Court File and Parties

Sault Ste. Marie Court File No.: CV23-29310 Date: 2023-12-22 Superior Court of Justice - Ontario

Re: Robbie MacRae, Applicant And: Orlando Marino Rosa, et al, Respondents

Before: The Honourable Mr. Justice A.D. Kurke Counsel: None Heard: In Chambers

Endorsement

Background

[1] The applicant has brought an application against the Wishart Law Firm LLP, Orlando Marino Rosa, John Paul Robert Cassan, Timothy Harmer, as lawyers and in their non-lawyer capacities (collectively “Wishart”), the Office of the Public Guardian and Trustee Ontario (the “OPGT”), and the Law Society of Ontario (the “Law Society”).

[2] By letter to the court dated September 1, 2023, respondent Cassan requested pursuant to Rule 2.1.01(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, to have the application dismissed on the grounds that “it appears on its face to be frivolous.” The letter, which properly contained no argument, was copied to the applicant, among others.

[3] The court gave notice to the applicant that it was considering his application pursuant to Rule 2.1.01 and invited the applicant’s submissions with respect to that assessment. The court received submissions from the applicant within the time allocated for that purpose.

[4] The application is dismissed, as frivolous, for the following reasons.

The application

[5] The application seeks the following relief:

a. a “formal Judicial Inquiry to review the conduct of [Wishart] and to report the same to the Chief Justice of the Superior Court of Justice for Ontario”;

b. a writ of cercaria [sic] directing the respondents, other than the Law Society, to attend before Justice “Caroll” [whoever that might be], in the Superior Court, or Justice Gareau or Justice Rasaiah for a case management hearing for directions relating to how the inquiry will proceed;

c. an interim stay of proceedings of Superior Court file 27454/17 pending the hearing of the application, “in face of serious allegations of the existing Abuse of Process practices by the respondents”;

d. A stay of proceedings in the Law Society investigation into the applicant’s mental capacity and competence in matters before the Superior Court, as “this Jurisdiction is the sole purview of the Superior Court of Justice for Ontario”;

e. An order that the proper forum for this application to be heard is by one of the judges presiding over the applicant’s cases in the Superior Court;

f. That the applicant be permitted to file a comprehensive supplementary affidavit to determine whether the Law Society is going to challenge the jurisdiction of the Superior Court to control the Court’s own process;

g. A hearing with respect to the applicant’s request that his concerns of providing any information to Wishart that will assist in their collateral attack on the Superior Court be addressed by the court;

h. Direction about how the applicant is permitted to provide solicitor and client privileged information in open court;

i. An order that the respondents be required to secure all electronic files and correspondence and documents for documentary disclosure; and

j. An order that the respondents serve and file any dispute regarding the jurisdiction of the Superior Court to hear this application for a writ of cercaria [sic], abuse of process and an interim stay of proceedings 14 days prior to the scheduled hearing.

k. The applicant also raises a “Constitutional Question” that:

i. the actions of Wishart were conducted by the OPGT and with the full knowledge and support of that organization, and together, the actions of the OPGT and Wishart are “a clear violation of [the applicant’s] right to be free of government discrimination based upon [the applicant’s] mental illness; and

ii. the conduct of the OPGT constitutes a breach of the applicant’s “section 15 [viz., Charter] right” to be free of discrimination based upon mental health.

[6] The application sets out the following allegations:

a. The applicant asserts that Wishart abused the process of the Superior Court by forcing the applicant to appear before the court 27 times with respect to 3 matters after Wishart advised the Law Society of Ontario that the applicant was mentally ill and that his conduct in present litigation had become “increasingly irregular”, which had caused prejudice to the firm’s client in the case. It was alleged that the applicant’s behaviour included the fabrication of evidence.

b. Wishart expressed concern to the Law Society about the applicant’s mental health and capacity to provide professional services and to advocate on behalf of his client. The firm indicated that it was fulfilling what it perceived to be its mandatory duty to bring the matter to the attention of the Law Society. The application, in a footnote, describes extensive submissions and documentation that were provided to the Law Society on September 22, 2022, and sets out that two other such notifications were made December 22, 2022, and April 6, 2023.

