COURT FILE NO.: CV-20-2010-0000

DATE: 2021/01/25

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: OUSSAMA HAMZA, o/a HAMZA LAW, Applicant

AND:

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

BEFORE: Justice I.F. Leach

COUNSEL: Oussama Hamza, self-representing

Katherine Hensel and Kaelan Unrau, for the Law Society of Ontario

Atrisha Lewis and Solomon McKenzie, for Ismail Aderonmu

Jessica Soubas, self-representing

Yevgeniya Huggins, self-representing

Stephen Moore, for Vincent Rocheleau

HEARD: January 22, 2021

ENDORSEMENT

Introduction

[1] This matter came before me during “regular” motions, (i.e., civil motions realistically capable of being argued in less than 60 minutes and therefore not requiring a special appointment), being heard by teleconference on January 22, 2021.

[2] For the reasons that follow, it nevertheless did so in a very unsatisfactory way, with numerous complications preventing a fair, efficient or effective substantive hearing of the matter.

[3] Following extended discussion, and the setting of deadlines for additional filings intended to bring more order to the litigation, the matter was adjourned to a four-hour special appointment hearing on February 3, 2021. I will also note at the outset, for the benefit of court staff as well as others, that I am not seized of the matter.

[4] Beyond the aforesaid adjournment, this endorsement is simply intended to confirm the further filing deadlines that have been imposed, and to provide the judge presiding over that special appointment hearing with additional information intended to facilitate preparation for that hearing.

Background

[5] By way of further background and context suggested by the filings provided to me, but with nothing set forth hereafter in this paragraph intended as a formal finding of fact binding on the parties:

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”;[^1]

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”.

viii. Developments thereafter apparently were complicated in a number of ways, in turn generating various additional disputes reflected in further communications, some of which were supplied to me in advance of the hearing scheduled for January 22, 2021. For example:

1. It seems Mr Hamza circulated his notice of application only by email, without any agreement in that regard from the respondents, and therefore without making any effort to comply with the service requirements set forth in Rule 16 of the Rules of Civil Procedure. That in turn led to a dispute about whether and when the Respondents were obliged to respond to the proceeding in a formal way; e.g., with Mr Hamza demanding the filing of notices of appearances “forthwith” and expressing a view that the Respondents improperly were delaying matters in that regard, while at least some of the Respondents understandably were of the view that their obligation to file a formal notice of appearance would not be triggered unless and until there was proper service of Mr Hamza’s application material. In the meantime, a least some of the respondents also were making inquiries to address possible reporting obligations, (i.e., vis-à-vis their insurers), and possible arrangements for representation in the litigation.[^2] Over time, at least some of the respondents essentially waived the requirement of formal service of Mr Hamza’s notice of application; e.g., erring on the side of caution by choosing to file a notice of appearance prior to January 22, 2021, despite having received Mr Hamza’s notice of application only by email.

2. Another dispute arose from the apparent failure of Mr Hamza to indicate in his notice of application, as required by Rule 38.04(c) of the Rules of Civil Procedure, the documentary evidence he intended to use and rely upon in support of his application. Nor did Mr Hamza provide any such material to the Respondents with his notice of application, or thereafter serve the Respondents with any application record and factum as required by Rule 38.09(1) of the Rules of Civil Procedure. Mr Hamza instead indicated in his notice of application that “documentary evidence will depend on the respondents’ answer to this application” and that he would “reply to any specific points they raise”. In essence, Mr Hamza was indicating his contemplation of a procedure contrary to that required by Rules of Civil Procedure to address applications in a fair and orderly way; i.e., by demanding that the Respondents provide him with their evidence and facta before he filed any evidence or factum in reply, and only in reply. That in turn led to a further dispute, reflected in subsequently email communications, wherein Mr Hamza made repeated demands for the Respondents’ material so that he could finalize and deliver further material of his own, (including a factum), while the Respondents understandably were making inquiries about whether and when Mr Hamza would supply his application material first, as contemplated by the Rules of Civil Procedure.

ix. The above disputes in turn resulted in a somewhat haphazard service and filing of further material, and further disputes in that regard, in the days immediately before the scheduled return of Mr Hamza’s application on January 22, 2021; disputes leading in turn to a situation where neither the parties nor the court had all of the material upon which parties intended to rely in relation to the scheduled hearing. Without limiting the generality of the foregoing:

