis, for the Respondent Ismail Aderonmu Stephen Moore, for the Respondent Vincent Rocheleau The Respondent Yevgeniya Huggins, self-represented The Respondent Jessica Soubas, self-represented

HEARD: March 17, 2021 by videoconference

BEFORE: HEENEY J.

Reasons for Judgment

[1] This matter came before this court by way of Notice of Application, issued by the applicant on December 21, 2020. It had previously come before Leach J. on January 22 and February 3, 2021. Those attendances resulted in extensive reasons being released by Leach J., reported at 2021 CarswellOnt 839, 2021 ONSC 580, and at 2021 CarswellOnt 1420, 2021 ONSC 898 respectively.

[2] I cannot improve upon the outline of the background history of this case that was provided by Leach J. at para. 5 of his first decision, so I will simply reproduce it in full:

a. The applicant Mr Hamza is a lawyer with a law office here in the city of London.

b. The respondent Law Society of Ontario (”LSO”) obviously is the body charged with responsibility for the self-regulation of lawyers and paralegals in this province; i.e., to ensure that the people of this province are served by lawyers and paralegals who meet high standards of learning, competence and professional conduct.

c. Based on indications in the material I received, most if not all of the remaining respondents appear to be individual lawyers or law students.

d. This litigation arises from various messages, responses and/or comments posted on the online “Linkedin” internet platform, in the fall of 2020. In that regard:

i. The relevant postings apparently began with one made by Mr Rocheleau, (who is currently practising as an associate lawyer with a Toronto law firm), on or about October 9, 2020. In that initial posting, Mr Rocheleau noted that the University of Ottawa Library was seeking content from women about their experiences of and during the COVID-19 pandemic, and encouraged participation in the project.

ii. Mr Hamza was one of the recipients of that initial Linkedin posting by Mr Rocheleau relating to the University of Ottawa Library project. Mr Hamza chose to respond by posting his own message on the same Linkedin platform, addressing the message posted by Mr Rocheleau. It is not clear to me from the material whether that response from Mr Hamza initially was directly exclusively to Mr Rocheleau or to all those who had received the original message posted by Mr Rocheleau. In any event, Mr Hamza’s comments were critical of the original message posted by Mr Rocheleau and/or the relevant University of Ottawa Library project. For example, the message posted by Mr Hamza included an expression of his views:

1. that the message and/or project were “discriminatory toward men and other gender identities” and served “no social promotional purposes”;

2. that the “paucity of a female record” was not the product of “patriarchal oppression”;

3. that “women didn’t write their histories because they didn’t care to do so”;

4. that “women just don’t care about history or philosophy” because “women don’t generally consider being a philosopher or historian ‘sexy’”; and

5. that “by contrast, a traditional man’s man is an extremely capable historian and philosopher, like leaders of nations”.

iii. Mr Rocheleau in turn posted a further message to the Linkedin platform, noting Mr Hamza’s response to Mr Rocheleau’s earlier posting, and saying “Don’t be O.D. Hamza”. That posting clearly seems to have been shared with other users of the Linkedin platform.

iv. The messages posted by Mr Rocheleau and/or Mr Hamza prompted the posting of additional messages by other users of the Linkedin platform, with some responding to Mr Rocheleau, some apparently responding directly to Mr Hamza, and Mr Rocheleau and Mr Hamza responding directly to some of those other users who were posting messages in relation to the matter.

v. In the course of those various exchanges of messages posted to the Linkedin platform, Mr Hamza defended his views and made further comments that were critical of those who were criticizing him, and/or critical of their views. Those comments included suggestions:

1. that one of his critics was acting like “a low self-esteem loser”, and/or making comments to be expected from an “incompetent philosopher and lawyer”;

2. that some of the responses posted in response to his comments signified “laughter by a white man and a wog”;

3. that some of the posters, (including Mr Rocheleau), were attempting to “police” free speech “on the graves of the indigenous people they buried”;

4. that white women had been “raising murderers of Indians and blacks they now pretend to support against ‘villains’ like” Mr Hamza;

5. that Mr Rocheleau “should deport himself to France” if he “really wants to help women, minorities and indigenous people as he pretends”; and

6. that Mr Rocheleau and another poster had been “colonizing and genociding the country”.

