Court File and Parties
Court File No.: CV-21-00661053 Date: 2021-11-23 Superior Court of Justice - Ontario
Re: Ahmad Mohammad, Plaintiff And: Sabha Sajjad-Hazai and Danielle Wilson, Defendants
Before: Chalmers, J.
Counsel: A. Mohammad, in person I. Sinke, for the Defendant, Danielle Wilson No one appearing, for the Defendant, Sajjad-Hazai
Heard: By Videoconference, October 29, 2021
Endorsement
Overview
[1] The Plaintiff brings this action against his former lawyer, Sabha Sajjad-Hazai and Danielle Wilson. Ms. Wilson is an employee with the Law Society of Ontario (LSO) in the role of “Counsel Intake & Resolution”. The Plaintiff brought a complaint against Ms. Sajjad-Hazai to the LSO. Ms. Wilson was assigned the responsibility for responding to the Plaintiff’s complaint. Following her investigation, the complaint was dismissed.
[2] Ms. Wilson brings this motion pursuant to Rule 21.01(1)(b), to strike the claim as against her, on the basis that the claim does not disclose a reasonable cause of action. Ms. Wilson argues that as an employee of the LSO she has statutory immunity for acts done in the good faith execution of her duties. Ms. Wilson states that she does not owe a duty to the Plaintiff and in any event, the Plaintiff suffered no damages as a result of her alleged conduct. Finally, Ms. Wilson argues that the claim is grossly deficient and does not comply with the rules of pleading.
[3] For the reasons set out below, I dismiss the claim as against Ms. Wilson, without leave to amend.
Facts as Pleaded in the Statement of Claim
[4] No evidence is admissible on a motion pursuant to R. 21.01. The facts as pleaded are assumed to be true, unless patently ridiculous or incapable of proof: Darmar Farms Inc. v. Syngenta Canada Inc., 2019 ONCA 789, at para. 11. The court is to consider only the pleading and any documents specifically referred to and relied on in the pleading: Web Offset Publications Ltd. v. Vickery (1999), 1999 4462 (ON CA), 43 O.R. (3d) 802 (ON CA) at para. 3.
[5] The relevant facts are set out in the Statement of Claim and in Ms. Wilson’s letter to the Plaintiff dated March 2, 2021. The allegations in the Claim are not clearly set out. The Claim does not comply with the requirement that the pleading shall be divided into numbered paragraphs and that each allegation shall be contained in a separate paragraph: R. 25.02.
[6] The Statement of Claim is fairly brief. I reproduce the Claim in its entirety:
SYNOPSIS
“The above-mentioned defendant didn’t respect their affirmation when they called to the bar….
They swore that they will conduct all matters and proceedings diligently and faithfully. They swore not to pervert the law to favour or prejudice any person. They swore to conduct themselves truly, honestly and with integrity. They swore to improve the administration of justice. They swore to uphold the rule of law and to uphold the interests, rights and freedoms of all persons according to the constitution and the laws of Canada and of the Province of Ontario….
But, they did not….”
On March 3rd, 2021, I received a decisive letter from Ms. Wilson where she justified my previous lawyer’s behaviors. Ms. Wilson wrote the following:
Withdrew from representation without cause or reasonable notice: You raise concerns about the Lawyer withdrawal from representation, particularly given that you had advised her at the outset that you have PTSD and Asperger’s Syndrome. As part of her response to the Law Society, the Lawyer provided a copy of her statement to Peel Police. In the statement, she lists the multiple communications that she received from you, including emails with attached photos of rashes and “bleeding body parts” and audio files of you screaming. Ultimately, the Lawyer advises that she asked you to stop contacting her and she terminated the retainer. In the circumstances, the evidence does not support your allegation that the Lawyer withdrew from representation without cause. Additionally, there is no evidence of any upcoming hearings or events in your legal matter that would affect the notice period or cause prejudice to you as a result of the withdrawal. Accordingly, the Lawyer’s conduct does not raise professional conduct concerns. ------------------------------------------------------------------------------------
Here is my story:
On February 21st, 2020, my apartment 609-1760 main street west had been seriously attacked resulting in irregular heartbeats and massive disturbance against my auditory system that eventually led me to open the door to stop the mess. Two serious violations against the trespass property act were occurred in order to arrest me through false allegation. Later, I discovered that even the arrest happened without arrest warrant. During the arrest I had been seriously attacked by kicks in my back and my chest while I am laying in the floor to handle the damages. The attacks left me traumatized physically and psychologically. My sister, Esraa Mohamed, called 911 during the arrest because she thought they were gangsters not McMaster security members and a police officer.
I reported these voice recordings and the pictures to my lawyer, Sabha Sajjad-Hazai, and she terminated our contract accordingly, see the investigation above. Despite she continued to billing me, she roguishly reported me to the police stating that I am harassing her; so that I would receive more physical and psychological traumas. Without the presence of one of my friends who showed some evidence to the officers, I would be jailed, because I was extremely traumatized. I had lost a precious year and several jobs (tenure track assistant professor in neuroscience) because of her behavior.
Requested Relief:
To be determined by the justice.
[7] The Plaintiff pleads that Ms. Wilson sent a “decisive letter” on March 3rd, 2021, in which she justified Ms. Sajjad-Hazai’s behaviours. The letter is specifically referred to in the Claim.
[8] In the letter dated March 2, 2021, Ms. Wilson is identified as Counsel, Intake & Resolution with the LSO. She states that she completed her review of all the information provided by the Plaintiff in support of the complaint. She set out her explanation for concluding that Ms. Sajjad-Hazai’s conduct did not cause any professional conduct concerns. The Plaintiff was advised that the LSO will not be investigating the complaint further.
