Court File and Parties

COURT FILE NO.: 1740/19 DATE: 2021-02-04 SUPERIOR COURT OF JUSTICE - ONTARIO

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

BEFORE: Kurz J.

COUNSEL: Omar Shabbir Khan, Self-represented Paul Le Vay, for the Law Society of Ontario, Glenn Stuart, Deborah McPhadden, Leslie Maunder and Nina Iwanowich

HEARD: February 4, 2021

ENDORSEMENT

Introduction

[1] This is a motion brought by the defendants, the Law Society of Ontario (“the LSO”), Glenn Stuart, Deborah McPhadden, Leslie Maunder and Nina Iwanowich (“the LSO defendants”). They move to strike the pleadings of the Plaintiff (“Mr. Khan”) against them as raising no cause of action as well as being frivolous, vexatious and an abuse of process. This is the second appearance before me on this motion.

[2] This court attendance is intended to determine whether I can set a litigation schedule for the determination of the LSO defendants’ motion. Mr. Khan seeks a further adjournment of the motion and this attendance. He claims, as he did when this matter was last before, that he suffers from psychological disabilities. He asserts that those disabilities prevent him from participating in this motion. For the reasons set out below, I do not accede to Mr. Khan’s request. I find that he has failed to provide evidence sufficient to grant the request. Instead, I set a date for the motion to strike and delineate a litigation schedule for that motion; one that does not close the door on better expert evidence of Mr. Khan’s professed disability.

December 1, 2020 Adjournment of this Motion

[3] This motion was returnable before me on December 1, 2020. In my endorsement of that date, I explained the LSO defendants’ motion to strike as follows:

Mr. Khan had his licence removed by the LSO after a disciplinary proceeding. The decision was upheld by the LSO’s appeal tribunal. Mr. Khan now appeals that decision to the Divisional Court.

The LSO defendants’ key argument is that this action is an abuse of process and a collateral attack on the disciplinary tribunals’ findings. They also raise a number of other issues regarding the pleadings themselves.

[4] When he appeared before me through his agent, Mr. Khan sought an adjournment of the motion. He did so even though it had been marked peremptory against him. He claimed to be unable to prepare for or participate in the motion. He stated that he had an appointment with a psychiatrist the next day.

[5] Mr. Khan provided letters from two general medical practitioners who had been treating him. Both supported his request in some measure. But as my December 1, 2020 endorsement pointed out, each of their letters or notes displayed some shortcomings as well.

[6] The letter of Dr. Siddiq argued for an adjournment. It stated that Mr. Khan suffers from attention deficit disorder, major depressive disorder, and generalized anxiety disorder. Dr. Saddiq provided a chart of what she described as his “stressors”. All of that information clearly come from Mr. Khan himself. Dr. Saddiq opined that Mr. Khan was eligible for short-term disability benefits.

[7] The note of Dr. Taha mirrored many of the points in Dr. Siddiq’s letter but added:

I believe that it is medically necessary at this point that Mr. Khan refrains from working on his litigation matters. they [sic] clearly appear to be negatively impacting him.

[8] All that being said, neither physician addressed the issue of how Mr. Khan was able to prepare for and participate in some of his litigation but not on the LSO defendants’ motion.

[9] Dr. Taha is the doctor who sent Mr. Khan for the psychiatric consultation, which Mr. Khan now states to have been scheduled before Dr. Lawrence Martin.

[10] In considering all of the evidence and arguments before me, I adjourned the motion to strike, stayed the proceedings until the return of this matter, and directed that the matter return before me today to review the issue based on medical evidence. I explained my rationale as follows:

[Mr. Khan] has had well enough time to prepare for this motion and has prioritized other litigation to this. Further, as Mr. Le Vay has pointed out, much of the reason he seeks an adjournment relates to persons other than himself, and the most acute aspects of those stresses occurred in the summer.

However, the letter of Dr. Taha and her diagnosis tell me that there is an immediate concern with Mr. Khan’s ability to participate in this motion, even though it relates to litigation he chose to commence before all of his appeal routes had been followed. Mr. Pope states that his instructions are to withdraw if his adjournment request is denied, leaving the court with no materials and no submissions from Mr. Khan. I must consider that in light of Dr. Taha’s statement that it is medically necessary for Mr. Khan to not participate in his litigation at this time.

Mr. Khan’s Request to Further Adjourn this Motion

[11] In anticipation of this return court date, Mr. Khan filed an affidavit, dated January 29, 2021, in which he stated:

I am a person with disabilities. I suffer from physical disabilities (diabetes, GERD) and mental disabilities (ADHD, MDD, GAD).[^1] I am on permanent medication for my mental disabilities, and they have allowed me to function and cope. I can state from personal and direct experience that stress can dramatically accent the symptoms of ADHD, Depression and Anxiety.

