COURT FILE NO.: CV-22-00683933-0000
DATE: 20231011
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROCCO GALATI
Plaintiff
– and –
SHARON GREENE, THE DIRECTOR OF INTAKE AND RESOLUTION, THE LAW SOCIETY OF ONTARIO (“LSO”)
Defendants
Rocco Galati, self-represented and appearing in person
Louis Century, Lawyer for the Defendant
HEARD: September 21, 2023
G. DOW, J.
REASONS FOR DECISION
[1] The defendants sought to have the plaintiff’s claim dismissed without leave to amend under Rule 21.01 with its submissions focused on the claim having raised no reasonable cause of action. Alternatively, the causes of action raised will fail given a proper application of the law including there being a valid statutory defence to the claims made.
[2] The plaintiff opposes the relief sought not only on the basis of his original 32 page, 81 paragraph Statement of Claim issued July 12 2022 and the documents referred to therein but, alternatively, that his Charter rights under sections 7, 8 and 15 have been infringed.
Background
[3] The parties agreed that this type of motion proceeds on the basis that the allegations in the Statement of Claim are treated as proven. Briefly, this action arises from the Law Society of Ontario (“Law Society”), and two of its employees, the first being an unnamed Director of Intake and Resolution and the second being Sharon Greene, who is an Intake Resolution Counsel and their response to a series of nine complaints made to it about the actions and conduct of the plaintiff. Mr. Galati has been a member of the Law Society and practicing lawyer since 1999. His practice has focused on constitutional and other novel issues that may attract media and thus public attention.
[4] After the onset of the COVID pandemic, the Law Society received the nine complaints about Mr. Galati’s actions and conduct between December, 2020 and May, 2022. The Law Society advised Mr. Galati of each complaint and requested he respond to three of them.
[5] The three complaints which required responses emanated from Mr. Galati providing legal advice to organizations called Action4Canada and Vaccine Choice Canada. These organizations raise money through public awareness and the complainants used their donations, whether personal or on behalf of someone else to raise a possible link between themselves and Mr. Galati.
[6] Mr. Galati’s written responses to the Law Society are referenced in the Statement of Claim and dated December 30, 2020, September 11, 2021 and June 29, 2022. Thus portions were referred to in submissions as well as the Law Society’s letters dated February 18, 2021 and May 19, 2022.
[7] The causes of action raised in the Statement of Claim include conspiracy, abuse of process, interference with economic interests, breach of fiduciary duty, negligence/negligent investigation and intimidation.
[8] Mr. Galati served and filed an Amended Statement of Claim October 9, 2022 which the Law Society stated was following the onset of this motion and ought not to be considered in this motion beyond that it failed to cure the Law Society’s alleged deficiencies and the pleading should reinforce its submission that leave to amend ought not to be granted.
[9] There is a related Statement of Claim by Mr. Galati against one of the individuals who made one of the complaints and others, seeking injunctive relief, damages for liable and slander, interference with economic interests and intentional infliction of mental anguish and distress.
[10] As part of the factual matrix, references were made to sections of the Law Society Act, R.S.O., c. L.8.1990 and included:
a) Section 4.2 which sets out the duties of the Law Society to protect the public interest;
b) Section 9 which provides a statutory immunity for “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; and
c) Section 49.3 which permits the Society to conduct an investigation if it receives information suggesting a member has engaged in professional misconduct or “conduct unbecoming a licensee” with the power to “require the production of and examine any documents that relate to the matters under investigation, including client files”.
[11] It should also be noted that the parties were in general agreement that the constitutional challenge at this stage involve an evaluation of any deficiencies in the pleadings and not a substantive evaluation of the constitutionality of these sections. As a result, notice to the Attorney General of Canada and the Attorney General of Ontario was not required (and had not occurred). I agree with that position.
Analysis
[12] The process and essential principles to be applied in a motion to strike pleadings can be summarized as follows:
a) the allegations pleaded are assumed to be true and it must be plain and obvious that they disclose no reasonable causes of actions;
b) if the cause of action has been recognized, all of the essential elements must be pleaded;
c) if the cause of action has not been recognized, there is a reasonable prospect it can succeed; and
d) the pleadings must be read generously and in favour of the plaintiff, (see McCreight v. Canada (Attorney General), 2013 ONCA 43 at paragraph 39).
