Court File and Parties

COURT FILE NO.: CV-19-1740 DATE: 2021-09-09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Omar Shabbir Khan, Plaintiff AND: Law Society of Ontario, Deborah McPhadden, Glenn Stuart, Leslie Maunder, Nina Iwanowich, Hamilton Police Services and Kevin Dhinsa, Defendants

BEFORE: Mills J.

COUNSEL: Omar Khan, Self-Represented P. Le Vay, Z. Al-Khatib, for the Law Society Ontario defendants (Law Society of Ontario, Deborah McPhadden, Glenn Stuart, Leslie Maunder and Nina Iwanowich) A. Whitworth, for the Hamilton Police Services Board and Kevin Dhinsa defendants (watching brief)

HEARD: June 21, 2021

ENDORSEMENT

[1] The plaintiff was disbarred by the Law Society of Ontario (“LSO”) after an investigation into his billing practices to Legal Aid Ontario and following a hearing before the Law Society Tribunal (“LST”) to determine whether the plaintiff had committed acts of professional misconduct. The plaintiff appealed the LST decision to the Law Society Appeal Tribunal (“LSAT”). The appeal was dismissed. The plaintiff has appealed that decision to the Divisional Court which has yet to hear the matter. At this time, the LST finding of professional misconduct is the prevailing decision.

[2] This action was initially brought against sixteen defendants but was dismissed under Rule 2.1 of the Rules of Civil Procedure as against all defendants but for the LSO, Deborah McPhadden, Glenn Stuart, Leslie Maunder and Nina Iwanowich, collectively the “LSO Defendants”. Against the LSO Defendants, the plaintiff seeks “damages at large” for alleged infringements of the Law Society Act, the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code, the Ontario with Disabilities Act, the Accessibility for Ontarians with Disabilities Act and the Freedom of Information and Protection of Privacy Act, as well as “damages at large” for negligence, entrapment, deceit, malfeasance in pubic power, abuse of power, abuse of process, discrimination, breach of ethics, professional malpractice, defamation and intentional infliction of mental suffering in the LSO investigation and the conduct of the LST hearing. The plaintiff also seeks special damages, exemplary and aggravated damages, punitive damages, interest, and costs. The plaintiff conceded the claim for malicious prosecution is premature and he requests that it be withdrawn. The Statement of Claim is 213 paragraphs over 74 pages with 76 footnotes. It references evidence, online documents, legislation, and case law.

[3] The LSO Defendants have brought this motion to strike out the Statement of Claim as disclosing no reasonable cause of action and an abuse of process pursuant to Rule 21 and Rule 25 of the Rules of Civil Procedure. They seek an order to strike without leave to amend.

Does the Statement of Claim disclose a reasonable cause of action against the LSO Defendants?

[4] The law is well settled that a Statement of Claim should be struck out where, assuming the facts pleaded are true, it is plain and obvious that the claim is certain to fail because it discloses no reasonable cause of action (Rule 21.01(1)(b) Rules of Civil Procedure; Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959). It is a high threshold and a difficult test to meet. On a motion to strike, the defendant must demonstrate the claim has no possibility of success; the plaintiff is not required to establish the claim will succeed (Addison Chevrolet Buick GMC Ltd. v. General Motors of Canada Ltd., 2016 ONCA 324). If there is even a slim chance the claim might succeed, it should not be struck out. Only in the clearest of cases, where the court is satisfied that the case is beyond doubt, should the plaintiff be deprived of the opportunity to prove the claims asserted (Atlantic Steel Industries, Inc. v. Cigna Insurance Co. of Canada, 1997 CanLII 12125 (ON SC), [1997] O.J. No. 1278, 33 O.R. (3d) 12 (ONCA)). A generous approach is to be taken, allowing novel but arguable claims to proceed to trial; hopeless claims however are to be eliminated to promote litigation efficiency in time and costs, and to reduce the strain on limited judicial resources (R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, at paras. 19-21).

[5] The pleadings must disclose a cause of action that is founded in law. The material facts pleaded, which are taken to be proven unless they are patently ridiculous or based on assumptions or speculative conclusions that are manifestly incapable of proof, must support a reasonable and recognizable cause of action with some chance of success (Robson v. Law Society of Upper Canada, 2016 ONSC 5579 at paras. 23-24; Miguna v. Ontario (Attorney General) (2005), 2005 CanLII 46385 (ON CA), 262 D.L.R. (4th) 222 (ONCA) at para. 18).

