COURT FILE NO.: CV-21-00659943-0000 DATE: 20230918 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ALEXANDER SHAULOV, Plaintiff AND: LAW SOCIETY OF ONTARIO, PERFORMANCE ASSESSMENT GROIP INC., JOHN BRAHAM and MICHAEL WILLIAMS

BEFORE: VERMETTE J.

COUNSEL: Alexander Shaulov, self-represented Stephen Aylward and Karen Bernofsky, for the Defendants

HEARD: July 11, 2023

Endorsement

1. Background and Overview

[1] This matter was remitted to me by the Court of Appeal.

[2] On May 6, 2022, I released my decision on the Defendants’ motion to strike: 2022 ONSC 2732 (“Motion Decision”). [1] Among other things, I held that this Court did not have jurisdiction over certain claims advanced by the Plaintiff, including the following (“Administrative Law Claims”):

a. an order setting aside the decision of the Law Society of Ontario (“LSO”) dated October 1, 2020 deeming the Plaintiff’s application for a licence to have been abandoned;

b. an order compelling the LSO to admit the Plaintiff to the Bar and issue a L1 licence to the Plaintiff;

c. an order compelling the LSO to conduct an assessment interview of the Plaintiff to allow him to show his competence to practise law in Ontario; and

d. a declaration that the structure, process and method of evaluation of the licensing examinations set by the LSO are unreasonable and ultra vires of the Law Society Act, R.S.O. 1990, c. L.8 (“LSA”).

[3] In the Motion Decision, I expressed the view that the Administrative Law Claims had to be made by way of application for judicial review to the Divisional Court.

[4] The Plaintiff appealed from the Motion Decision. The Court of Appeal found, among other things, that I had erred in concluding that this Court did not have jurisdiction over the Administrative Law Claims. It remitted to me the question of whether the Administrative Law Claims should be dismissed under Rule 21.01(1)(b) of the Rules of Civil Procedure. See Shaulov v. Law Society of Ontario, 2023 ONCA 95 at paras. 8 and 22-23 (“Shaulov CA”).

[5] On May 15, 2023, a case conference was held before me to discuss the next steps in light of the Court of Appeal’s decision. In addition to determining the issue remitted to me by the Court of Appeal, the Defendants asked me to determine another issue relating to the Plaintiff’s claims against the Defendants Performance Assessment Group Inc., John Braham and Michael Williams (“Non-LSO Defendants”). In the Motion Decision, I ordered that the Plaintiff’s claims against the Non-LSO Defendants be struck without leave to amend. This order was upheld by the Court of Appeal: Shaulov CA at para. 21. However, after the Court of Appeal released its decision, the Plaintiff served an Amended Statement of Claim that still included the Non-LSO Defendants as Defendants. While the Amended Statement of Claim did not seek any relief as against the Non-LSO Defendants, the Plaintiff took the position that he could keep the Non-LSO Defendants as parties pursuant to subrules 5.03(1) and (4) of the Rules of Civil Procedure.

[6] After discussion with the parties, I ordered a timetable for the delivery of written submissions on the two issues (Administrative Law Claims and Non-LSO Defendants) and fixed a hearing date.

[7] The day after the case conference, the Plaintiff advised counsel for the Defendants that he wanted to amend his Amended Statement of Claim to allege negligence against the Non-LSO Defendants.

[8] After the Defendants delivered their written submissions in accordance with the court-ordered timetable, the Plaintiff served a “Re-Amended Statement of Claim”. In the Re-Amended Statement of Claim, the Plaintiff seeks a declaration that the Non-LSO Defendants “were negligent and misrepresented the nature of the Examinations and thus negligently and intentionally mislead [sic] the Plaintiff.” He also claims damages as against the Non-LSO Defendants “for their negligent misconduct, intentional bad faith misrepresentation and misleading the Plaintiff.”

[9] Ultimately, after considering the parties’ submissions, I dismiss the LSO’s request that the Administrative Law Claims be struck. I also find that the Amended Statement of Claim and the Re-Amended Statement of Claim served by the Plaintiff do not comply with my order regarding the Non-LSO Defendants, as upheld by the Court of Appeal.

2. Whether the Administrative Law Claims should be struck

a. Position of the LSO

[10] The LSO’s position is that the Administrative Law Claims disclose no reasonable cause of action and should be struck without leave to amend. It submits that even if the facts pled are accepted as true, it is plain and obvious that the Administrative Law Claims cannot succeed.