1. Counsel for Mr Rocheleau, (Mr Moore), filed a responding “Application Record”, a factum, and a book of authorities – all of which reached the court office, and in turn were provided to me shortly before regular motions court on January 22, 2021. The aforesaid responding “Application Record” did not contain any notice of cross-application or notice of motion, initiating or setting out any formal request for relief. However, the material filed on behalf of Mr Rocheleau effectively indicated an intention to ask the court for dismissal of Mr Hamza’s application for various reasons. In particular:

a. It was emphasized that Mr Hamza had failed to serve any material in support of his notice of application, such that there was no evidence before the court to support any of the “purported claims” set forth in that notice of application.

b. It was said that, insofar as the notice of application could be construed as asserting a claim for defamation, based on the complaint filed by Mr Rocheleau with the LSO, such a claim should be dismissed because evidence and authorities filed on behalf of Mr Rocheleau established that the statements in such a complaint had been made on an occasion of qualified privilege.

c. It was said that the court should consider dismissing the application pursuant to Rule 2.1 of the Rules of Civil Procedure; i.e., the rule which permits the court, on its initiative pursuant to Rule 2.1.01(1), or at the request of a party pursuant to Rule 2.1.01(6), and through use of a summary procedure set forth in the rule, to “stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of process of the court”.[^3]

2. Counsel for the LSO apparently served and filed no evidence, but did deliver a factum focused on consideration of Rule 2.1 of the Rules of Civil Procedure. For reasons unknown, that factum nevertheless did not reach the court office or me prior to the hearing on January 22, 2021, and I have not seen it.

3. Counsel for Mr Aderonmu apparently delivered a responding Application Record on his behalf, including a short affidavit describing or attaching his relevant complaint to the LSO. For reasons unknown, that record also did not reach the court office or me prior to the hearing on January 22, 2021, and I have not seen it.

4. Mr Hamza swore an affidavit on January 19, 2021, which made its way into the court file, and which was provided to me shortly before the hearing on January 22, 2021. It nevertheless apparently had not been provided to all of the Respondents. As noted above, Mr Hamza did not serve or file a formal application record. Moreover, although Mr Hamza indicated in emails and during the hearing before me that he also had prepared a factum, that admittedly had not been provided to the Respondents or to the court, and I have not seen it. He also apparently had served a Notice of Constitutional Question, which also had not been filed with the court. I have not seen that either.

5. The material supplied to me by the court did not include, directly at least, any notice of appearance filed by any of the Respondents. However, through the responding “Application Record” filed on behalf of Mr Rocheleau, and the affidavit filed by Mr Hamza, the notices of appearance filed by the LSO, Mr Aderonmu and Mr Rocheleau effectively were before the court indirectly. The notice of appearance apparently filed by Ms Huggins was not, and I accordingly have not seen that notice although I was told it exists. Ms Soubas indicated that she had not yet filed any notice of appearance by the time of the hearing before me on January 22, 2021, but that she intended to file such a notice of appearance.

Hearing on January 22, 2021 – Further directions

[6] Given the circumstances outlined above, it was clear to me that the application brought by Mr Hamza, and the requests for relief dismissing the application essentially being advanced by some or all of the Respondents, could not proceed to a fair or effective substantive hearing on January 22, 2021. Without limiting the generality of the foregoing:

a. the parties did not have all the material on which other parties intended to rely;

b. the court did not have all the material on which the parties intended to rely; and

c. there realistically was no way all of the anticipated submissions, from at least four of the parties to this matter, could or would be completed within the maximum one hour allotted to the hearing of matters dealt with on “regular” motion days in London, such that the matter needed to be adjourned to a more extended special appointment hearing.[^4]

[7] All concerned nevertheless expressed a desire to have the matter dealt with expeditiously; Mr Hamza because he thought it self-evident that he was entitled to the relief he was seeking, and the respondents because they believed they would be entitled to summary dismissal of the application. In relation to the latter point, it was emphasized that the litigation was causing considerable anxiety for the respondents, who were young lawyers and law students, each of whom may very well not have applicable insurance coverage entitling them to a funded defence of this litigation.

[8] As noted above, I accordingly directed that the matter would be adjourned to a four-hour special appointment hearing on February 3, 2021. All counsel and self-representing parties confirmed that they would be available to participate in that hearing.