c. The applicant complained that Wishart notified the Law Society but failed to notify the Superior Court about their concerns until “without notice to [the applicant]” they “strategically” alerted the judge presiding on April 27, 2023 that the applicant was suffering from a mental illness. Moreover, Wishart continued to file material with the court following notification of the Law Society.

d. The applicant detailed his own good conduct as a lawyer and explained that he contracted COVID in March 2020, and has suffered COVID-related issues for three years “including fatigue, loss of taste smell and appetite.” The applicant is still being treated for COVID-related illnesses.

e. The applicant stated that his mental health status was “purposely concealed” [viz., by Wishart] from the Superior Court. However, the applicant alleges that, following Wishart’s notification of the Law Society, Wishart forced matters into court, bullied the applicant and his clients in court proceedings, all the while knowing “that [the applicant] was mentally ill”.

f. The applicant also stated that his firm was closed after Wishart notified the Law Society about the applicant’s mental illness. The applicant appeared to claim that Wishart was motivated by a desire to be successful in court in cases against the applicant’s client by “covertly pursuing secretive relief from the Law Society and … requesting the [Law Society] to suspend [the applicant]”.

g. The applicant complained that the Law Society undertook the wrongful steps of reviewing the applicant’s competence while the applicant was engaged in a matter before the Superior Court. The applicant accused the Law Society of interfering in the Superior Court process.

h. The applicant argued that his competence in the Superior Court was a matter within the exclusive “prevue” [sic] of the Superior Court, and that, because of the conduct of Wishart, the applicant had been replaced as solicitor of record on a matter before the Superior Court.

i. The applicant complained that the OPGT failed to supervise Wishart, which the applicant asserted they had a duty to do because Wishart conducted themselves before the Superior Court “at the pleasure and appointment of the [OPGT]”. The applicant claimed to have suffered from the constant harassment, pressure and “gaslighting” by Wishart.

j. The applicant also sought orders of the court that the parties to the application provide submissions about the court’s jurisdiction to deal with matters and concerns raised by Wishart to the Law Society about the applicant’s conduct, and that Wishart be removed as counsel in the same matter from which the applicant was removed.

Discussion

Summary dismissal pursuant to Rule 2.1.01

[7] Rule 2.1.01 creates a self-contained code for the court to employ in determining whether a proceeding should be dismissed as “frivolous, vexatious, or otherwise an abuse of the process of the court.” In operative part for the purposes of this case, the rule sets out:

2.1.01 (1) The court may, on its own initiative, stay or dismiss a proceeding if the proceeding appears on its face to be frivolous or vexatious or otherwise an abuse of the process of the court.

Summary Procedure

(2) The court may make a determination under subrule (1) in a summary manner, subject to the procedures set out in this rule.

(3) Unless the court orders otherwise, an order under subrule (1) shall be made on the basis of written submissions, if any, in accordance with the following procedures:

1. The court shall direct the registrar to give notice (Form 2.1A) to the plaintiff or applicant, as the case may be, that the court is considering making the order.

2. The plaintiff or applicant may, within 15 days after receiving the notice, file with the court a written submission, no more than 10 pages in length, responding to the notice.

3. If the plaintiff or applicant does not file a written submission that complies with paragraph 2, the court may make the order without any further notice to the plaintiff or applicant or to any other party.

4. If the plaintiff or applicant files a written submission that complies with paragraph 2, the court may direct the registrar to give a copy of the submission to any other party.

5. A party who receives a copy of the plaintiff's or applicant's submission may, within 10 days after receiving the copy, file with the court a written submission, no more than 10 pages in length, responding to the plaintiff's or applicant's submission, and shall give a copy of the responding submission to the plaintiff or applicant and, on the request of any other party, to that party.

Request for Order

(6) Any party to the proceeding may file with the registrar a written request for an order under subrule (1).