[11] The LSO states that it is plain and obvious that the licensing examinations are within the LSO’s statutory authority to license and regulate its licensees. It argues that the Plaintiff’s claim to the contrary does not present a genuine legal issue and is an attack on the policy choices made by the LSO in designing its licensing examinations. The LSO submits the following:

a. Whether or not the LSO’s licensing examinations are an effective way to promote learning is not a justiciable question that can properly be decided by the courts and, in any event, ensuring standards of learning is only one aspect of the LSO’s mandate. The LSO submits that the issue of whether the licensing examinations are effective or not is not an issue that the Court is competent to answer.

b. The Plaintiff’s bald conclusory statements that the licensing examinations test cognitive disabilities and are clinical testing do not need to be accepted on this motion. Among other things, they are based on a logical fallacy.

c. The principle that a delegate may not further delegate (delegatus non potest delegare) that is pleaded by the Plaintiff has no application in this case as even on the facts as pled, the Non-LSO Defendants did not exercise delegated authority.

[12] According to the LSO, the Plaintiff’s arguments with respect to the values reflected in the Canadian Charter of Rights and Freedoms (“Charter”) are better dealt with in the context of the Plaintiff’s direct claims under the Charter. The LSO argues that the Charter values framework developed by the Supreme Court of Canada applies to discretionary administrative decisions, and that this case does not involve a discretionary decision because the Plaintiff attacks the entire structure of the licensing examinations.

[13] The LSO also argues that there is no reasonable cause of action for breach of procedural fairness. It states that the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (“Baker”) do not support the elevated level of procedural fairness claimed by the Plaintiff. The LSO submits the following:

a. The duty of procedural fairness does not guarantee an internal appeal process.

b. The duty of procedural fairness does not require a decision-maker to give reasons in all cases and the Baker factors weigh against a duty to provide reasons in this case. In any event, the LSO has already given the Plaintiff the reasons for its decision to refuse his licensing application and the adequacy of reasons is not an issue of procedural fairness.

c. The duty of procedural fairness does not require the LSO to depart from its own processes and provide an interview as an alternative licensing route for candidates who fail the licensing examinations.

[14] The LSO states that the Plaintiff has not pleaded material facts to support his allegation of improper purpose.

b. Position of the Plaintiff

[15] The Plaintiff points out that he cannot provide more particulars now with respect to the Administrative Law Claims because many of the necessary supporting facts would be within the Defendants’ knowledge and control and there has been no document production or discovery.

[16] The Plaintiff submits that the LSO is not immune from the Court’s scrutiny of its exercise of discretion under the LSA, and that its decisions, rules, regulations, policies and by-laws are subject to scrutiny under the Charter. He states that the LSO must conform with Charter values when exercising its discretion.

[17] According to the Plaintiff, the LSO’s by-laws and policies requiring lawyer candidates to subject themselves to “discriminative, non-merit-based Examination without alternatives” are discriminatory and create unreasonable barriers that restrict access to the legal profession to individuals like the Plaintiff.

[18] The Plaintiff argues that since he has a valid cause of action against the LSO under section 15 of the Charter, it is plain and obvious that he has a reasonable and valid cause of action with respect to the Administrative Law Claims and his claim that the LSO’s examinations, by-laws, rules, policies and regulations are ultra vires the LSA.

[19] The Plaintiff states that he challenges the LSO’s abusive use of discretionary power, based on which the LSO created a “social science laboratory”. The Plaintiff also alleges that the LSO failed to exercise its legal duty in the public interest by failing to conduct a proper and adequate due diligence into the Non-LSO Defendants and by failing to protect the public against incompetent lawyers who knew how to cheat and pass non-merit-based psychometric examinations.

[20] The Plaintiff submits that his challenge to the LSO’s exercise of discretionary power requires a trial where the Court will have the benefit of a complete factual context which will allow the Court to scrutinize properly the LSO’s exercise of discretionary power and to determine whether such exercise is ultra vires the LSA.

[21] The Plaintiff states that the Court should take as true and accept as proven the facts that he pled with respect to the LSO’s lack of procedural fairness. He argues that it is plain and obvious that he has a valid claim based on the duty of fairness that is owed to him by the LSO. He submits that his claim is highly fact-based and contextual and requires a trial where the Court will have the benefit of a complete factual context allowing it to scrutinize properly the procedures chosen and used by the LSO in the context of the licensing examinations.