[9] As I indicated to the parties by way of interim preliminary observations, it seemed to me this matter arguably was being complicated by possible procedural irregularities, in turn preventing the underlying concerns from being addressed in a focused and proper manner. Without limiting the generality of the foregoing:

a. It was not immediately apparent to me that this matter should be proceeding by way of an application, rather than by way of an action commenced by a statement of claim. As I endeavoured to make clear to Mr Hamza, in that regard, the default rule set forth in Rule 14.02 of the Rules of Civil Procedure requires every proceeding in this court to proceed by way of an action, except where a statute or the Rules of Civil Procedure provide otherwise. The material filed by Mr Hamza did not identify or indicate reliance upon any particular statue or rule justifying his proceeding by way of an application rather than an action; i.e., justifying his commencement of litigation by a notice of application rather than a statement of claim. Nor am I aware of any such statute or rule. Certainly, this does not seem to be a matter “where it is unlikely that there will be any material facts in dispute requiring a trial”, as contemplated by Rule 14.05(3)(h). Even the limited material before me, and the submissions I received, make it clear that there are likely to be important factual disputes; e.g., in relation to such matters as whether statements made in complaints to the LSO were made on an occasion of qualified privilege, and whether such statements were motivated by possible malice negating the defence of qualified privilege. Moreover, there almost certainly will be additional disputes as to whether Mr Hamza has sustained and/or is entitled to the damages he seeks.

b. It accordingly seemed clear to me, even in the very preliminary stages of this proceeding, that failure to follow the apparently applicable and proper procedure mandated by Rule 14.02 was causing immediate practical difficulties. In particular:

i. It seemed clear that the Respondents were intent on arguing, inter alia, that the Mr Hamza’s application disclosed no reasonable cause of action, and/or that the claims advanced in the application, (at least insofar as they were claims capable of being characterized as proper claims for defamation), should be summarily dismissed as they presented, (having regard to evidence including that filed or to be filed by the defendants), no genuine issue requiring a trial.

ii. However, proceeding by way of an application rather than an action, (despite the approach apparently mandated by Rule 14.02 of the Rules of Civil Procedure), would seem to preclude application of Rule 21 and Rule 20, which are specifically designed to address such issues and arguments in an orderly and structured way. In particular, Rule 21 appears to focus on issues raised by a pleading in an action,[^5] and Rule 20 clearly applies only in the context of an action; e.g., insofar as it allows a “defendant”, (rather than a “respondent”), to move with supporting affidavit material, after delivery of a statement of defence, (e.g., a defence expressly pleading and relying upon qualified privilege in response to a defamation claim), for summary judgment dismissing all or part of a claim in a statement of claim, (as opposed to a claim in a notice of application).[^6]

iii. Rule 2.1, (intended to address litigation which may be frivolous, vexatious or otherwise an abuse of the court’s process), may apply in the context of applications as well as actions, but only because it expressly refers to the broader concept of “a proceeding”, which is defined by Rule 1.03 to mean “an action or application”. Similarly, Rule 25.11, (also allowing the court to strike court filings that are scandalous, frivolous, vexatious or an abuse of the court’s process), arguably may apply in the context of applications as well as actions, but only because it expressly extends the court’s powers in that regard to “a pleading or other document”, and the latter concept arguably is broad enough to include a notice of application or other material filed in support of an application. Even then, however, I note that Rule 25.11 obviously is found within the broader context of Rule 25 which, on its face, was intended to govern “pleadings in an action”; i.e., rather than pleadings in an application. In any event, neither Rule 2.1 nor Rule 25.11 is a vehicle intended to address issues focused on whether a pleading or proceeding discloses a cause of action or a genuine issue requiring trial.

c. As I noted during the course of the hearing before me on January 22, 2021, although some or all of the Respondents apparently intend to ask the court through their responding court filings to dismiss Mr Hamza’s application pursuant to Rule 2.1 of the Rules of Civil Procedure, such requests do not sit well with simultaneous efforts to file evidence and make submissions in that regard. Without limiting the generality of the foregoing:

i. Rule 2.1 sets forth, in Rule 2.1.01(3), a separate and specific summary procedure to be used when addressing the possibility of a proceeding being dismissed pursuant to that rule.

ii. That specified summary procedure does not contemplate or permit the filing of evidence; an approach consistent with the explicit threshold, set forth in Rule 2.1.01(1), that dismissal of a proceeding pursuant to the rule is warranted only where the proceeding “appears on its face” to be frivolous or vexatious or otherwise an abuse of the process of the court.

iii. That prescribed summary procedure also specifies the unique manner in which limited written submissions may be received by the court in relation to the possible dismissal of a proceeding pursuant to the rule, and does not contemplate or permit the making of any oral submissions in that regard.