Analysis
Test for Motion to Strike
[9] Rule 21.01(1)(b) provides that a claim will only be struck if it is plain and obvious that the pleading discloses no reasonable cause of action. In R. v. Imperial Tobacco Ltd., 2011 SCC 42, the Supreme Court provided the following direction when a court is considering a dismissal of an action pursuant to R. 21.01:
[….] A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action. Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial. [citations omitted]
The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial: at paras. 17 and 19.
[10] The power to strike a claim must be exercised with great care. However, if it is clear that the claim is frivolous or vexatious and has no prospect of success, it would be inappropriate to permit the proceeding to be maintained: Rex ex rel. Tolfree v. Clarke, 1943 90 (ONCA), [1943] O.R. 501 (C.A.), at p. 515 as quoted in Hunt v. Carey Canada Inc. 1990 90 (SCC) at para. 25.
Immunity from any Claim for Damages
[11] Section 9 of the Law Society Act, R.S.O. 1990, c. L.8 provides immunity to all employees of the LSO for acts done in carrying out their duties in good faith.
No action or other proceeding 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.
[12] The purpose of the immunity provision is to ensure that the LSO may undertake its regulatory and public law duties. Absent bad faith, LSO employees cannot be subject to an action with respect to the performance of their duties or the exercise of their powers, including the undertaking of investigations: Khan v. Law Society of Ontario, 2021 ONSC 6019, at para.7. The LSO and its employees are not liable for errors in the exercise of its discretion as long as they acted in good faith and without malice: Boldt v. Law Society of Upper Canada, 2010 ONSC 3568, at para. 29.
[13] The Plaintiff alleges that Ms. Wilson failed to properly investigate his complaint against Ms. Sajjad-Hazai. In the synopsis he pleads that Ms. Wilson failed to “conduct all matters and proceedings diligently and faithfully”.
[14] Ms. Wilson is immune from civil proceedings arising from claims arising out of the good faith exercise of her duties as an employee of the LSO. The Plaintiff does not specifically allege bad faith. There are no material facts pleaded to support a claim of bad faith or that Ms. Wilson was acting with malice. There is a positive obligation on a plaintiff to plead bad faith in order to pre-emptively defeat the immunity provision in the Law Society Act. The claim must be pleaded with precision and full particulars: Potis v. The Law Society of Upper Canada, 2019 ONCA 618, at paras. 24.
[15] Even if there was a cause of action available against Ms. Wilson for dismissing the complaint, the Plaintiff is unable to establish that he sustained any damages. The Plaintiff is a complainant and not a lawyer subject to discipline by the LSO. If the complaint was successful, it would result in disciplinary action or investigation of the lawyer and would not result in an award of damages to the complainant. The Statement of Claim does not include a prayer for relief and does not provide any particulars with respect to the damages claimed by the Plaintiff.
[16] The Statement of Claim also does not comply with the rules of pleading set out in R. 25.02. The Claim does not set out allegations in separate numbered paragraphs. The Claim does not contain a concise statement of the material facts to support a cause of action. The Claim does not include a prayer for relief. As a result, Ms. Wilson is left guessing to the claim she is expected to meet: Cerqueira v. Ontario, 2010 ONSC 3954, at para. 14.
[17] I conclude that the Statement of Claim does not disclose a reasonable cause of action against Ms. Wilson. I strike the Plaintiff’s claim as against Ms. Wilson.
Leave to Amend
[18] The decision to grant leave to amend is discretionary. As a general rule, when a claim is struck, the plaintiff is granted leave to amend, unless the claim contains a “radical defect” incapable of being cured by an amendment: Roche v MacLeod Law Firm, 2018 ONSC 2760, at para. 28.
[19] Ms. Wilson argues that no amendment is possible that will cure the basic defect that there is no cause of action available against her in the circumstances of this case. The Plaintiff claims that Ms. Wilson is liable because of the way the investigation was conducted and her decision to dismiss the complaint. Ms. Wilson is an employee of the LSO charged with the responsibility of investigating complaints. Employees of the LSO are immune from liability for claims arising out of investigations carried out in the good faith exercise of their duties.
[20] An employee of the LSO is not immune if the employee is acting in bad faith or with malice. In the Statement of Claim, there are no allegations of bad faith or malice and no material facts alleged to support such allegations. If there were material facts that would support an allegation of bad faith or malice, the Plaintiff was under a positive obligation to pre-emptively plead those facts to defeat the immunity provision: Potis, at paras. 21, 22 and 28. He failed to do so.
[21] There is an “unanswerable defence” to the Plaintiff’s claim. The claim against Ms. Wilson arises out of her duties as an employee of the LSO. As an employee of the LSO, she has immunity for claims arising out of the exercise of her duties. There is simply no cause of action available against Ms. Wilson, in the circumstances.
[22] I am satisfied that there are no amendments the Plaintiff could make that would result in a valid cause of action against Ms. Wilson. I exercise my discretion to strike the claim as against Ms. Wilson without leave to amend.
Disposition
[23] For the reasons set out above, I strike the Claim as against Ms. Wilson, without leave to amend.
[24] Ms. Wilson is successful on the motion and is presumptively entitled to her costs. Following the hearing of the motion, Ms. Wilson filed a cost outline seeking $5,456.59 in partial indemnity costs, inclusive of H.S.T. and disbursements. I did not receive a cost outline from the Plaintiff.
[25] If costs cannot be agreed upon, Ms. Wilson may file written cost submissions of no more than three pages in length within 15 days of the date of this endorsement. The Plaintiff may provide his written costs in response on the same basis, within 15 days of receiving Ms. Wilson’s written cost submissions.
DATE: November 23, 2021