[12] Mr. Khan attached to his affidavit an updated note of Dr. Taha, addressed to the court. It read as follows:

Dear Honourable Justice:

I have the pleasure of reviewing Mr. Khan's symptoms and challenges today on virtual clinic visit by phone. I think he continues to have considerable symptoms with reduced concentration, reduced focus, reduced day time energy, reduced drive to do things, and some panic symptom episodes.

I am in the process of receiving some information from the specialist that assessed Mr Khan on January 5,2021, in respect to necessary medical therapeutic adjustments,

I believe that Mr. Khan requires another 4 weeks of short-term disability benefits until we can reassess him clinically and to adjust his medications as required. Further notice will follow up

[13] What Dr. Taha does not say is that Mr. Khan is unable to participate in these proceedings. Further, as Mr. Le Vay pointed out, this medical note was not provided seven days before the return of this matter, as required by my December 1, 2020 endorsement. Nor was Dr. Taha or Dr. Martin presented for Mr. Le Vay’s cross-examination. In fact, on January 29, 2021, Mr. Khan wrote to Mr. Le Vay to warn against relying on the term of my order permitting the cross-examination of his doctor. He wrote:

If you do decide to cross-examine my doctor in respect to this, as Ordered by Justice Kurz on December 1, 2020, please note that I consider this to be a violation of the Code. Accommodation requests are required to be accepted in good faith. The Code does not permit an unjust invasion of privacy or the impact to one's dignity. Accordingly, I reserve my rights to address this in another forum, should the need arise.

Mr. Khan’s Two-Pronged Argument in Favour of an Adjournment

[14] Today, Mr. Khan attended to argue himself in favour of a further, indefinite adjournment of the LSO defendants’ motion to strike. He was able to clearly and effectively articulate a two-pronged argument.

[15] Mr. Khan’s first argument is that he remains unable to participate in these proceedings. While he relies only on Dr. Taha’s note as evidence in support of that argument, he asserts that its reference to the need for “another 4 weeks of short-term disability benefits until we can reassess [Mr. Khan] clinically and to adjust his medications as required” is sufficient to prove his point. Mr. Khan adds, without reference to any sworn evidence, that his appointment with Dr. Martin was postponed by a month and that he still awaits the psychiatrist’s report. I add that Dr. Taha’s note is ambiguous on that point, stating that she is “in the process of receiving some information from the specialist”.

[16] Mr. Khan offers a second element to his disability argument. He asserts that the duty to accommodate requires the court to effectively take his word on his disability. In other words, to reject his request for an accommodation, even in the absence of convincing proof of the need for that accommodation, is in itself a form of discrimination. Frankly, that argument appears to be a tautology,

[17] Nonetheless, Mr. Khan relies on the manner in which the Divisional Court appears to have taken his word in regard to two of his judicial review applications arising out of the LSO disciplinary proceedings. In particular, he refers to emails he has received from Divisional Court administration staff following case conferences before case managing justice, Favreau J. In those emails, the administrator writes, on behalf of Favreau J.:

Omar Shabbir Khan v. Michael James Colleton, MD and Health Professions Appeals and Review Board - 558/20

During the case conference, Mr. Khan advised that he is not currently able to work on his application for judicial review materials due to medical issues. Accordingly, I am directing that for not the matter is to proceed [sic] as follows:

• The HPARB will serve the public version of its record of proceedings on the parties by February 15, 2021.

• On February 15, 2021, the HPARB will also serve its motion materials for an order sealing part of the record of proceedings. A copy of the motion materials is to be sent by email to the court with a request that it be brought to my attention.

• Mr. Khan is to report back to the Divisional Court by no later than February 22, 2021 about whether he is ready to proceed with the application for judicial review. If he is ready to do so, the court will schedule a case conference for the purpose of setting a schedule for the exchange of materials and a date for the hearing. If he is not ready to do so, he is to provide a brief explanation and a projected date by which he expects to be able to start working on his materials.

• The sealing motion will be dealt with at the next case conference. Mr. Khan and counsel for Dr. Colleton are to advise the Court in advance of the next case conference whether they consent to the motion.