iv. Rule 2.1 indicates that the summary procedure described therein may be set in motion by a defendant, (or any party), filing, with the court registrar, of a written request in that regard pursuant to Rule 2.1.01(6); a request which should be no more than one or two lines, referring to a case between the parties and nothing more.[^7] The provisions of Rule 2.1 clearly do not contemplate initiating the pursuit of relief under that rule by the filing of responding records or motions.

v. Consistent with such realities, this court has emphasized that, if a defendant finds it necessary to file documents and make submissions in support of a request for dismissal of a proceeding pursuant to Rule 2.1, and proceeds accordingly by the filing of evidence and facta rather than a simple request in accordance with Rule 2.1.01(6), the defendant should realize the case is not one to which the rule applies; i.e., because the proceeding does not “on its face” appear to be frivolous or vexatious or otherwise an abuse of the court’s process.[^8]

[10] For all these reasons, I invited the parties to consider the possibility of a voluntary procedural “reset”, before the already apparent complications were compounded unnecessarily, in turn causing further delay and/or wasted expense; i.e., a “reset” whereby the current application would be formally dismissed, (with the responding requests for relief falling away accordingly), without prejudice to the ability of Mr Hamza, if so advised, to pursue his requests for relief by way of an action commenced by a statement of claim.

[11] However, at least during the hearing before me, the parties were intent on having the litigation in its current format proceed as quickly as possible.

[12] Consistent with my indication to the parties that the matter necessarily would be adjourned to a special appointment hearing, and that I accordingly would leave substantive determinations raised by the application and responding material to the judge dealing with the application on its merits, I thereafter focused on efforts to ensure that the matter would be ready and organized for that contemplated special appointment hearing.

[13] In particular, I obtained further confirmation from the parties, and made further directions, in an effort to impose greater order on the existing proceeding, and ensure the availability of all relevant material when the matter comes before the judge presiding over the special appointment hearing now scheduled for February 3, 2021. In that regard:

a. The Applicant Mr Hamza confirmed that the material he initially intends to file in relation to his application, (i.e., subject to only to his right of reply), will be limited to the following:

i. a formal application record, which will incorporate the notice of application he already has provided to the Respondents, and his affidavit sworn on January 19, 2021, including the exhibits thereto;

ii. a factum; and

iii. the Notice of Constitutional Question he already has delivered.

b. Mr Hamza was directed to deliver the material referred to in the preceding sub-paragraph on or before January 25, 2021.

c. On behalf of the LSO, Ms Hensel and Mr Unrau indicated that the LSO intended to file the following material:

i. a possible responding record, depending on their receipt and review of Mr Hamza’s affidavit and factum;

ii. a possible motion record seeking relief pursuant to Rule 25.11; and

iii. a factum.

d. Ms Hensel and Mr Unrau were directed to deliver the material referred to in the preceding sub-paragraph on or before January 29, 2021.

e. On behalf of Mr Aderonmu, Ms Lewis and Mr McKenzie indicated that they intended to file the following material:

i. the responding record already served;

ii. a possible supplemental responding record, depending on their receipt and review of Mr Hamza’s affidavit and factum;

iii. a possible motion record seeking relief pursuant to Rule 25.11; and

iv. a factum.

f. Ms Lewis and Mr McKenzie were directed to deliver the material referred to in the preceding sub-paragraph on or before January 29, 2021.

g. As noted above, Ms Soubas indicated that she intended to deliver a formal notice of appearance in relation to this matter. She agreed to do so on or before January 26, 2021. At the time of the hearing before me, she did not contemplate filing any additional material, intending to rely instead on the material filed by other Respondents. In any event, she was directed to deliver any additional material, upon which she intended to rely, on or before January 29, 2021.

h. At the time of the hearing before me, Ms Huggins similarly indicated that she did not contemplate filing any additional material, (beyond the notice of appearance she already had delivered), and was intending to rely instead on the material filed by other respondents. In any event, she was directed to deliver any additional material, upon which she intended to rely, on or before January 29, 2021.

i. On behalf of Mr Rocheleau, Mr Moore indicated that he intended to file the following material:

i. the responding record already served;

ii. a possible supplemental responding record, depending on his receipt and review of Mr Hamza’s affidavit and factum;

iii. a possible motion record seeking relief pursuant to Rule 25.11;

iv. the factum and book of authorities already filed; and

v. a possible supplementary factum and book of authorities.

j. Mr Moore was directed to deliver the material referred to in the preceding sub-paragraph on or before January 29, 2021.

k. Mr Hamza was direct to file any material filed in proper exercise of a right of reply on or before February 1, 2021.

l. All parties consented to service of the aforesaid material by email, and confirmed their email addresses in that regard. In any event, I also have directed that service by such email shall be permitted, in relation to the above material, having regard to the time constraints.