vi. On or about October 13, 2020, Mr Rocheleau filed an online complaint with the LSO, expressing concern that Mr Hamza’s posted comments, (which apparently had received more than 3,000 views on the Linkedin platform), were racist and sexist. The material filed by Mr Rocheleau in this proceeding indicates that a number of the other respondents in this litigation may have filed similar complaints with the LSO about Mr Hamza’s conduct.

vii. The messages posted on the Linkedin platform and/or the resulting complaint or complaints made to the LSO clearly have caused Mr Hamza significant upset and concern; concern that prompted him to initiate this litigation by way of a notice of application. In his notice of application, (which is undated but nevertheless apparently was emailed to at least some of the respondents on or about December 23, 2020, with a indication that the application would be heard here in London on January 22, 2021), Mr Hamza seeks various forms of relief, including:

1. recusal of any judge scheduled to hear the matter if the judge is not a “red Indian” and therefore “a colonizer”, (because of an alleged “conflict of interest”), failing which Mr Hamza seeks “summary judgment” in relation to his application, as Mr Hamza says he will have “proven his point” against the “defendants” “if no ‘red Indian’ judge is available to judge this matter”;

2. an order compelling the LSO to amend its investigation procedure “to conform to rational and constitutional principles” in various suggested ways;

3. a declaration that the LSO is “a racist and failed institution”;

4. a declaration that Mr Hamza has “the right to declare non-confidence in the [LSO] and not to pay fees to it, as it is useless to him”;

5. a declaration that the LSO has “no jurisdiction over the private lives of lawyers”, and that “lawyers have the same constitutional rights as other citizens”;

6. an order compelling “the defendants” to pay Mr Hamza certain amounts “in trust”, equal to the “amount of their expenses pursuing frivolous and vexatious complaints against him”, which he then will use to “represent clients who cannot afford a lawyer, unlike the defendants who use such complaints to profit from investigations and to punish and waste the time of lawyers who disagree with them”; and

7. an order compelling each of the “defendants” to pay Mr Hamza “$1,000 in aggravated damages”, also to be held “in trust” and used by Mr Hamza “to represents (sic) clients who cannot afford justice”.

[3] For completeness, there was another post on Linkedin, quite apart from the one initiated by the respondent Rocheleau, that led to the involvement of the respondent Aderonmu in this case. It was a post made by the applicant which made comments about the respondent Aderonmu’s racial identity, his personal life (and in particular the fact that he is married to a white woman) and his fitness to be studying or practicing law. Exhibit A to the affidavit of the said respondent, sworn January 18, 2021, shows the post, which includes a photograph of the respondent, his wife and their children, with speech and thought bubbles containing various derogatory comments pointing to each of them. The bubble pointing to the respondent is illustrative of the content: “I’m a criminal … lawyer. And a self-hating Nigerian. This is my ‘family’”. Another picture, inserted at the bottom of the main one, purports to show “Ish’s biological family” and a thought bubble pointing to a young man says “A criminal; a drug dealer; an enemy of God; and now a slaver-lover. What next? A judge?”

[4] The respondent Aderonmu forwarded this post to the respondent LSO, and made a formal complaint against the applicant, on the basis that posting such content is “conduct unbecoming of a lawyer”.

[5] The LSO initiated an investigation into these complaints and contacted the applicant to arrange an interview, but the applicant refuses to provide one or to otherwise cooperate with the investigation. His response, instead, has been to issue this Notice of Application, which seeks to prevent the LSO from investigating his conduct, and seeks damages and other relief from those who have laid complaints against him. His Factum, dated February 1, 2021 and which runs to 131 pages in length (without counting the many hundreds of pages of “exhibits” which are attached thereto), claims relief in “Part V: Order Sought” far beyond what was asked for in his Notice of Application and now includes:

• $55,000 in consequential damages for the respondents’ actions “on the remainder of Mr. Hamza’s career”;
• $100,000 for tuition and expenses from the LSO;
• General damages of $60,000;
• Aggravated damages in an unspecified amount due to malice, discrimination, breach of privacy “and the like”;
• An order that the respondents pay to him an amount equal to their expenses in pursuing their complaints against him, which he will hold in trust to represent clients who cannot afford a lawyer “unlike the respondents who waste it to profit from investigations and punish lawyers who disagree with them”;
• An order striking the motions brought by the respondents;
• Recusal by the judge ‘if it is not indigenous”;
• The matter shall be referred to a Muslim Arab arbitrator;
• Mr. Hamza shall not be required to refer to any judge in the future as “Your Honour” or “Justice”;
• Ms. Soubas and Ms. Huggins “shall be removed from this action and found summarily guilty of their specious accusations against Mr. Hamza”;
• The respondents shall issue a formal apology to Mr. Hamza;
• The LSO shall end its “protracted and prejudicial inquisition” against him;
• He shall no longer pay fees to the LSO;
• Mr. Hamza “shall no longer pay taxes to a European colonizer, but to a ‘red Indian’ representative in government”;
• The respondent Aderonmu shall not be admitted to the Bar; and,
• A declaration that the LSO is a “discriminatory institution both in regard to race and religion”.