[6] The claims of negligence made by the plaintiff against the LSO Defendants disclose no reasonable cause of action. In section 9 of the Law Society Act, the LSO, its agents and employees are granted statutory immunity 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 the Act, or for any neglect or default in the performance or exercise in good faith of any such duty or power. The LSO Defendants are protected against civil action provided they acted with good faith in the exercise of their duties. Mere negligence is insufficient to establish liability. There must be an absence of good faith or the existence of “bad faith”, involving malice or intent, to properly plead a cause of action against the LSO Defendants (Conway v. L.S.U.C., 2016 ONCA 72 at para. 22).

[7] Statutory immunity is necessary to permit the LSO to undertake its regulatory and public law duties (Edwards v. L.S.U.C., 2001 SCC 80, [2001] 3 SCR 562 at paras. 14 & 17). Absent bad faith, the LSO, its agents, and employees cannot be subjected to private legal action in respect of the performance of their duties or the exercise of their powers. This includes the undertaking of investigations and the conduct of disciplinary hearings (French v. L.S.U.C. (1975), 1975 CanLII 40 (ON CA), 9 O. R. (2d) 473 (CA)).

[8] With respect to punitive damages, bad faith or malice requires proof of the intention to harm; mere recklessness is not sufficient. Outside of the realm of punitive damages, bad faith may be established by demonstrating recklessness or serious or extreme carelessness such that the actions taken may be viewed as an actual abuse of power. “Gross or serious carelessness is incompatible with good faith” (Finney v. Barreau du Québec, 2004 SCC 36, [2004] 2 S.C.R. 17 at paras. 37-40).

[9] The plaintiff pled guilty to criminal charges laid in respect of the same conduct that was the subject of the LSO investigation, and was granted a conditional discharge on July 27, 2017 which conditions were satisfied on July 27, 2020. By the terms of its mandate, the LSO was legally required to undertake the investigation and is immune from civil proceedings for having performed its statutory function. The LST hearing proceeded on an agreed statement of facts, produced at a time when the plaintiff had legal counsel acting on his behalf.

[10] The Statement of Claim is replete with bald allegations of bad faith on behalf of the LSO Defendants, but no particulars are pleaded to support the allegations. Equally, there are no particulars pleaded to support the allegations of intentional harm or recklessness made against the LSO Defendants. They too are mere bald allegations. Looking at the claim in its entirety, there does not appear to be any allegations of bad faith sufficiently particularized to ground a cause of action (Grand River Enterprises Six Nations Ltd. v. Attorney General (Canada), 2017 ONCA 526 at para. 97). Therefore, there is no basis upon which to take this matter outside of the statutory protections granted to the LSO Defendants.

[11] The claims of negligence and recklessness in the Statement of Claim disclose no reasonable cause of action and must therefore be struck. In particular, the claims asserted at paragraphs 1(a), (b), (e), (f), (h), (i) and (j), 19, 26, 27, 30, 74, 75, 78, 85, 93, 104, 158, 170 and 177 are hereby struck.

[12] To establish the tort of malicious prosecution, it must be shown that a proceeding initiated by the LSO was terminated in the plaintiff’s favour, and that there was no reasonable or probable cause to initiate the proceeding such that the LSO can be found to have acted with malice. The plaintiff has conceded he cannot succeed with his claim for malicious prosecution at this time and that it should be withdrawn. The LST decision did not terminate in the plaintiff’s favour although it is currently under appeal by the plaintiff. In accordance with the plaintiff’s request to withdraw the claims for malicious prosecution, paragraphs 1(b), 25, 79, 82, 83, 87, 132, 157 and 180 shall be struck.

[13] The plaintiff asserts a claim for misfeasance in public office. To establish this intentional tort, there must be “(i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff” (Odhavji Estate v Woodhouse, 2003 SCC 69, at para 32). There is no requirement for a breach of a statutory duty to establish a claim for misfeasance in public office. If the conduct of a public officer is done with the intent to harm, it may be found to be unlawful (Grand River Enterprises Six Nations Ltd. v Attorney General (Canada), supra at para 81).