[13] At the heart of this dispute was whether the Law Society and its two employees are alleged to have (and thus assumedly did) conduct themselves in a manner which equated to bad faith. This is so given their statutory immunity if that requirement is not met.
[14] It is clear that the immunity extends to Sharon Greene and the Director of Intake and Resolution. It also extends to the Law Society itself (Robson v. The Law Society of Upper Canada, 2017 ONCA 468). It is clear that bad faith conduct must be “pleaded with precision and full particulars” (Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618 (at paragraph 24)). The elements or components of bad faith have been held to be a “legal conclusion” and involves the intention to deceive or have someone to believe what is false. It is the equivalent to dishonestly. (see Deep v. Ontario, 2004 CanLII 14527 (ONSC) at paragraph. 64).
[15] I read and reread the Statement of Claim, the Amended Statement of Claim, the key letters from the Law Society dated February 18, 2021 and May 19, 2022 and Mr. Galati’s letters of December 30, 2020, September 21, 2021 and June 29, 2022. They set out Mr. Galati’s disagreement with the Law Society with having to respond to three of the nine complaints received. As was repeatedly apparent, Mr. Galati elaborated on his concerns about the motives and character of the complainants in his responses to the Law Society and in the pleadings. He opines on the intentions of others. However, I found no allegation that the Law Society, Sharon Greene or the Director of Intake and Resolution, were acting dishonestly, with an intention to deceive or have someone believe what is false.
[16] To the contrary, the Law Society’s investigation and evaluation of eight of the nine complaints reached the contrary finding and Mr. Galati was advised of that decision (at paragraph 20 of the Statement of Claim). Mr. Galati was advised of the final complaint had not been dealt with given the issuance of his action against that complainant (at paragraph 26 of Mr. Galati’s factum).
[17] This conclusion suggests the Statement of Claim ought to be struck. This raises whether leave to amend ought to be granted. That, in turn, raises what amendments Mr. Galati made in the subsequent October 26, 2022 Statement of Claim, filed. My review of the amendments indicate the claim was expanded to include conduct by another Law Society employee, Jill Cross (at paragraphs 25A and 58B). That is, no allegations of dishonesty, or with an intention to deceive or have someone believe something that is false, were made.
[18] However, that is not to say Mr. Galati may wish or be willing to raise such an allegation. As a result, I would grant leave to amend.
[19] As part of submissions, I raised the irony and difficulty of a plaintiff being faced with this type of motion where the defendant seems to be directing what the plaintiff can and cannot plead. It should however, end the challenge to the potential of the claim and permit it to proceed on its merits.
[20] To that extent, I would briefly review the defendants’ submissions with regard to each of the plaintiff’s stated causes of action.
[21] First, conspiracy, arose from the defendants having “jumped on a co-conspirator bandwagon” (at paragraph 61 of the Statement of Claim). With the parties in the related action, this occurred by accepting the complaints without conducting appropriate research or investigation in a fair and reasonable manner. As submitted by the defendant, such conduct, assuming it to be true, would amount to negligence. This does not meet the test for bad faith or exclude the immunity provided by Section 9 of the Law Society Act, supra. Something beyond that is required.
[22] Regarding the claim of abuse of process, the claim against these defendants is it “magnified and augmented” conduct by the complainants “by putting the plaintiff through the process of a response” (at paragraph 65 of the Statement of Claim). I cannot find that the actual complaint fulfilled the third element of the four elements of this cause of action (see Harris v. GlaxoSmithKline Inc., 2010 ONCA 872 (at paragraph 27). That is, the Law Society “took or made a definite act or threat in furtherance of the improper purpose”. The Law Society received a complaint, advised Mr. Galati and, in six of the nine incidents, confirmed the Law Society would not be taking any action. In two of the remaining three, it advised Mr. Galati, upon receiving his response, no further action was being taken. The final complaint has been set aside pending the outcome of litigation.
[23] Regarding the interference with economic interests, I accept the Supreme Court of Canada statement of the elements requiring an intentional infliction of economic injury by the use of unlawful means against a third party (see A.I. Enterprises Ltd. v. Bram Enterprises Ltd., 2014 SCC 12 at paragraph 23). That is, Mr. Galati suffered economic injury by the Law Society’s use of unlawful means by the defendants in the related action. Further, “unlawful means” are to be interpreted narrowly and must constitute an actionable civil wrong. That is, an actionable wrong was committed by the Law Society against the parties to the related action. Such conduct is not described in paragraphs 67 or 68 of the Statement of Claim.