[6] Obviously, the applicant cannot simply add additional claims in his Factum without seeking and obtaining leave to amend his Notice of Application, which he has not done. This is, however, only one of many procedural errors the applicant has made in this case.

[7] The respondents variously ask for some or all of the following relief:

• That all of the applicant’s pleadings be struck out under rule 25.11 of the Rules of Civil Procedure, without leave to amend, on the basis that they are scandalous, frivolous, vexatious and an abuse of the process of the court;
• That the applicant’s pleadings be struck be struck under rule 21.01(1) because they disclose no reasonable cause of action; or,
• That the application be dismissed because it is completely without merit.

[8] When the hearing began, the applicant was invited to make his submissions. He declined to do so, stating that he had filed over 1,000 pages of material and that said everything he needed to say. He did so at his peril. It is not the task of the respondents nor the court to sift through the applicant’s inappropriately voluminous and verbose documentation to see if there is some answer to the arguments presented by the respondents. It is the applicant’s responsibility to present his own case, and he refused to do so.

[9] I asked him for a clear and concise answer to this question: what was the rule or statutory authority he relied upon to bring this proceeding to court by way of a Notice of Application as opposed to a Statement of Claim? His response was “Rule 1, which requires flexibility by court”. I infer that he was referring to Rule 1.04(1) which requires the rules to be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

[10] While the Rules are to be liberally construed, they are not to be ignored altogether. That is what the applicant has done here. Quite apart from the many procedural errors made by the applicant, as detailed in the two decisions of Leach J., the fundamental problem is that this case is not the proper subject-matter of a Notice of Application.

[11] Rule 14.02 provides that “Every proceeding in the court shall be by action, except where a statute or these rules provide otherwise.” Rule 14.03 provides that the “originating process for the commencement of an action is a statement of claim”. Rule 14.05(3) provides a list of exceptions where a proceeding may be brought by application, none of which apply here. The closest that the applicant can get is subrule 14.05(3)(g), which deals with declaratory relief (which the applicant is seeking), but the qualification is that it must be “ancillary to relief claimed in a proceeding properly commenced by a notice of application.” This condition cannot be met here.

[12] Subrule 14.05(3)(g.1) creates an exception “for a remedy under the Canadian Charter of Rights and Freedoms”. On pg. 3 of the Notice of Application, the applicant asks for the following relief:

An order for the Law Society of Ontario to amend its investigation procedure to conform to rational and constitutional principles, to wit by:

a. Immediately providing full disclosure to the subject of a complaint, including information concerning the identity of complainants, their complaints and evidence on which they rely.

b. Interviewing complainants before interviewing the subjects of complaints.

c. Not requiring the subject of a complaint to submit to an interview pursuant to s. 49 of the Law Society Act, which violates ss. 8 and 11 (b) and 13 of the Charter, especially during the COVI D-19 pandemic when the home of many lawyers is their office.

[13] He also alleges, on pg. 10 of the Notice of Application, “Breach of s. 2 Charter rights” under the heading “The grounds for the Application are…”, but does not tie that alleged breach to any relief claimed.

[14] However, the law is clear that alleged Charter breaches should not be dealt with by the court until the administrative proceeding in which they arise has run its course. In DioGuardi Tax Law v. Law Society of Upper Canada, 2015 ONSC 3430, aff’d 2016 ONCA 531, Belobaba J. said the following, at paras. 10-11:

As I have already noted, the case law is clear that absent exceptional circumstances, “a court should not interfere in an administrative proceeding until it has run its course.” In my view, the applicants are raising issues and seeking remedies that, with one exception, can be considered and granted by the Law Society Tribunal should the two conduct applications proceed to a hearing. Indeed, many if not all of the remedies sought in this application have already been addressed by the Law Society Tribunal in previous cases. Some of the orders and declarations set out above in paragraph 5 can readily be granted by the Tribunal. As for orders and declarations that flow from the constitutional challenge based on ss. 7 and 8 of the Charter, if the Tribunal agrees that the Charter has been breached and that the impugned provision cannot be saved under section 1, it may disregard the provision on constitutional grounds and rule on the claim as if the impugned provision is not in force.

