COURT FILE NO.: CV-15-535850
DATE: 20210729
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PAUL ALEXANDER ROBSON
Plaintiff
– and –
THE LAW SOCIETY OF UPPER CANADA, ZEYNEP ONEN, MARK PUJOLAS, LISA FREEMAN and JAN PARNEGA-WELCH
Defendants
Richard Watson, for the Plaintiff; and Paul Robson self-represented
Sean Dewart, for the Defendants
HEARD: March 30, 2021
J. steele j.
The Motion
[1] The defendants bring a motion for summary judgment dismissing the plaintiff’s action.
[2] For the reasons set out below, the defendants’ motion is dismissed.
Overview
[3] There is a long history between the Law Society of Ontario (the “LSO”) and Mr. Robson. In this action, the plaintiff, Paul Robson, has sued the Law Society of Upper Canada, now the LSO, and certain of its employees for malicious prosecution and misfeasance in public office.
[4] The defendants seek to have the plaintiff’s claim dismissed against them on the grounds that there is no genuine issue for trial, as the defendants argue that the actions of the LSO were not accentuated by malice, which is required for both malicious prosecution and misfeasance in public office. Mr. Robson’s position is that the prosecution of him by the LSO was carried out with lack of good faith and malice and that this matter ought to proceed to trial.
[5] The only issue to be determined on this motion is whether there is a genuine issue requiring a trial with respect to either of the plaintiff’s causes of action.
Background
[6] The plaintiff is a lawyer and was called to the Ontario bar in 1983.
[7] The defendant, Mark Pujolas, was the investigation counsel at the LSO involved with Mr. Robson’s file. The defendant, Jan Parnega-Welch, was the discipline counsel at the LSO involved with Mr. Robson’s file. The defendant, Lisa Freeman, was another discipline counsel at the LSO. The defendant, Zeynep Onen, was the director of professional regulation at the LSO, who oversaw a staff of 100-175 people.
[8] The action against Ms. Parnega-Welch has been dismissed.
Bankruptcy Litigation
[9] The LSO’s investigation arose from certain findings made by Justice Lax in a civil trial. The following is some background on that proceeding.
[10] From July 8, 1992 to May 15, 1996, Mr. Robson was an undischarged bankrupt. Following his bankruptcy there was an allegation that Mr. Robson held certain shares while he was bankrupt that were not disclosed to the trustee in bankruptcy.
[11] The trustee brought a claim against Mr. Robson alleging that he owned certain shares while he was an undischarged bankrupt, that he received income from the share ownership and that he failed to disclose the assets and income to the trustee.
[12] Justice Lax, in an oral decision dated February 1, 2002, determined that Mr. Robson was the beneficial owner of certain shares while a bankrupt and that this property vested in the trustee: Re Robson, 2002 CarswellOnt 5958 (S.C.). Justice Lax further found that (at paras. 25 and 26):
“Robson instructed Patricia Martin [Mr. Robson’s law clerk] to alter corporate records to conform to testimony given by McLellan which he coached. When Robson realized that the altered records prepared on his instructions exposed him to a claim by the Trustee, another story had to be invented and was.
Ms. Martin was the person who blew the whistle on Robson. There have been two attempts to suborn her testimony. She has been bribed and threatened, but refused to change her testimony and has suffered as a result. She lost her employment and is being sued by Cellex-C. However, none of her evidence was challenged. It is likely that the defendants knew that if she testified truthfully, there was no viable defence to the Trustee’s claim. I do not know why she decided to reveal the true state of Robson’s affair, but if any money is ultimately collected, the creditors have her to thank.”
[13] Justice Lax ordered the plaintiff and the defendant corporations to pay costs on a solicitor and client basis: Re Robson, 2002 CarswellOnt 5959 (S.C.). Justice Lax stated: “As my reasons indicate, there were two attempts made to suborn the testimony of Patricia Martin. As well, Robson and McLellan collaborated in a dishonest scheme to conceal Robson’s ownership in the shares, both before and during the litigation. In my view, this is an affront to the integrity of the litigation process and attracts an award of costs on the higher scale.”
[14] On October 12, 2004, the Court of Appeal for Ontario dismissed the plaintiff’s appeal from Justice Lax’s decisions: Re Robson, 2004 CarswellOnt 4097 (C.A.).
[15] On the basis of those findings, the trustee in bankruptcy brought a motion to annul Mr. Robson’s discharge from bankruptcy, pleading fraudulent activity. Justice Campbell determined that Justice Lax’s findings were capable of an interpretation that was short of fraud and dismissed the trustee in bankruptcy’s motion: Robson Estate (Trustee of) v. Robson, 2005 CarswellOnt 9917 (S.C.). The Court of Appeal dismissed the trustee’s appeal from Justice Campbell’s decision: Robson Estate (Trustee of) v. Robson (2006), 2006 CanLII 17743 (ON CA), 210 O.A.C. 183 (C.A.). In doing so, with regard to the issue of fraud, the Court of Appeal stated:
“As is evident from the relief sought and the facts pleaded in the proceedings before Lax J., those proceedings related exclusively to Robson’s ownership of the shares while an undischarged bankrupt. Fraud was not pleaded either expressly or by implication. Nor did the appellant’s right to the relief sought depend on whether Robson had acted fraudulently. If Robson owned the shares at the relevant time, the appellants were entitled to the relief sought regardless of whether Robson had deliberately concealed his ownership of the shares from the trustee. While it is clear that, by the end of the proceedings, the appellant claimed that Robson had dishonestly concealed his ownership of the shares from the appellant, the truth of that assertion was not “necessarily bound up” with the determination of Robson’s ownership of the shares.