[22] The Plaintiff’s position is that his pleading of the rule delegatus non potest delegare is a matter that should be ruled upon following a full trial, based on the facts and statutory interpretation. He submits that his claim is not based on this rule and that the Court cannot dismiss the pleading of delegatus non potest delegare because it is a rule of construction based on which legislation is interpreted.

c. Discussion [2]

[23] The general principles applicable to a motion to strike under Rule 21.01(1)(b) are set out in paragraphs 61-66 of the Motion Decision.

[24] In my view, the LSO’s arguments with respect to the Administrative Law Claims are the kind that are made at the hearing of an application for judicial review on the merits and, in the context of this action, are more suited to a motion for summary judgment than a motion to strike. Assuming the facts pleaded to be true, I cannot conclude that the Administrative Law Claims have no reasonable prospect of success.

[25] The Plaintiff has pleaded that the structure, process and method of evaluation of the LSO’s licensing examinations as well as the LSO’s licensing policies do not provide procedural fairness and are unreasonable. [3] If the Plaintiff is successful in establishing his claims of unreasonableness and/or procedural unfairness, there may be a basis for the Court to grant the relief set out in paragraphs 2(a), (b), (c) and/or (d) (in part) above (i.e., the Administrative Law Claims).

[26] The standard of review applicable to the review of law society rules is reasonableness. A law society rule will be set aside only if the rule is one no reasonable body informed by the relevant factors would have enacted. The substance of law society rules must conform to the rationale of the statutory regime set up by the legislature. See Green v. Law Society of Manitoba, 2017 SCC 20 at para. 20.

[27] The Plaintiff’s Statement of Claim contains numerous allegations in support of his position that the LSO’s policies and rules regarding the licensing examinations are unreasonable. I do not accept the LSO’s position that the facts pleaded by the Plaintiff are manifestly incapable of being proven and/or constitute unsupported bald conclusory statements of fact. In my view, the Plaintiff has pleaded sufficient material facts that are provable in support of his claim of unreasonableness, and these facts are to be assumed to be true on this motion. Whether the LSO’s policies and rules regarding the licensing examinations are, in fact, unreasonable should be decided based on full argument and a record that is more substantial than a motion record on a motion to strike.

[28] I also find that the Plaintiff has pleaded sufficient material facts in support of his claim of procedural unfairness, and these facts are to be assumed to be true on this motion. The duty of procedural fairness in administrative law is eminently variable, inherently flexible and context-specific. The specific procedural requirements that the duty imposes are determined with reference to all the circumstances. See Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 77 (“Vavilov”). Given this, the Plaintiff’s claim of procedural unfairness should be decided based on full argument and a record that is more substantial than a motion record on a motion to strike.

[29] The Plaintiff also seeks a declaration that the structure, process and method of evaluation of the licensing examinations set by the LSO are ultra vires of the LSA (i.e., part of the relief set out in paragraph 2(d) above – the fourth Administrative Law Claim). Among other things, he pleads that:

a. the LSO’s discretionary decision to subject lawyer candidates to the licensing examinations was made arbitrarily or in bad faith;

b. the LSO intentionally hid the fact that the licensing examinations have psychometric characteristics and parameters in order to deceive the public and the lawyer candidates and hide the true nature of the licensing examinations;

c. the LSO manipulated the difficulty level of the licensing examinations’ questions and structured them in a vague, ambiguous and confusing manner in order to promote a standardized set of opinions and way of thinking;

d. the LSO used its status as the exclusive regulatory body to have each lawyer candidate, without their consent, participate in a clinical psychology experiment by providing a platform (i.e., the examination process) to its psychometrists; and

e. in order to ensure that there will not be any legal challenges to the licensing examinations, the LSO intentionally chose the Angoff scoring method because it allows more candidates to pass the licensing examinations by discriminating against certain members of some minority groups.

[30] While an administrative body may have considerable discretion in making a particular decision, that decision must ultimately comply with the rationale and purview of the statutory scheme under which it is adopted. Any exercise of discretion must accord with the purposes for which it was given. See Vavilov at para. 108 and References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 at para. 73.