[14] The plaintiff submits the LSO Defendants accused him of malingering, and with bad faith they ignored the LSO Mental Health Strategy in their quest to ensure his license to practice law was revoked. The LSO Defendants submit that the allegations of abuse of public office are more in line with the tort of malicious prosecution.

[15] The allegations in the Statement of Claim repeatedly assert the LSO Defendants acted in bad faith and with an improper purpose by pursuing the investigation with the intention of destroying the plaintiff’s career and livelihood as a lawyer, and his reputation in the community thereby causing him emotional distress and mental duress. These are allegations in respect of the tort of malicious prosecution. They are not allegations to support a claim of misfeasance in public office.

[16] The Statement of Claim fails to disclose a reasonable cause of action in respect of the tort of misfeasance in public office. Therefore, paragraphs 1(l), 30, 43 and 78 shall also be struck.

[17] The plaintiff claims the LSO Defendants have failed to comply with legislation, policies and procedures, specifically the Ontario Human Rights Code, the Ontarians with Disabilities Act, 2001, the Accessibility for Ontarians with Disabilities Act, and the Freedom of Information and Protection of Privacy Act (“FIPPA”). He has also claimed the LSO Defendants have violated the provisions of the Law Society Act, the Rules of Professional Conduct, and the LSO Mental Health Strategy paper. As there is no nominate tort of statutory breach, the breach of a statutory obligation can only give rise to a right of recovery through civil action if it is expressly provided for in the statute (Hodge v. Neinstein, 2017 ONCA 494, at para. 59). None of these statutes or policies provide for a right of recovery through civil action.

[18] Moreover, the allegations related to the various breaches of the above noted legislation are without sufficient specificity to understand the precise nature of the alleged breaches. The plaintiff lists many perceived grievances and then baldly states the LSO Defendants are then in violation of various statutes and policies. There are no particulars offered to identify how or what provisions of the statutes or policies have allegedly been violated.

[19] The paragraphs of the Statement of Claim alleging a failure to comply with statutes, policies or procedures shall be struck as failing to disclose a reasonable cause of action.

[20] In the Overview section of the Statement of Claim, the plaintiff alleges violations of s. 8 and 24 of the Charter against all defendants. At paragraph 1 of the Statement of Claim, where the particular claims against the LSO defendants are identified, the plaintiff simply alleges a claim for damages at large pursuant to pursuant to s. 24(1) and (2) of the Charter for the infringement of his rights. There is no specificity as to the alleged breaches of the Charter or of the infringement of rights.

[21] In his materials for this motion and in his oral submissions, the plaintiff alleges he was discriminated against by the LSO Defendants, thereby violating his Charter rights. The plaintiff alleges his right to earn a livelihood was attacked contrary to s. 6(2)(b), his right to remain silent was attacked contrary to s. 7, his right to privacy and freedom from unreasonable search and seizure were attacked contrary to s. 8, his presumption of innocence was ignored contrary to s. 11(d), and equality rights were attacked contrary to s. 15. The plaintiff submits the strategy and approach of the LSO Defendants was one of animus designed to intentionally harm the plaintiff’s reputation and career.

[22] To obtain constitutional or public law damages for breaches of the Charter, one must prove i) there has been a breach of the Charter, ii) damages are a just and appropriate remedy that would compensate, vindicate or deter future breaches, and iii) that there are no countervailing factors (such as alternate available remedies) to defeat the considerations supporting an award of damages (Vancouver (City) v. Ward, 2010 SCC 27).

[23] Reading the Statement of Claim generously and in whole, I am not satisfied there are sufficient facts pleaded to support a claim that the LSO Defendants breached any of the plaintiff’s Charter rights. The facts which have been pleaded state that the plaintiff refused to attend an interview with the LSO, exercising his right to remain silent. There are no other facts pleaded to support the plaintiff’s allegations of an infringement of his Charter rights, as expressed in the Statement of Claim or on this motion.

[24] Failing to meet the threshold issue of there being sufficient facts to support a claim with respect to a breach of the Charter, the plaintiff has no claim to Charter damages that could stand a chance of success. There is no reasonable cause of action in this regard. The plaintiff’s claims with respect to an infringement of his rights and for Charter based damages are struck out.

[25] The plaintiff also claims a violation of his informational privacy. He submits the bad faith conduct of the LSO Defendants satisfies the test for the tort of intrusion by seclusion. He claims the conduct of the LSO Defendants also breached his FIPPA rights.