Representation issues

[14] The email communications supplied to me with the material I received, prior to the hearing on January 22, 2021, included reference to a dispute, between the applicant Mr Hamza on the one hand and Mr Moore as counsel for Mr Rocheleau on the other, as to whether Mr Moore was entitled to continue representing Mr Rocheleau in this litigation.

[15] For present purposes, the evolution of that dispute generally may be described as follows:

a. On January 16, 2021, Mr Hamza sent an email to respondent counsel and Ms Huggins, in which Mr Hamza expressed frustration with what he perceived to be unreasonable delays in the filing of notices of appearance and provision of consent to late service of his factum. Mr Hamza characterized such perceived delays as “sharp practice” that might necessitate adjournment of his application.

b. On January 17, 2021, Ms Hensel responded with an email indicating, inter alia, that she disagreed with Mr Hamza’s allegation that the conduct to which he was referring constituted “sharp practice”.

c. On the same day, (January 17, 2021), Mr Hamza responded by sending an email only to Ms Hensel and Mr Moore, repeating his assertion that the conduct he was complaining about constituted “sharp practice”.

d. On the same day, (January 17, 2021), Mr Moore responded with an email, (apparently sent only to Mr Hamza), denying that a refusal to consent to late service of a factum for articulated reasons, (e.g., inability to consent to late service of a factum that had not been provided, insofar as doing so might be prejudicial to client interests), was “sharp practice”. In the same message, Mr Moore indicated, inter alia, his view that it was a breach of the Rules of Professional Conduct for a lawyer to accuse other lawyers of sharp practice where grounds for such an accusation did not exist, and that such conduct was a type of “professional blackmail”; i.e., conduct intended to intimate opposing counsel, thereby making them more amenable to acceding to inappropriate demands. In his concluding remarks, Mr Moore indicated that he was prepared to excuse some lack of familiarity “with the normal practices and courtesies of the litigation bar”, as he understood that Mr Hamza did not “regularly practice as a litigator”, but that there was a “limit to [his] tolerance and [Mr Hamza was] rapidly approaching it”.

e. On the same day, (January 17, 2021), Mr Hamza sent an email to Mr Moore indicating, inter alia, that he perceived Mr Moore’s concluding remarks as “a threat, not argument”. Mr Hamza went on to indicate that Mr Moore no longer had Mr Hamza’s “consent to communicate”, opined that Mr Moore accordingly had an obligation to inform his client Mr Rocheleau “to change lawyers”, and that Mr Hamza therefore expected to receive a Notice of Change of Lawyer “forthwith”.

f. On the same day, (January 17, 2021), Mr Moore responded with an email to Mr Hamza, (apparently copied to Mr McKenzie, one of the lawyers representing Mr Aderonmu), indicating, inter alia, that he (Mr Moore) remained counsel of record for Mr Rocheleau, that he (Mr Moore) therefore was obliged to communicate with Mr Hamza to represent his client Mr Rocheleau, and that he (Mr Moore) accordingly did not require Mr Hamza’s permission in that regard.

g. On the same day, (January 17, 2021), Mr Hamza sent a further email to Mr Moore, copied directly to Mr Hamza’s client and to Mr McKenzie. In that email, Mr Hamza reiterated his view that “last minute” service of notices of appearance and/or refusal to consent to late service of Mr Hamza’s factum constituted sharp practice. Amongst other comments, Mr Hamza explained why he found Mr Moore’s comments offensive, and reiterated his demand that Mr Moore “get off the record”.

h. On January 18, 2021, Mr Moore responded with an email that, inter alia, consented to the late filing of Mr Hamza’s factum, and reiterated that he (Mr Moore) would remain counsel of record for Mr Rocheleau.