The only remedy that cannot be granted by the Law Society Tribunal is a formal declaration of invalidity under s. 52 of the Constitution Act. However, as the Supreme Court made clear in Okwuobi, the fact that the administrative tribunal cannot issue a formal declaration of invalidity “is not ... a reason to bypass the exclusive jurisdiction of the Tribunal.” The expert administrative tribunal should hear the constitutional challenge and make its ruling. If the applicant loses, it can appeal or seek judicial review. And it is “at this stage of the proceedings” i.e. when the matter makes its way to the court, that a formal declaration of invalidity can be sought. [footnotes omitted]

[15] This reasoning applies even more forcefully in the case at bar, because here there is no remedy that could not be granted by the Law Society Tribunal. The applicant has not sought a declaration of invalidity under s 52 of the Constitution Act in his Notice of Application.

[16] I agree with Belobaba J. that any Charter challenge to the investigative powers of the LSO should be deferred to Law Society Tribunal. Accordingly, in the exercise of my discretion, I decline to exercise the court’s jurisdiction to hear that aspect of the application. Thus, subrule 14.05(3)(g.1) does not assist the applicant in providing authority to proceed with those specific claims by way of application instead of action.

[17] This case certainly does not fall under the catch-all subrule 14.05(3)(h), which makes an exception for “any matter where it is unlikely that there will be any material facts in dispute.” The 1,000+ pages of “evidence” filed by the applicant contain innumerable statements of “fact” that the respondents disagree with.

[18] Furthermore, the applicant is claiming damages in substantial amounts. The law is clear that an application under Rule 14.05(3) is not available for the resolution of damages claims. Such claims must be pursued by way of action: see Hefford v. Charpentier, 2009 21761 (Ont. S.C.J. Div. Ct.) at paras. 24-6.

[19] I conclude that the Rules do not authorize this proceeding to be commenced by way of a Notice of Application, and the applicant has pointed to no statutory provision that would do so.

[20] The manner in which a proceeding is commenced is not just a formality. It matters. Where a defendant is served with a Statement of Claim, they have the right to bring counterclaims, cross-claims or add third parties. They have the right to file a jury notice, so that the case will be decided by a jury, and not by a judge alone as is the case with an application. They are entitled to broad rights of oral and documentary discovery. They are entitled to have a pre-trial, and then to have a trial with oral evidence. None of that is available where a proceeding is commenced by an application, absent leave of the court.

[21] I am of the view that this application is not properly before this court, and that it should have been commenced by way of a Statement of Claim. The applicant was cautioned as to this deficiency by Leach J. in his first decision, yet the applicant has taken no steps to correct his error, such as bringing a motion to convert this application into an action. Accordingly, I am not disposed to make such an order on my own motion. The application is, therefore, dismissed on that basis.

[22] In the event that I am wrong in that conclusion, I will consider the other reasons advanced by the respondents as to why this proceeding should be brought to an end.

[23] The LSO moves to strike the entirety of the Application under Rule 25.11 and 38.12 of the Rules, without leave to amend. Rule 25.11 provides as follows:

25.11 The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action;

(b) is scandalous, frivolous or vexatious; or

(c) is an abuse of the process of the court.

[24] Rule 38.12 simply provides that Rule 25.11 applies, with necessary modifications, to documents filed in an application.

[25] The LSO, in the alternative, also relies on Rule 21.01(1)(b). That rule entitles a party to move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action. It applies here by virtue of Rule 14.09, which provides that an originating process that is not a pleading may be struck out or amended in the same manner as a pleading.