[8] Developing jurisprudence offers guidance for the assessment pursuant to Rule 2.1.01. The rule is not for “close calls”. It has been called a “blunt instrument” and there must be a basis in the pleading for resort to the expedited process of this rule as opposed to other rules that can accomplish the same end: Scaduto v. Law Society of Upper Canada, 2015 ONCA 733, at paras. 7-8; leave ref’d [2015] S.C.C.A No. 488; Khan v. Krylov & Co. (2017), 2017 ONCA 625, 138 O.R. (3d) 581, at para. 12. Mere lack of merit is insufficient ground to dismiss a proceeding: Collins v. Ontario, 2017 ONCA 317, at para. 19; leave ref’d [2017] S.C.C.A. No. 245.

[9] Dismissal is merited only if the case is frivolous on its face after making generous allowance for deficiencies in pleading, and if there is reason to resort to the expedited process of this rule: Asghar v. Alon, 2015 ONSC 7823, at para. 4. The resort to the expedited rule, as opposed to a motion under rules 21 or 25 can be justified by a concern that the subject of an action is so clearly frivolous “as to make proceeding on regular notice an utter waste of time, money, and resources for all involved”: Gao v. Ontario (Workplace Safety and Insurance Board), 2014 ONSC 6497, [2014] O.J. No. 5307 (Sup. Ct.), at para. 12.\

The applicant’s response

[10] The applicant responded to the court’s request for his input into the Rule 2.1.01 process.

[11] In his response, the applicant reiterated his view that the respondent lawyers had orchestrated a “continued focused and purposeful fraud upon the Superior Court of Justice”. This “covert operation” involved the Law Society of Ontario.

[12] The applicant submits that the test to be applied is whether it is “plain and obvious” that the plaintiff’s application discloses no reasonable claim. He submits that his application is clearly valid “on its face”. The request by the lawyer defendants for the court to use a summary procedure to remove the applicant’s “right to redress” is an abuse of the court’s process.

[13] Given what the respondents had done to him, the applicant submits that it is unfair to further victimize the applicant by requiring a response to the lawyers who commenced this summary process, and an abuse of the court’s process. The applicant requests that the respondents’ request for this summary procedure be dismissed as an abuse of process which further victimizes a “31-year member of the Ontario Bar.”

Should the application be dismissed?

[14] The central request made by the applicant in his application is for a judicial inquiry to investigate the allegedly nefarious conduct of Wishart in falsely raising with the Law Society the applicant’s mental health as a concern with respect to his competence, and in then exploiting the Law Society’s investigation into the applicant to improve its own position in ongoing cases involving the applicant in the Superior Court.

[15] However, this court has no jurisdiction to initiate a judicial inquiry. A judicial inquiry is a creation of the executive branch of government, such as pursuant to the Inquiries Act, R.S.C., 1985, c. I-11, or the Public Inquiries Act, 2009, S.O. 2009, c. 33, Sched. 6. For an example, see Canada (Attorney General) v. Canada (Commissioner of the Inquiry on the Blood System), 1996 CanLII 4069 (FC), [1996] 3 F.C. 259 (T.D.). This court has no jurisdiction to launch such a proceeding, and the application’s request that this court do so is frivolous; it is plain and obvious that the application cannot succeed.

[16] Other aspects of the application also bear discussion.

[17] The application seeks the relief of an order of “Cercaria”, which appears to be a request for a writ of certiorari, to coerce parties to a case management hearing concerning application issues. Such an order is made to correct the ruling of a lower court or tribunal, and its invocation as a means of ordering parties for a trial management conference is misplaced and frivolous.

[18] In aid of the application’s primary relief, it also seeks to stay proceedings before the Law Society, apparently relating to an investigation into the applicant’s competence to practice law. The application asserts that it should be the Superior Court, and not the Law Society, that determines this issue. This request is frivolous on its face. It is plain and obvious that this request cannot succeed.

[19] It would appear from the application that Wishart notified the Law Society on three occasions that the applicant’s mental health was affecting his capacity to provide professional services. It appears as well that the Law Society has at least launched an investigation into the applicant’s competence, as it has the authority to do. The applicant indicates that his practice was closed after the Law Society was notified by Wishart. The mechanism or duration of that closure is not described in more detail.

[20] According to the application, the Law Society is interfering in ongoing Superior Court proceedings, apparently by making orders that affect the applicant’s practice and his ability to participate as counsel in cases before the Superior Court. He appears to have been removed from at least one case. It is the applicant’s position that only the Superior Court has jurisdiction to consider his competence to appear before this court.