[31] I find that the Plaintiff has pleaded sufficient material facts in support of his claim that the structure, process and method of evaluation of the licensing examinations set by the LSO are ultra vires of the LSA. Again, these facts are to be assumed to be true on this motion. If the LSO abused its discretion, exercised it in bad faith or in a manner that is inconsistent with the statutory purpose of the LSA, then the Plaintiff’s ultra vires claim could succeed. This claim, like the other Administrative Law Claims, should be decided based on full argument and a record that is more substantial than a motion record on a motion to strike.

[32] The fact that some of the grounds or arguments advanced by the Plaintiff in support of the Administrative Law Claims may be unfounded or without merit is not a proper basis to strike the Administrative Law Claims or one of them at this stage of the litigation. This is because other bases are pleaded in the Statement of Claim in support of the Administrative Law Claims. For example, even if I were to find that the Plaintiff’s argument based on delegatus non potest delegare has no reasonable prospect of success, this would not result in the claim that the licensing examinations are ultra vires of the LSA being struck because there are other bases pleaded in the Statement of Claim in support of that claim. Thus, even if some of the Plaintiff’s arguments may be found to be invalid and meritless, it cannot be said that the Statement of Claim discloses no reasonable cause of action with respect to the Administrative Law Claims.

[33] In light of the foregoing, I dismiss the LSO’s motion to strike with respect to the Administrative Law Claims.

3. Whether the Amended Statement of Claim complies with the Court’s order

a. Position of the Defendants

[34] The Defendants’ position is that when the Court struck out all the claims against the Non-LSO Defendants without leave to amend, the Non-LSO Defendants were removed from the action. They state that while the order does not explicitly state that the action against the Non-LSO Defendants was dismissed, that was clearly the intention of both the reasons and the order.

[35] The Defendants point out that this Court specifically rejected the Plaintiff’s claim that the Non-LSO Defendants were necessary parties to the adjudication of the action (Motion Decision at para. 117), and they submit that the Plaintiff is improperly trying to relitigate this issue. According to the Defendants, the Non-LSO Defendants cannot be added back to the action by a simple amendment because a party can only amend a pleading to add new parties with the consent of all parties and the proposed parties or with leave of the court.

[36] The Defendants argue that, in any event, the Non-LSO Defendants are not necessary and proper parties to this action. They note that the Amended Statement of Claim seeks no relief against the Non-LSO Defendants and, as such, they would not be affected by the outcome of the action. The Defendants submit that this Court should not permit them to be added back because this would constitute an abuse of process.

[37] With respect to the Plaintiff’s proposed claim for negligence, the Defendants’ position is that the Plaintiff cannot be permitted to propose a successive series of amendments on alternative theories of liability to maintain his action against the Non-LSO Defendants. They also argue that, in any event, the claim is statute-barred and it is plain and obvious that the Non-LSO Defendants did not owe a duty of care to the Plaintiff.

b. Position of the Plaintiff

[38] The Plaintiff’s position is that the Non-LSO Defendants have never been removed as parties to the action and that he has the right to keep them as parties. He states that this Court’s statement that the Non-LSO Defendants were not proper parties to the action was obiter and he argues that the Court of Appeal did not “maintain” this obiter. He submits the following:

The Plaintiff affirms that one of the reasons that the ONCA did not maintain the Motion Judge’s obiter with respect to the necessary party is because it contradicts the case law establishing the legal analysis to be completed to determine whether a party is a necessary party.

[39] The Plaintiff argues that the Non-LSO Defendants were the mastermind and directing mind of the examinations and, as such, they are necessary parties to the action.

[40] According to the Plaintiff, this Court and the Court of Appeal only struck without leave to amend the Plaintiff’s claim against the Non-LSO Defendants under the Human Rights Code, R.S.O. 1990, c. H.19. His view is that the Courts did not restrict him from advancing any other claims as against the Non-LSO Defendants.

[41] The Plaintiff argues that since the Non-LSO Defendants were not removed as parties, he has the right to amend his Statement of Claim against the Non-LSO Defendants at any time before the close of pleadings without leave pursuant to Rule 26.02(a).