[24] Regarding a breach of fiduciary duty, what is required is “an undertaking by the fiduciary, express or implied, to act in accordance with the duty of loyalty reposed on him or her” (see Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24 at paragraph 30). The cause of action arises when the alleged fiduciary, here the Law Society, forsakes the interest of the beneficiary, here Mr. Galati, in favour of others. Here, the Law Society is the regulator of Mr. Galati’s profession and owes a duty to protect the public interest. Paragraph 69 of the Statement of Claim fails to plead how that became subordinate to any fiduciary duty owed by the defendants to Mr. Galati.
[25] Regarding negligence or negligent investigation, judicial interpretation of Section 9 of the Law Society Act, supra would appear to be a full defence (see Robson v. Law Society of Upper Canada, 2016 ONSC 5579 at paragraphs 40-41, affirmed 2017 ONCA 468). The pleading requires allegations that somehow remove that barrier, as what is contained in paragraph 70 of the Statement of Claim, is insufficient.
[26] Regarding intimidation, the three elements of this tort require material facts to support how informing Mr. Galati that he did not need to respond to the complaints fulfilled these elements. Paragraphs 71 to 73 of the Statement of Claim required greater particulars that set out the specific basis for not advising him of its receipt of complaints that it has concluded were so without merit that his response was not required.
[27] Regarding the Charter challenges under Sections 7 and 15, material facts are required about how or what specifically was the conduct by the defendants that resulted in deprivation of Mr. Galati’s Section 7 rights and further, that same occurred in a manner contrary to the principles of fundamental justice.
[28] Similarly, it is insufficient to rely on Section 15 of the Charter by identifying one’s ethnic origin or religion. Mr. Galati must connect how these characteristics resulted in discrimination and how he did not receive the “equal benefit of the law without discrimination”.
[29] Finally, Mr. Galati’s pleading (at paragraphs 76 and 77 of the Statement of Claim) challenging Section 49.3 of the Law Society Act, supra, must address how not requiring or applying the Section 49.3 power somehow gives standing to challenge the constitutionality of that section. Further, to proceed as required, the required notice of constitutional question to the Attorney General of Ontario must be delivered.
Conclusion
[30] The defendants’ motion to strike out (in this case both the Amended Statement of Claim and) the Statement of Claim is granted. However, Mr. Galati is granted leave to deliver a (presumably final) Fresh as Amended Statement of Claim. I urge Mr. Galati reflect on the wisdom of so doing.
Costs
[31] The defendant sought partial indemnity costs, if successful. Their Costs Outline claimed $17,016.32 in fees plus HST of $2,230.58 and disbursements of $461.98 for a total of $19,708.86. Their Costs Outline detailed hourly rates of $405 for senior counsel (who did not argue the motion) and $330 per hour for intermediate counsel (who did argue the motion).
[32] In contrast, Mr. Galati’s Costs Outline set out partial indemnity fees of $12,418.70 based on time he docketed at $450 per hour. This Costs Outline did not reference any of the case law or include the basis which would entitle him to an award of costs given his self-representation.
[33] While I would acknowledge the decision to have some level of divided success, I have concluded the defendants level of success was greater given it was necessary to proceed in the face of a defective pleading and unwillingness of Mr. Galati to accept same.
[34] I would also rely on the overarching principle contained in Boucher et al v. Public Accountant Council for the Province of Ontario et al, 2004 CanLII 14579 (ON CA), [2004] O.J. No. 2634 which indicates “the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant” (at paragraph 26). I also note the Costs Outline of the defendants contains over $4,000 of docketed time by senior counsel who, as indicated, did not directly participate in the hearing of the motion.
[35] As a result, and mindful of the factors under Rule 57.01, I fix costs in the amount of $14,600 inclusive of partial indemnity fees, HST and disbursements, payable by Mr. Galati to the defendants, forthwith.
Mr. Justice G. Dow
Released: October 11, 2023
COURT FILE NO.: CV-22-00683933-0000
DATE: 20231011
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROCCO GALATI
Plaintiff
– and –
SHRON GREENE, THE DIRECTOR OF INTAKE AND RESOLUTION, THE LAW SOCIETY OF ONTARIO (“LSO”)
Defendants
REASONS FOR DECISION
Mr. Justice G. Dow
Released: October 11, 2023