It cannot be said that Robson and the appellant joined issue on the question of whether Robson had acted fraudulently in his dealings with the appellant prior to his discharge from bankruptcy. Robson had no notice prior to the proceeding before Lax J. that the appellant would ask her to make a finding that Robson had acted fraudulently. Robson chose to act for himself and he chose not to take part in the proceedings after the appellant’s case was completed. He did not advance a defence or take part in the defence advanced by his co-defendants. The finding of fraud made by Lax J. was based in no small measure on her assessment of the evidence led by the co-defendants. It would be unfair to prevent Robson from litigating the fraud question in this proceeding based on a finding of fraud in a prior proceeding when he had no notice that fraud was an issue and did not participate in the part of the trial that was central to the trial judge’s finding of fraud.
[16] Subsequently Mr. Robson brought a motion to set aside Justice Lax’s decisions. He alleged that a fraud had been perpetrated during the proceedings before Justice Lax. The trustee brought a motion to strike Mr. Robson’s motion. In August 2010, Justice Pattillo granted the trustee’s motion on the basis that Mr. Robson’s motion was an attempt to relitigate issues that were finally determined and was an abuse of process: Re Robson, 2010 ONSC 4391. Mr. Robson’s appeal of this decision to the Court of Appeal was dismissed.
Investigation by the LSO
[17] On or about May 27, 2002, the trustee in bankruptcy’s counsel sent a letter to the LSO enclosing Justice Lax’s February 1, 2002 decision.
[18] On or about June 12, 2002, the LSO commenced an investigation under section 49.3(1) of the Law Society Act, R.S.O. 1990, c. L8, into Mr. Robson’s conduct. That section provides that the LSO “may conduct an investigation into a licensee’s conduct if the [LSO] receives information suggesting that the licensee may have engaged in professional misconduct or conduct unbecoming a licensee.”
[19] The initial investigation counsel assigned to Mr. Robson’s matter was Wendy Wooman. In July 2003, Mr. Pujolas took over as the investigation counsel responsible for Mr. Robson’s matter.
[20] Mr. Robson was the subject of two distinct LSO disciplinary proceedings. The LSO disciplinary proceeding related to this action resolved in Mr. Robson’s favour on appeal.
Issues
[21] Is there a genuine issue for trial?
Analysis
Summary Judgment
[22] Under Rule 20.04 of the Rules of Civil Procedure, the Court shall grant summary judgment where the Court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[23] In Hryniak v. Mauldin, 2014 SCC 7, 1 S.C.R. 87, the Supreme Court of Canada set out the principles for the summary judgment motion judge to consider in determining whether there is a genuine issue requiring a trial based on the evidence before the Court. The Supreme Court of Canada indicated that there will be no genuine issue requiring a trial when the summary judgment 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.”
[24] In the recent Ontario Court of Appeal case, Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, the Court of Appeal stressed that motion judges must carefully analyze the evidence in determining whether there is a genuine issue requiring a trial. In RBC the Court of Appeal stated (at para. 25):
“While summary judgment is an important tool for enhancing access to justice and achieving proportionate, timely, and cost-effective adjudication, there is no imperative on the court to use it in every case… As affirmed by the Supreme Court in Hryniak, at para. 28, the overarching goal remains to have “a fair process that results in a just adjudication of disputes.”
[25] In Oxygen Working Capital Corp. v. Mouzakitis, 2021 ONSC 1907, Justice Myers set out the steps that should be considered. First, the motion judge must consider “whether there is a genuine issue requiring a trial based on the record alone and without using the enhanced fact-finding powers in Rule 20.04(2.1) of the Rules of Civil Procedure”. He then described the questions that the trial judge ought to consider if the enhanced fact-finding powers must be employed.
[26] The defendants take the position that there is nothing on the evidentiary record to show malice, which is required for both malicious prosecution and the tort of misfeasance in public office. The necessary elements of the tort of malicious prosecution are as follows:
- a proceeding initiated by the defendant;
- a proceeding terminated in favour of the plaintiff;
- the defendant had no reasonable and probably cause to initiate the proceeding; and
- the defendant acted with malice.