Khan v. Law Society of Ontario Divisional Court File No. 559/20

Further to the telephone Case Conference held by Justice Favreau today, she has directed as follows:

During the case conference, Mr. Khan advised that he is not currently able to work on his appeal materials due to medical issues. I am therefore directing that the appeal be held in abeyance for now. Mr. Khan is to report back to the Divisional Court by no later than January 29, 2020 about whether he is ready to proceed with his appeal. If he is ready to do so, the court will schedule a case conference for the purpose of setting a schedule for the exchange of materials and a date for the hearing. If he is not ready to do so, he is to provide a brief explanation and a projected date by which he expects to be able to start working on his materials

[18] Mr. Khan argues that I must follow the lead of the Divisional Court and take him at his word. I must accept that he is disabled and requires accommodation in the form of an indefinite adjournment.

[19] I point out that these are not endorsements and that even if they are treated as such, that is not what exactly Favreau J. said. The two emails simply set out Favreau J.’s case management directions. They did not articulate any finding or principle that would apply to Mr. Khan’s request before me.

[20] The second prong of Mr. Khan’s argument is that even if I reject his disability argument, it would be fair to grant a “without prejudice” stay to the whole proceeding. But he does not articulate a reason, other than his disability assertion, that I should stay his proceeding. His point is that there would be no prejudice to the LSO defendants if I were to accede to his alternative stay argument.

[21] Mr. Khan pointed to para. 11 of the Court of Appeal for Ontario’s decision in Khan v. Law Society of Ontario, 2020 ONCA 320, where the court stated:

11 We do not see any misdirection in the motion judge's conclusion that the action against the Law Society Tribunal, and the individual defendants associated with it, is an abuse of process in light of the outstanding appeal that the appellant has from the Tribunal's decision. To advance a claim arising out of a decision that is, itself, not final, because of an outstanding appeal, is on its face abusive.

[22] As I pointed out to Mr. Khan and Mr. Le Vay concurred, this paragraph echoes in a nutshell Mr. Le Vay’s argument on the merits of this motion. I do not see how it assists him.

Mr. Le Vay’s Response

[23] For his part, Mr. Le Vay contends that Mr. Khan’s problem is not one of principle. Mr. Le Vay appropriately concedes the existence of a duty to accommodate for medical disability. However, he maintains that Mr. Khan’s problem is an evidentiary one: he fails to prove the existence of a disability that requires accommodation. Mr. Le Vay submits that Dr. Taha’s note fails to provide cogent evidence of a disability that prevents Mr. Khan from participating in this motion. It speaks only of his need for a further four weeks of short-term disability insurance.

[24] Mr. Le Vay adds that the adjournment from December 1, 2020 to today was intended to obtain the evidence of a psychiatric specialist, Dr. Martin. Yet we do not have that evidence, whether from Dr. Martin or even Dr. Taha. In other words, Mr. Khan has failed to provide the proper report as anticipated in my endorsement.

[25] Mr. Le Vay states that Mr. Khan has previously made an accommodation argument identical to the one raised in this motion. He did so during the course of the LSO disciplinary tribunal hearing. That argument was rejected ([2018] L.S.D.D. No. 54, 2018 ONLSTH 35). The rejection was upheld at the LSO appeal division and has not been set aside by the Divisional Court (the judicial review hearing remains pending). Mr. Le Vay asks me to do the same.

[26] The Law Society tribunal terminated Mr. Khan’s licence because of findings that:

• He fabricated a series of invoices for vendor services when the services were not provided;
• This constitutes a failure to maintain the integrity of the legal profession; and
• He breached the LSO’s integrity standard by billing his own time for services that he did not provide as stated, or at all

(See decision, paras. 8-12).

[27] As the tribunal wrote at para. 90 of its decision: “Mr. Khan argued that he did not commit professional misconduct, because his conduct was caused or affected by a disability recognized by the Ontario Human Rights Code”. He offered evidence to the tribunal of Attention Deficit Hyperactive Disorder, depression, panic attacks, Generalized Anxiety Disorder and a Persistent Depressive Disorder. In other words, the same psychological maladies that he raises before me.

[28] After considering Mr. Khan’s evidence and that of his expert, forensic psychiatrist, Dr. Gojer, the Tribunal concluded:

109 We cannot say that the Lawyer's diagnosed mental health issues were a factor in any of this conduct, nor can we say that these illnesses rendered Mr. Khan incapable of fulfilling his professional obligations.

[29] Without fuller argument, I cannot say that this finding is binding on me under the doctrine of issue estoppel. That is because the individual LSO defendants may have participated in the disciplinary proceedings, but they were not parties to those proceedings: Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 S.C.R. 460, at para 25.

[30] Yet, as set out above, Mr. Khan has prosecuted this action, including appeals of the Conlan J. order dismissing portions of this action, to the Court of Appeal for Ontario and responded to a motion for leave to appeal in the Supreme Court of Canada. He also engaged in the two judicial reviews set out above, even in the face of his professed disabilities.