[26] In Carney Timber Co. v. Pabedinskas, 2008 CarswellOnt 7089 at para. 16, Strathy J., as he then was, summarized some of the main legal principles relative to Rule 25.11:

• a fact that is relevant to a cause of action cannot be scandalous, frivolous or vexatious;

• a pleading that has no material facts is frivolous and vexatious;

• a pleading that is superfluous or can have no effect on the outcome of the action is scandalous, frivolous and vexatious;

• portions of a pleading that are irrelevant, argumentative, inserted only for colour or are bare allegations without material facts in support, will be struck as scandalous;

• a pleading that is purely argumentative will be struck out;

• a pleading that contains unfounded and inflammatory attacks on the integrity of a party, and speculative and unsupported allegations of defamation will be struck as scandalous and vexatious;

• a pleading may be struck on the ground that it may prejudice or delay the fair trial of the action where the probative value of the evidence would be outweighed by the time and effort involved and would seriously interfere with the fair and focused trial of the issues;

• striking a pleading on the ground that it may prejudice or delay the fair trial of an action is an exercise in discretion — the court must balance the added complexity of the pleading against the potential probative value of the facts alleged;

• pleadings that are replete with conclusions, expressions of opinion and contain irrelevant matters will be struck in their entirety; and

• pleadings that are clearly designed to use the judicial process for an improper purpose are an abuse of process — these include harassment and oppression of other parties by multifarious proceedings, the re-litigation of issues previously decided and the litigation of matters that have been concluded.

[27] The Notice of Application, affidavit and Factum filed by the applicant together amount to over 1,000 pages of rambling, pseudo-intellectual attacks on the LSO and the other respondents, expressions of his opinion on their character and integrity, racist and misogynist attacks on the respondents and the judiciary, arguments that amount to little more than incomprehensible legal gibberish, and supposedly “historical” references to things such as genocide, colonization and slavery that can have no possible connection to what this case is, at its base, all about: his objection to the fact that the respondents made complaints to the LSO that he acted in a manner unbecoming of a member of the legal profession, and that the LSO had the audacity to investigate these complaints. Together his pleadings meet almost every one of the examples set out in Carney Timber for when a pleading may be struck out under Rule 25.11.

[28] I have no intention of reviewing all of the objectionable passages in the applicant’s material because there are far too many and is not necessary to do so. The LSO lists some representative examples in its Factum dated January 29, 2021 at para. 18:

a. “If no ‘red Indian’ judge is available to judge this matter, summary judgment of this application is warranted, as it proves Mr. Hamza’s point against the defendants”;

b. “Throughout [the LSO’s] history, it condoned racism, sexism, homophobia, slavery, colonization and genocide. It now hypocritically pretends to champion equality, diversity and inclusion, and uses this to increase its powers of inquisition, which is the gist of what sustains it as an institution, whether it is chasing after witches or political dissidents”;

c. “the LSO pretends as if the greatest victims of colonialization are those who embraced it, both literally and figuratively—like whitewashed Indians, Jews and blacks—rather than fought it, and suffered way more casualties to preserve their integrity”;

d. “Lawyers, politicians and media figures openly lie about Islam and Arabs, who are openly reviled and mass murdered before the jaundiced eyes of the LSO, which does not police those kinds of political opinions. If anything, the LSO encourages them”;

e. “[the LSO] uses blacks like Mr. Aderonmu to fight Mr. Hamza, since European colonizers cannot credibly complain about Mr. Hamza’s anticolonial writings. They need whitewashed blacks and Indians to do it for them, and they need to make it about race or sex, which are irrelevant. Algerian revolutionaries called these kinds of people Harkis. That is, people who side with, or go to bed with, colonizers. It is not a coincidence, nor is Mr. Hamza surprised, that the respondents and their advocates fit this profile”;

f. “indigenous [sic] people were not allowed to become or hire lawyers in Canada without abdicating their Indian status. In the land of ‘red Indians,’ there are scarcely any ‘red Indians’ lawyers, thanks to the LSO. The LSO may sponsor some ‘white Indians’ to naysay this biological fact; however, this only proves its work is done”;

g. “At best, the LSO promotes ‘white Indians’ who exhibit European racial features, as well as culture, language and names, like judge Harry LaForme and Brad Regehr (the president of the Ontario Bar Association). This fulfills the liberal mandate the LSO condoned, just decades ago, of killing ‘red Indians’ through residential schools. It was also the original plan of colonizers to get rid of ‘red Indians’ by either killing or whitewashing them. … These whitewashed Indians will defend their indigeneity with more vigour than a European colonizer and accuse people like Mr. Hamza of racism for not calling them indigenous—which they are not, biologically”;

h. “Mr. Leach [sic] shall therefore recuse himself from the matter. It is not fair for Mr. Hamza to be accused for being a racist by an Islamophobe and European colonizers, and then to be judged by a European colonizer. There is no justice in that”.