[42] The Plaintiff submits that his claim against the Non-LSO Defendants is not statute-barred, but that, in any event, a motion to strike is not the proper forum to deal with a limitation period argument.

c. Discussion

[43] I find that the Non-LSO Defendants are no longer parties to this action. In the Motion Decision, I struck all the claims against the Non-LSO Defendants without leave to amend. This was upheld by the Court of Appeal. I also expressly rejected the Plaintiff’s argument that it was necessary for the Non-LSO Defendants to be joined as parties to enable the Court to adjudicate effectively and completely on the claims that may be validly alleged against the LSO in this proceeding: see Motion Decision at para. 117.

[44] I reject the Plaintiff’s argument that the Court of Appeal “did not maintain the Motion Judge’s obiter with respect to the necessary party”. The Court of Appeal’s reasons do not discuss this point. The Court of Appeal held that the Plaintiff’s claims against the Non-LSO Defendants “were properly dismissed without leave to amend”: see Shaulov CA at para. 21. Had the Court of Appeal’s view been that the Non-LSO Defendants were necessary or proper parties, it would have addressed the issue.

[45] While I have already held that the Non-LSO Defendants are not necessary parties to the action, I have considered the Plaintiff’s arguments and I am satisfied that based on both the original Statement of Claim and the Amended Statement of Claim, the Non-LSO Defendants are not necessary parties to the action. The Plaintiff pleads that the Non-LSO Defendants were retained by the LSO to prepare a report and make recommendations with respect to licensing examinations. It is clear from the Statement of Claim (and the statutory framework) that the LSO was the decision-maker. Based on the pleading, the resolution of the dispute between the Plaintiff and the LSO will not directly affect the Non-LSO Defendants financially or with respect to their legal rights. Further, the Non-LSO Defendants do not need to be bound by the result of the action. See York Region Condominium Corporation No. 890 v. Market Village Markham Inc., 2020 ONSC 3993 at paras. 374-378.

[46] The Plaintiff stated in his oral argument that the Non-LSO Defendants are manufacturing examinations for other clients and regulatory bodies (other than the LSO) and that he wants to stop them from preparing discriminatory examinations. What the Non-LSO Defendants may be doing for other regulatory bodies is irrelevant to the Plaintiff’s claims in this action. Moreover, it is difficult to see how the Plaintiff could have a personal and direct interest and, therefore, standing with respect to examinations that he has not taken and he is not planning to take.

[47] Since all claims as against the Non-LSO Defendants have been struck without leave to amend and it has been determined that they are not necessary parties, the Non-LSO Defendants are no longer parties to the action. If the Plaintiff wishes to plead a totally new cause of action and seek relief against them, he requires the consent of the LSO and the Non-LSO Defendants or leave of the Court: Rule 26.02 of the Rules of Civil Procedure. Neither consent nor leave has been obtained. I cannot summarily determine whether leave should be granted to the Plaintiff to file the Re-Amended Statement of Claim based on the record before me. If the Plaintiff would like to bring a motion to obtain leave, this can be discussed at the next case conference. However, some of the points raised by the Defendants regarding the Plaintiff’s proposed amendments have, at a minimum, an air of reality and should be seriously considered by the Plaintiff, including the issues of abuse of process and duty of care.

4. Conclusion

[48] The LSO’s motion to strike the Administrative Law Claims is dismissed.

[49] The Plaintiff is ordered to serve within 30 days an Amended Statement of Claim that does not include any claims as against the Non-LSO Defendants and that strikes out their names in the title of proceeding.

[50] With respect to costs, my initial view is not to order costs given the fact that success was divided. If, despite the foregoing, the parties wish to seek costs, they shall deliver submissions of not more than three pages (double-spaced), excluding the costs outline, by October 2, 2023. If submissions are delivered, responding costs submissions of not more than three pages (double-spaced), may be delivered by October 16, 2023. The submissions of all parties shall also be sent to my assistant by e-mail and uploaded onto CaseLines.

[51] The parties are to contact my assistant to schedule a case conference with me (as the Case Management Judge) for the purpose of discussing the next steps in the action.

Vermette J.

Date: September 18, 2023

Footnotes:

[1] The relevant background is set out in the Motion Decision and will not be repeated in this endorsement.

[2] Given that the Court of Appeal remitted part of the motion to strike to me for determination, I have considered the Statement of Claim that was the subject of that motion, i.e., the original Statement of Claim, for the purpose of this discussion.

[3] The statutory and regulatory context relating to the licensing examinations is set out in paragraphs 5-9 of the Motion Decision.