[16] In my view, neither the timing of notice of appearance delivery or hesitation to consent to late filing of Mr Hamza’s factum in this matter approached the type of conduct that should be regarded or characterized as “sharp practice”. To the contrary, the conduct of the respondents was entirely proper and understandable in light of conditions Mr Hamza himself effectively had created. In particular:

a. As noted above, Mr Hamza chose to circulate his notice of application, (issued on or about December 23, 2020, and indicating a return date less than a month later on January 22, 2021), by the unilateral sending of an email; i.e., without any of the respondents having consented to service of the originating process by email, and without obtaining court approval of such an alternative to the service otherwise required by Rule 16 of the Rules of Civil Procedure. In the circumstances, the respondents had no obligation to respond “forthwith” with delivery of a notice of appearance, pursuant to Rule 38.07 of the Rules of Civil Procedure, in response to an originating process that had not been properly served.

b. Mr Hamza had an obligation, pursuant to Rule 38.09(1)(a) of the Rules of Civil Procedure, to serve his application record and factum at least seven days before the scheduled hearing of his application. He failed to do so. Insofar as Mr Hamza asserted a right to delay service of his factum until he had received and review the respondents’ material, that simply is not the manner of proceeding contemplated and mandated by Rule 38. An applicant bringing an application is required to provide his material first so that responding parties know the case they are required to meet, in accordance with the fundamental principles of justice. Matters do not proceed the other way around, as suggested by Mr Hamza. In the circumstances, it was entirely appropriate for the respondents to be reticent about consenting to the late service of material Mr Hamza apparently was still refusing to share while demanding such consent.

c. In my view, it therefore also was appropriate for responding counsel to deny Mr Hamza’s allegations of sharp practice, and for Mr Moore to caution Mr Hamza about the making of such allegations when they were unfounded in the circumstances.

[17] As I indicated during the course of the hearing before me on January 22, 2021, in my view there was nothing in the conduct of Mr Moore requiring his removal as counsel of record for Mr Rocheleau in this matter. In that capacity, Mr Moore has the right, and indeed the obligation, to communicate with the self-representing Mr Hamza in relation to this litigation.

[18] Moreover, as I also indicated to all concerned, if there are suggestions that the litigation has been approached in an improper manner by anyone, (e.g., through unreasonable or abusive behaviour), such allegations may be addressed appropriately in the course of cost submissions; e.g., having regard to Rule 57.01(1)(e), (f) and (g) of the Rules of Civil Procedure.

Costs

[19] All costs of the attendance before me were and are expressly reserved to the judge deciding the underlying application and any responding requests for relief on their substantive merits.

Justice I.F. Leach

Date: January 25, 2021

[^1]: The latter term, fortunately used much less frequently in Canada than in other parts of the world, is an extremely offensive derogatory word; one usually employed pejoratively to describe those perceived by the user to be foreigners and immigrants, and particularly those whose skin is not white. [^2]: By the time of the hearing before me, on January 22, 2021, a Notice of Appearance apparently had been delivered by or on behalf of each of the Respondents apart from Ms Soubas apparently had delivered a Notice of Appearance. [^3]: See Rule 2.1.01(1) of the Rules of Civil Procedure. [^4]: Together, the confirmation filed by the Applicant Mr Hamza, and the confirmation filed by counsel for Mr Rocheleau, indicated that hearing of issues relating to this matter would require only 30 minutes; something that no doubt explains why court staff understandably indicated that the matter was expected to be heard and decided on its substantive merits during “regular” motions court on January 22, 2021. In my view, that collective time-estimate was woefully deficient, having regard to the highly contentious nature of this matter and the issues to be addressed and decided. Those preparing and filing confirmations in the future need to take much greater care to ensure that indicated hearing time estimates are realistic. [^5]: Rule 21.01(1)(b) of the Rules of Civil Procedure refers to striking out a “pleading” on the ground it discloses no reasonable cause of action, and Rule 1.03 of the Rules of Civil Procedure does not provide an express definition of the word “pleading”, making it clear that the term is intended to refer to the pleadings in an action. However, Rule 21.01(1)(a) provides additional context, expressly referring to “a pleading in an action”, and reported authorities applying the rule seem focused on requests to strike statements of claim, statements of defence, and third party claims and defences in whole or in part. Rules 25 dealing with “Pleadings in an Action”, and Rule 26 dealing with “Amendment of Pleadings”, similarly focus on statements of claim, statements of defence and third party claims and defences; i.e., pleadings in an action. [^6]: See Rule 20.01(3) of the Rules of Civil Procedure. [^7]: See, for example, Covenoho v. Ceridian Canada, 2015 ONSC 5148. [^8]: See, for example, Kyriakopolous v. Lafontaine, 2015 ONSC 6067.