(Miazga v. Kvello Estate, 2009 SCC 51, 3 S.C.R. 339, at para. 3 (“Miazga”)
[27] A person claiming malicious prosecution has an uphill battle. As set out in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, at page 194:
“By way of summary then, a plaintiff bringing a claim for malicious prosecution has no easy task. Not only does the plaintiff have the notoriously difficult task of establishing a negative, that is the absence of reasonable and probable cause, but he is held to a very high standard of proof to avoid a non-suit or directed verdict (see Fleming, op. cit., at p. 606, and Mitchell v. John Heine and Son Ltd. (1938), 38 S.R. (N.S.W.) 466, at pp. 469-71)….”
[28] Further, in malicious prosecution, “malice” does not mean ill will or spite. There must be evidence of an improper purpose, as explained in Miazga (at para. 80):
“…The absence of a subjective belief in sufficient grounds, while a relevant factor, does not equate with malice. It will not always be possible for a plaintiff to adduce direct evidence of the prosecutor’s lack of belief. As is often the case, a state of mind may be inferred from other facts. In appropriate circumstances, for example when the existence of objective grounds is woefully inadequate, the absence of a subjective belief in the existence of sufficient grounds may well be inferred. However, even if the plaintiff should succeed in proving that the prosecutor did not have a subjective belief in the existence of reasonable and probable cause, this does not suffice to prove malice, as the prosecutor’s failure to fulfill his or her proper role may be the result of inexperience, incompetence, negligence, or even gross negligence, none of which is actionable: Nelles, at p. 199; Proulx, at para. 35. Malice requires a plaintiff to prove that the prosecutor wilfully perverted or abused the office of the Attorney General or the process of criminal justice. The third and fourth elements of the tort must not be conflated.
[29] In Conway v. Law Society of Upper Canada, 2016 ONCA 72, 395 D.L.R. (4th) 100, the Court of Appeal set out the essential elements of the tort of misfeasance in public office (at paras. 20 and 22):
“The tort of misfeasance in public office has been variously described in the case law as the tort of abuse of public office or abuse of statutory power: Odjhavji Estate v. Woodhouse, 2003 SCC 69, at paras. 25 and 30. Whatever the nomenclature, the essence of the tort is the deliberate and dishonest wrongful abuse of the powers given to a public officer, coupled with the knowledge that the misconduct is likely to injure the plaintiff: Odjhavji Estate v. Woodhouse, at para. 23. Bad faith or dishonesty is an essential ingredient of the tort: Odjhavji Estate v. Woodhouse, at para. 28 and Gratton-Masuy Environmental Technologies Inc. v. Ontario, 2010 ONCA 321, at para. 85.
Mere negligence in the good faith performance of the LSUC’s duties or functions is not enough to establish liability. However, an absence of good faith or “bad faith”, involving malice or intent is sufficient to ground a properly pleaded cause of action against the LSUC. See: Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17.”
[30] The defendants submit that there is nothing in the evidentiary record from which the Court could infer that the defendants’ conduct was actuated by malice, an element that is essential to both malicious prosecution and misfeasance in public office. Further, the defendants submit that there is nothing in the record from which the Court could conclude that the defendants lacked reasonable grounds to investigate and prosecute the plaintiff, an essential element of the malicious prosecution claim.
[31] There are issues that come down to credibility that cannot be determined based on the voluminous documentary record filed in the summary judgment motion. For example:
- The evidence of Mr. Robson is that the LSO interviewed numerous prospective witnesses but only those who would assist them in securing a misconduct finding. He alleges that the defendants’ breached their duty by deliberating suppressing pertinent evidence. Mr. Robson states that the LSO deliberately avoided interviewing, in any material way, witnesses who would support Mr. Robson, including Ken Tessis (Mr. Robson’s trustee in bankruptcy), Darlene Coutu, and Meghan McLellan. The evidence of Mr. Pujolas is that in the course of the investigation he spoke with Mr. Tessis, Ms. McLellan and Ms. Coutu.
- Mr. Robson’s position is that the central issue for determination is what the defendants knew and when they knew it. His position is that the defendants deliberately suppressed material evidence, which is denied by the defendants.
[32] This is not a case for summary judgment. Although I recognize that the plaintiff will have an uphill battle given the causes of action alleged and the jurisprudence, based on the inconsistent affidavit evidence and the record before me it is not possible for me to determine these issues on a summary judgment motion.
[33] I have also considered whether the need for a trial could be avoided by using the enhanced powers under Rule 20.04 (2.1) and Rule 20.04(2.2). Given that there are credibility issues and keeping in mind that the goal of summary judgment motions, as set out in Hryniak, is to have “a fair process that results in a just adjudication of disputes”, the use of the enhanced fact finding powers would not eliminate the need for a trial in this case.
[34] Costs of this motion shall be in the cause.
J. Steele J.
Released: July 29, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
PAUL ALEXANDER ROBSON
Plaintiff
– and –
THE LAW SOCIETY OF UPPER CANADA, ZEYNEP ONEN, MARK PUJOLAS, LISA FREEMAN and JAN PARNEGA-WELCH
Defendants
REASONS FOR JUDGMENT
J. Steele J.
Released: July 29, 2021