[21] However, by legislation in this province, the Law Society of Ontario is specifically tasked with reviewing a licensee’s professional competence and may apply for a hearing before the Law Society Tribunal to determine whether a licensee is failing or has failed to meet standards of professional competence: Law Society Act, R.S.O. 1990, Chapter L.8, ss. 41-44. The Rules of Professional Conduct of the Law Society of Ontario in r. 7.1-3(e) requires of lawyers that they report to the Law Society conduct by a lawyer that raises a substantial question about the licensee’s capacity to provide professional services, such as appearing before the province’s courts.

[22] The Law Society is a proper forum for determinations of a lawyer’s competence to practice law and other issues that affect a lawyer’s right to practice. At proceedings before the Law Society Tribunal or in the Divisional Court in appropriate circumstances, a member of the Law Society can raise Charter issues that affect the member: see, e.g., Caruso v. The Law Society of Ontario, 2023 ONSC 6744 (Div. Ct.), at paras. 29-32. If the applicant is not satisfied with a Tribunal decision, he may appeal to the Appeal Division of the Tribunal, and from there, to the Divisional Court. Moreover, the applicant is likewise free to address his own concerns about Wishart’s conduct to the Law Society.

[23] Whatever the applicant’s views about the bona fides of Wishart’s or the Law Society’s conduct, at the least it appears that the Law Society is an appropriate forum by its enabling legislation to consider the competence of lawyers such as the applicant. If something done by the Law Society affects the fairness of trial proceedings in the Superior Court, that can be addressed in the trial proceeding or on an appeal of the trial decision. Absent exceptional circumstances, it is inappropriate for the court to interfere in matters that are ongoing before administrative tribunals. Rather, the applicant’s right of appeal will ensure redress should the circumstances warrant it at the conclusion of the Law Society proceedings: Holland, L.P. v. Labourers’ International Union of North America, [2023] O.J. No. 572 (Div. Ct.), at para. 6.

[24] As for the OPGT, the application offers almost nothing to explain that organization’s inclusion in the list of respondents. The application asserts that the OPGT had some control over at least one other respondent, but no explanation for that position. This is not simply a drafting issue; it is not possible to determine the OPGT’s place in the constellation of facts that lie behind the application, or what wrong the OPGT is alleged to be responsible for: Nenmour v. Durdle, [2015] O.J. No. 3074 (Sup. Ct.), at para. 11; Lin v. Toronto (City) Police Services Board, [2016] O.J. No. 5540 (Sup. Ct.). In such circumstances the application can only be deemed to be frivolous with respect to the OPGT.

[25] As this court has no jurisdiction to grant a judicial inquiry, the central relief around which the applicant’s other requests are grouped, the application is frivolous on its face. Given the Law Society’s enabling legislation, the application is frivolous on its face in seeking that this court interfere in or stay the Law Society’s determination of competence of legal practitioners, one of the chief functions of the Law Society of Ontario. The claim as against the OPGT, which offers no explanation for the part played by that organization in the circumstances that lie behind this case, can only be seen as frivolous on its face. It is plain and obvious that none of the applicant’s claims has any chance of success.

Use of the expedited process in Rule 2.1.01

[26] In my view, the court should have resort to the expedited process in Rule 2.1.01, rather than await motions by the respondents under Rule 21 or Rule 25.

[27] The central request of the application, a judicial inquiry, is not possible for this court to grant. If the matter is permitted to continue, responses will have to be filed by several individual lawyers and a law firm, and on behalf of the OPGT and the Law Society of Ontario. The respondents will then be required to bring motions to seek essentially the same relief that is available here. Permitting the matter to continue will simply drive up legal costs, increase delay, and unnecessary multiply and lengthen legal proceedings before the court. It is appropriate to use the expedited process of Rule 2.1.01.

Conclusion

[28] For the above reasons, the proceeding is dismissed, as frivolous. I offer no opinion on the merits of the applicant’s claims of abusive conduct by the respondents, but merely observe that any relief available to the applicant does not lie in this application before this court.

The Honourable Mr. Justice A.D. Kurke Date: December 22, 2023