[29] “Mr. Leach”, the apparent “European colonizer” referred to in the immediately preceding subparagraph, is Mr. Justice Leach, who has already dealt with this case on two occasions. This is not the only attack on the judiciary in the applicant’s materials. In his affidavit, affirmed February 1, 2021, at para. 208, he states: “This is not an independent judiciary. It is a politicized and corrupt judiciary.” In that same affidavit, at para. 106, he states that, under the auspices of the LSO, the practice of law in Ontario is controlled by “the mob”.

[30] It is plain and obvious that these pleadings are scandalous, frivolous or vexatious, as those terms have been defined. That the applicant is attempting to use this proceeding as a forum for his racist, misogynist and bizarre views is an abuse of the court’s process.

[31] These are not isolated instances of such language. The applicant’s repeated use of the racist term “red Indian” to describe members of our indigenous community is particularly offensive. The applicant’s pleadings as a whole are replete with similar objectionable statements, expressions of opinion and irrelevant matters. As such, it is appropriate that they be struck in their entirety.

[32] As to whether leave should be granted to amend, the LSO argues that the application suffers from the following radical and fatal defects that cannot be cured by an amendment:

1. The damages claimed against the LSO are unavailable by virtue of s. 9 of the Law Society Act, which immunizes the LSO, its benchers, officers and employees, with respect to acts done in good faith;
2. Despite the numerous allegations made in the applicant’s application record and factum, totalling hundreds of pages, there is nothing that remotely resembles the bad faith needed to overcome s. 9;
3. To the extent that the applicant’s factum makes allegations that his Charter rights are or would be breached during any investigation by LSO, the law is clear that a court will not entertain Charter challenges while disciplinary investigations or proceedings are ongoing, since such allegations must be first addressed within the administrative forum.

[33] Section 9 of the Law Society Act provides as follows:

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

[34] In Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618, the court stated the following, at paras. 23-4:

Here, the unanswerable defence is that it is settled law that s. 9 of the Law Society Act provides the Law Society with statutory immunity from civil claims for damages for the exercise of statutory duties and powers made in good faith: Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562 (S.C.C.) , at paras. 14-17; Robson v. The Law Society of Upper Canada, 2017 ONCA 468, 26 Admin. L.R. (6th) 133 (Ont. C.A.), at paras. 4-7; and Conway v. Law Society of Upper Canada, 2016 ONCA 72, 395 D.L.R. (4th) 100 (Ont. C.A.), at paras. 21-22.

While a claim against the Law Society alleging that it engaged in bad faith conduct may not be subject to the immunity provided by s. 9 of the Law Society Act, such a claim must still be pleaded with precision and with full particulars, as required by the Rules of Civil Procedure: Conway , at para. 39; r. 25.06(8).

[35] Here there is nothing in the applicant’s material that pleads, with precision and full particulars, that the LSO engaged in bad faith conduct.

[36] Pleadings may also be struck under Rule 25.11 where it appears that the proceeding “is untenable or unlikely to succeed”: Jaffer v. York University, 2010 ONCA 654. The various claims advanced by the applicant in this proceeding are summarized above at paras. 2 and 5. It is clear that the LSO has immunity from the damages claimed against it. As to the damages sought against the other respondents, I have already ruled that his claims for damages cannot be advanced by an application. I have also already declined to exercise the court’s jurisdiction to hear the Charter claims. The claims that remain are these:

• recusal of any judge scheduled to hear the matter if the judge is not a “red Indian” and therefore “a colonizer”, (because of an alleged “conflict of interest”), failing which Mr Hamza seeks “summary judgment” in relation to his application, as Mr Hamza says he will have “proven his point” against the “defendants” “if no ‘red Indian’ judge is available to judge this matter”;
• an order compelling the LSO to amend its investigation procedure “to conform to rational and constitutional principles” in various suggested ways;
• a declaration that the LSO is “a racist and failed institution”;
• a declaration that Mr Hamza has “the right to declare non-confidence in the [LSO] and not to pay fees to it, as it is useless to him”;
• a declaration that the LSO has “no jurisdiction over the private lives of lawyers”, and that “lawyers have the same constitutional rights as other citizens”;
• an order that the respondents pay to him an amount equal to their expenses in pursuing their complaints against him, which he will hold in trust to represent clients who cannot afford a lawyer “unlike the respondents who waste it to profit from investigations and punish lawyers who disagree with them”;
• the matter shall be referred to a Muslim Arab arbitrator;
• Mr. Hamza shall not be required to refer to any judge in the future as “Your Honour” or “Justice”;
• Ms. Soubas and Ms. Huggins “shall be removed from this action and found summarily guilty of their specious accusations against Mr. Hamza”;
• the respondents shall issue a formal apology to Mr. Hamza;
• the LSO shall end its “protracted and prejudicial inquisition” against him;
• he shall no longer pay fees to the LSO;
• Mr. Hamza “shall no longer pay taxes to a European colonizer, but to a ‘red Indian’ representative in government”;
• the respondent Aderonmu shall not be admitted to the Bar; and,
• a declaration that the LSO is a “discriminatory institution both in regard to race and religion”.