[26] In order to establish liability for the tort of intrusion by seclusion, it must be shown that the defendant’s conduct was intentional, invading without lawful jurisdiction the plaintiff’s private affairs or concerns, and that a reasonable person would regard the intrusion as highly offensive, causing distress, humiliation or anguish (Jones v. Tsige, 2012 ONCA 32, at para. 71). The plaintiff submits that this case ought to be distinguished because it is not a case dealing with a human rights accommodation request. I disagree. Jones v. Tsige sets out the proper test to be met for the tort. If the facts, as alleged by the plaintiff do not satisfy the test, the claim stands no chance of success and ought to be struck.

[27] The allegations made by the plaintiff to support the claim for violation of his informational privacy relate largely to the publication of his disbarment following the LST hearing, and the use by the LSO Defendants of his medical information during the investigation process for the purposes of obtaining an independent medical expert report. In the absence of a confidentiality order, the LST proceedings are public and their decisions are subject to publication. The plaintiff produced and relied on his own medical evidence in defence to the allegations of misconduct made by the LSO. By doing so, he has waived the right to privacy over those medical records for the purposes of the LSO investigation and the LST/LSAT hearings. Further, the Law Society Act authorizes the LSO and its representatives to disclose confidential information when required in the proper administration of the Act or where necessary in connection with a proceeding conducted under the Act (s. 49.12(2)(a) and (b)). Based on the facts alleged, there is no unlawful invasion into the plaintiff’s privacy pursuant to FIPPA and the claim for the tort of intrusion upon seclusion is struck as disclosing no reasonable cause of action.

[28] The plaintiff asserts a claim for defamation. He alleges the LSO Defendants falsely accused him of malingering, and the LSO permitted the publication of the LST decision which allegedly contains inaccurate information in a chart attached to the decision.

[29] To establish defamation, the defendant must have made a defamatory statement referring to the plaintiff, and the words must have been communicated to at least one other person (Grant v. Torstar Corp., 2009 SCC 61 at para. 28). While the precise words communicated do not need to be quoted, the particulars of the alleged defamation must be pled with a high level of specificity (The Catalyst Capital Group Inc. v. Veritas Investment Research Corporation, 2017 ONCA 85 at para. 25).

[30] There is no specificity with respect to the alleged defamatory statements related to the malingering accusation, other than they are contained in the materials filed by the LSO Defendants with the LST in advance of the disciplinary hearing. As noted above, in the absence of bad faith, the LSO Defendants are provided with statutory immunity by s. 9 of the Law Society Act. Other than bald allegations, there are no material facts to support the allegation of bad faith as against the LSO Defendants. They are entitled to statutory immunity with respect to the drafting of their materials. Further, the Law Society Act expressly permits the publication of the record for LSO proceedings.

[31] In his submissions, the plaintiff relies on allegations of prosecutorial misconduct to support his claims of defamation. He has conceded there is no reasonable cause of action for prosecutorial misconduct at this time. As such, there is no reasonable cause of action for the plaintiff’s allegations of defamation. The claim for defamation is therefore struck.

Is the Statement of Claim an abuse of process?

[32] The LSO Defendants submit the Statement of Claim amounts to a collateral attack on the LST and LSAT decisions, and therefore ought to be dismissed as an abuse of process.

[33] Rule 25.11 allows a claim to be struck if it is frivolous, vexatious or an abuse of process. A claim that fails to plead the material facts is a bald pleading and will be struck as being frivolous and vexatious, particularly in cases where bad faith is alleged (Singh-Boutilier v. Ontario College of Social Workers and Social Service Workers, 2015 ONSC 5297 at paras. 67-68 and 79-80). A pleading that is effectively a collateral attack on a prior decision of a court of administrative tribunal will be struck as an abuse of process (Wolf v. Attorney General (Ontario), 2012 ONSC 72 at paras. 53-55; Ricci v. Law Society of Upper Canada, 2017 ONSC 6942 at para. 16).

[34] The substance of the plaintiff’s claim is to challenge the decisions of the LST and the LSAT. The plaintiff’s recourse, of which he has availed himself, is an appeal to the Divisional Court. To pursue an action claiming damages for perceived injuries suffered as a result of the investigation, the evidence relied upon in the hearings and the decisions made by the LST and the LSAT amounts to a collateral attack and is therefore an abuse of process. The plaintiff is seeking to relitigate the matters that were properly before the LST and the LSAT. The summary of the plaintiff’s claim, outlined in paragraphs 19 to 31 of the Statement of Claim, raises the very same issues as were raised in the LST and LSAT hearings.