[31] With regard to Mr. Khan’s alternative stay argument, Mr. Le Vay relies on the citation from the Court of Appeal for Ontario’s decision in Khan v. Law Society of Ontario, cited above, as support for his intended argument that this proceeding is an abuse of process. Rather than being content with a stay while this lawsuit continues to hang over them, his clients should have the opportunity to move to dismiss it. Mr. Le Vay points out that most of his clients in this proceeding are individuals and that they are prejudiced by having this lawsuit hanging over their heads. In the absence of cogent medical evidence that Mr. Khan is unable to proceed, the LSO defendants should have the opportunity to argue for this action’s dismissal as against them.

[32] In reply, Mr. Khan simply argued that the duty of accommodation means taking him at his word, as he said the Divisional Court has done.

Analysis

[33] As I alluded to in my endorsement of December 1, 2020, the decision on whether to grant an adjournment is both discretionary and contextual. The court must balance the interests of each of the parties as well as the administration of justice, which includes timely justice. A consideration and weighing of evidence for and against an adjournment is essential to the exercise of judicial discretion regarding an adjournment.

[34] Repeating from my last endorsement, the comments of the Court of Appeal for Ontario in Toronto Dominion Bank v Hylton, 2010 ONCA 752, at para 38, the court must:

consider the evidence and strength of the evidence of the reason for the adjournment request, the history of the matter including deliberate delay or misuse of the court process, the prejudice to the party resisting the adjournment and the consequences to the requesting party of refusing the request.

[35] Here, I do not find that Mr. Khan has presented convincing evidence that he is unable to respond to the LSO’s motion. He was served with the LSO defendants’ materials well over a year ago. Frankly, he should have responded to them earlier. He chose to prioritize other proceedings to this one.

[36] As he pointed out, Mr. Khan has successfully relied on his asserted disabilities to extend some Divisional Court deadlines to perfect his judicial review applications. But that fact is of little moment to my considerations. Favreau J. made no finding on his assertions of fact, and his request appears to have been uncontested.

[37] Equally to the point, Favreau J.’s granting of an indulgence to Mr. Khan does not amount to a concurrence with his assertion of court’s duty to accommodate disability in the absence of cogent and compelling evidence of its existence. That is especially the case when a party is offered the opportunity to present such evidence. Here, I gave Mr. Khan over two months to do so. Yet the only medical evidence he has produced is a note from a family doctor who does not claim expertise in psychiatry and who does not opine that Mr. Khan is unable to participate in the motion to strike.

[38] Before me today, Mr. Khan was focused, articulate and fully oriented to the issues before the court. He clearly understood the issues and capably articulated his position. He argues that I should not be fooled by a superficial facility with the law and process. But in the absence of cogent expert medical evidence of disability, I am not required to ignore what I hear and see.

[39] Further, Mr. Khan will receive a further adjournment in any event, as this appearance is simply one to determine whether I should set out a litigation schedule to move forward on the LSO defendants’ motion to strike. I find that I should do so.

Conclusion

[40] The LSO defendants’ motion to strike is adjourned to June 21, 2021. That date represents a total adjournment of more than 6 ½ months from the date that this matter was first before me and over four months from today. Even Dr. Taha’s note speaks of four weeks, not four months.

[41] The LSO defendants have already delivered and filed their materials, including a factum. That factum was prepared without the benefit of Mr. Khan‘s materials. After consulting with both parties, I set out the following litigation schedule, which the parties shall follow:

a. Mr. Khan will serve and file any responding materials, including his factum, by May 28, 2021;

b. Mr. Le Vay may serve and file any reply materials, including a reply factum, by June 9, 2021;

c. I remain seized of this matter until the motion to strike is heard. If Mr. Khan wishes to move, upon cogent expert medical evidence of inability to proceed with the motion, he may do so before me for that relief. He shall first arrange the return date with Mr. Le Vay’s office. That motion must be brought at least 14 days before the June 21, 2021 return date of this motion.

d. Should Mr. Khan so move, the LSO defendants continue to be entitled to cross-examine the author of any expert report upon which Mr. Khan relies. That cross-examination shall take place through a special examiner’s office in advance of the return date for any motion for an adjournment of the LSO motion to strike. Such examination shall, unless I direct otherwise, take place virtually. It will be Mr. Khan’s obligation to produce that doctor for examination.

[42] Costs of today’s appearance are reserved to the judge hearing the motion to strike.

“Marvin Kurz J.”

Electronic signature of Justice Marvin Kurz,

Original will be placed in court file

Dated: February 4, 2021

[^1]: Attention Deficit Hyperactivity Disorder, Major Depressive Disorder, Generalized Anxiety Disorder.