[37] These claims can fairly be described as nonsense. They are untenable at law and have no chance of success.

[38] Accordingly, I conclude that it is not appropriate to grant leave to amend, because the claims advanced could not be improved by any amendment.

[39] I have to this point focussed only on the grounds raised by the LSO for striking the applicant’s pleadings without leave to amend, which have proven to be sufficient to determine the matter. However, the other respondents have made compelling points in their own factums that deserve to be mentioned.

[40] The respondent Vincent Rocheleau, in his Fresh Factum dated January 28, 2021, points out the many procedural defects in the applicant’s handling of this application, including that the applicant’s Factum consists of some 129 pages plus hundreds of pages of exhibits, none of which constitute evidence that has been properly put before the court.

[41] He also argues that to the extent the applicant’s claims relate to defamation, the complaints made to the LSO are clearly protected by qualified privilege. Such a privilege arises when the person who makes the communication has an interest or a duty – legal, social or moral – to make the communication to the person to whom it is made. In Beach v. Freeson, [1972] 1 Q.B. 14 it was held that a communication to the Law Society by a member of parliament regarding complaints he received about the conduct of solicitors was considered to be covered by qualified privilege. Here, Mr. Rocheleau, a practicing lawyer, clearly had a social or moral interest in reporting conduct on the part of another lawyer that is, or may be, unbecoming of a member of the profession, and the Law Society clearly had an interest in receiving the complaint. I am satisfied that the complaints filed by all of the respondents with the LSO are protected by qualified privilege.

[42] The Respondent Ismail Aderonmu also filed a responding record which includes a Notice of Motion in which he asked that the application be dismissed because it is frivolous and vexatious, and that the applicant’s pleadings be struck in their entirety, without leave to amend, pursuant to Rule 25.11. His counsel, Mr. McKenzie, filed during argument a very useful table outlining the many, many passages in the material filed by the applicant that meet the definition of being scandalous, frivolous or vexatious. It runs to 29 pages in length, which illustrates how saturated the applicant’s pleadings are with statements that deserve to be struck out. I do not intend to reproduce that table in these reasons, but it has been filed with the court record. I find it to be an accurate summary of the statements made by the applicant in his materials, and I agree with the reasons expressed in the table as to why those statements are scandalous, frivolous or vexatious.

[43] The respondent Jessica Soubas is the only respondent who is not associated with the legal profession. She did not file any written material but did make oral submissions. Essentially, she said she saw something on Linkedin that deeply disturbed her. She was shocked and felt that the best thing was to send quick email to the LSO, to let them know what she saw so that they could take appropriate action. It was, in her view, “totally the right thing to do”. Six months later she found out that she was a “defendant” in this lawsuit, and was confused as to why she has been forced to take days off of work to participate. While Ms. Soubas was not equipped to make any profound legal arguments, her submissions make out as clear a case for qualified privilege as any lawyer could have made.

[44] The respondent Yevgeniya Huggins made similar submissions. She is a second-year law student who has more important things to do than read through over 1,000 pages of the applicant’s self-indulgent material, such as studying and writing exams. Her complaint to the LSO was made in good faith based on her honest perception of the facts, in furtherance of what she believed to be her moral duty. She is concerned about the chilling effect this lawsuit could have on her willingness and the willingness of others to report inappropriate behaviour.

[45] For the foregoing reasons, the application is dismissed as not being properly before the court. In the event I am in error in that ruling, I would have struck out the entirety of the materials filed by the applicant, pursuant to Rule 25.11, with prejudice and without leave to amend.

[46] The remaining issue is costs. The respondents may make brief written submissions as to costs within 15 days. The applicant shall have 15 days thereafter to file his brief written response. Any reply by the respondents shall be due within 10 days thereafter.

Mr. Justice T. A. Heeney

Released: April 28, 2021