[35] As noted above, the pleading is replete with bald allegations of bad faith on the part of the LSO Defendants. For this reason as well, the claim shall be struck as being frivolous, vexatious and an abuse of process.

Should the plaintiff be granted leave to amend his Statement of Claim?

[36] The decision to grant leave to amend a pleading is discretionary (Mortazavi v. University of Toronto, 2013 ONCA 655 at para. 3). Leave will be refused where it is clear further material facts cannot be pleaded to support the allegations made (Miguna v. Ontario (Attorney General, supra. at para. 22).

[37] The plaintiff submits that as a self-represented individual with disabilities, he ought to be granted an accommodation to correct any significant drafting deficiencies. The plaintiff submits that he suffers with severe psychosocial disabilities which manifest symptoms in unpredictable ways and that stress can intensify and debilitate the symptoms of his chronic mental disabilities. After the hearing concluded, the plaintiff filed a further affidavit dated July 7, 2021 to place before the court a medical report diagnosing the plaintiff with adult ADHD and recommending a change to the previously prescribed stimulant medication. The report did not address the plaintiff’s ability to respond to this motion, nor did it speak to any accommodations that should be considered. It may be admitted to the record, but the report has not been of any assistance to the court on this motion.

[38] Having determined the Statement of Claim is a collateral attack on the LST and LSAT decisions, and that the LSO Defendants have statutory immunity for their conduct, there is no prospect that an amended pleading could remedy or cure these defects. There are no additional material facts which the plaintiff knows to be true which could support the allegations made in the Statement of Claim. As such, leave to amend is refused.

[39] Therefore, the Statement of Claim is struck in its entirety as it relates to the LSO Defendants, without leave to amend.

Costs

[40] Having been entirely successful on this motion, the LSO Defendants are entitled to their costs of this motion. Costs Outlines were submitted by both parties following the hearing. The LSO Defendants seek $30,988.78 on a partial indemnity basis and $40,864.19 on a substantial indemnity basis, inclusive of fees, disbursements and HST for the motion and the prior adjournments requested by the plaintiff. The LSO Defendants were also called upon to file a Statement of Defence under threat the plaintiff would otherwise commence default judgment proceedings. This was entirely unreasonable in the face of this motion.

[41] Considering the factors outlined in Rule 57.01(1), I am satisfied the time spent and the costs incurred by the lawyers representing the LSO Defendants were reasonable and proportionate to the matters in issue. The Statement of Claim made bald but serious allegations of misconduct and bad faith on the part of the LSO Defendants in the exercise of their statutory duties. The claims have been struck in their entirety with respect to these defendants. Leave has not been granted to amend the pleading. The issues were complicated due to the prolix nature of the pleading, and they were important to the parties. The personal and professional reputations of the LSO Defendants were being impugned.

[42] The Costs Outline of the plaintiff indicates that if successful, the plaintiff would have sought $13,331.94 on a partial indemnity basis and $17,775.92 on a substantial indemnity basis as a self represented litigant. Although the amounts sought by the LSO Defendants are more than double that of the plaintiff, the costs are not unreasonable in the circumstances and must have been within the reasonable contemplation of the plaintiff. As noted above, they also include fees incurred to draft a statement of defence which was entirely unnecessary but for the unreasonable demands of the plaintiff.

[43] While I would otherwise be inclined to award substantial indemnity costs due to the serious allegations of misconduct made by the plaintiff, I am sympathetic to the plaintiff’s current personal and financial circumstances. He has been disbarred and is prohibited from working in his chosen profession. He claims to suffer from ongoing mental health issues. The plaintiff appears in the circumstances to have limited resources from which to pay a significant cost order. As such, costs are ordered on a partial indemnity basis in accordance with the LSO Defendants Cost Outline. The plaintiff shall forthwith pay $30,988.78, inclusive of fees, disbursements and HST, to the LSO Defendants.

[44] As the Hamilton Police Service and Dhinsa defendants filed no materials and made no submissions on this motion, participating only for observational purposes, there shall be no order as to costs for these defendants.

Justice J. E. Mills

Date: September 9, 2021