Court File and Parties

COURT FILE NO.: CV-22-00692073-0000 DATE: 20240311 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ANDREW SPASIW, Applicant AND: LAW SOCIETY ONTARIO, MCMILLAN LLP, DAVID MILSOVEC and BENJAMIN BATHGATE, Respondents

BEFORE: Merritt J.

COUNSEL: Mr. Andrew Spasiw, Self-Represented Applicant Ben Kates, for the Respondent, The Law Society of Ontario Jordan Goldblatt, for the Respondents, McMillan LLP and Benjamin Bathgate Jody Brown, for the Respondent, David Milosevic

HEARD: February 9, 2024

Endorsement

[1] The applicant Mr. Andrew Spasiw seeks a declaration that the respondents violated his rights under the Canadian Charter of Rights and Freedoms, and seeks a remedy under s. 24(1) of the Charter.

[2] The Law Society of Ontario (the “LSO”) and the respondents McMillan LLP, Benjamin Bathgate (collectively, the “McMillan Respondents”) and David Milosevic bring motions to strike the Notice of Application without leave to amend on the basis that the application is an abuse of process because it is a collateral attack on other proceedings and because it is plain and obvious it cannot succeed as it discloses no viable cause of action.

[3] Although the motions brought by the respondents have common themes, I will address each motion separately.

[4] The LSO filed an affidavit in support of its motion under r. 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules"). The LSO also brought a motion under r. 21.01 of the Rules. I note that no evidence is admissible on a motion under r. 21.01 and I have not considered the affidavit evidence in my analysis under r. 21.01.

[5] The McMillan Respondents and Mr. Milosevic bring motions under r. 21.01 and have not filed any evidence on their motions.

Decision

[6] The application is struck without leave to amend. It is plain and obvious the application cannot succeed. Mr. Spasiw’s Charter claims against all of the respondents have no prospect of success. The application is an abuse of the court’s process because it is a collateral attack on a complaint that Mr. Spasiw filed with the LSO.

Background

[7] In a separate oppression remedy proceeding commenced by Mr. Spasiw’s corporation Quality Green Inc. (“QGI”) against Quintet Ventures Inc. (“Quintet”), Mr. Spasiw was represented by Mr. Milosevic for a time but then became unrepresented. Quintet was represented by the McMillan Respondents.

[8] Mr. Spasiw’s current application contains allegations that Mr. Milosevic did not advise him on alternate dispute resolution before commencing the oppression remedy proceeding and did not actively pursue it. Mr. Spasiw alleges that Mr. Bathgate did not provide a timely defence, refused to cooperate on a discovery plan, “would not agree to reasonable requests concerning trial dates, adjournments, the waiver of procedural formalities and similar matter[s]…” and refused to go to arbitration in a timely manner.

[9] Mr. Spasiw made a complaint to the LSO about Mr. Bathgate (the “Complaint”). The Complaint related to Mr. Bathgate’s breach of the Rules.

[10] Upon receipt of a complaint, if the LSO has reasonable grounds to believe a lawyer has engaged in professional misconduct it can, with authorization from the Proceeding Authorization Committee, make an application to the Law Society Tribunal Hearing Division: Law Society Act, R.S.O. 1990, c. L.8 (the “LSA”), s. 34(1); By-Law 11, ss. 5(1) and (2), made pursuant to the LSA.

[11] The LSO determined that the Complaint related to procedural issues which were for the court to determine and took no action with respect to the Complaint.

[12] LSO investigations are not mandatory. Section 49.3(1) of the LSA provides that the LSO "may conduct an investigation into a licensee's conduct if the [LSO] receives information suggesting that the licensee may have engaged in professional misconduct or conduct unbecoming a licensee" (emphasis added).

[13] If a complainant is not satisfied with the LSO’s decision not to investigate, they can request a review by the LSO Complaints Resolution Commissioner (the “CRC”).

[14] Mr. Spasiw asked the CRC to review the outcome of the Complaint and commenced this application. The CRC concluded that the LSO’s consideration of the Complaint was reasonable and recommended no further action be taken. The decision of the CRC is final and not subject to appeal: LSA, s. 49.19.

[15] In limited circumstances, the decision of the CRC is subject to judicial review under the Judicial Review Procedure Act, R.S.O. 1990, c. J 1 (the “JRPA”), such as when the CRC improperly declines to exercise their jurisdiction: Fabrikant v. Law Society of Ontario, 2018 ONSC 7393. Mr. Spasiw did not bring an application for judicial review and the time for doing so has expired: JRPA, s. 5(1). Instead, he commenced this application.

[16] This application seeks to challenge the original decision of the LSO on the basis of breaches of the Charter and s. 4.2 of the LSA and alleges that the other respondents breached Mr. Spasiw’s Charter rights. Mr. Spasiw seeks a remedy pursuant to s. 24(1) of the Charter.

[17] After receiving the motions to strike, Mr. Spasiw provided counsel with a draft amended Notice of Application which he also uploaded to CaseLines. This document gives the court some insight into how Mr. Spasiw would amend his application, if it is struck with leave to amend.

Issues

[18] There are two issues:

1. Should the application be struck?
2. If so, should leave to amend be granted?

Analysis

A. The LSO motion

Rule 25.11

[19] Rule 25.11 of the Rules provides:

The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,

(a) may prejudice or delay the fair trial of the action; (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the court.

[20] On a motion under r. 25.11, the court will read the pleading generously and will only strike out a pleading if it is plain and obvious that the pleading cannot succeed: Brunn v. Halton Children's Aid Society, 2016 ONSC 6195, at para. 29 (b); Martin v. Ontario, [2004] O.J. No. 2247, at paras. 6-10, aff’d [2005] O.J. No. 4071.

[21] It is plain and obvious the application cannot succeed. Mr. Spasiw has availed himself of the LSO’s complaints process including a review by the CRC. This application is an abuse of the court’s process because it is a collateral attack on the LSO’s complaints process and decision: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 34; Currie v. Greater Sudbury (Police Services Board), 2019 ONSC 5129, at para. 39.

Rule 21

[22] Rule 21.01(1)(b) provides:

A party may move before a judge,

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,11

and the judge may make an order or grant judgment accordingly.

[23] The relief available under r. 21 also applies to applications, per r. 14.09.

[24] On a r. 21.01(1)(b) motion, a pleading will only be struck out where, assuming the facts pleaded to be true, it is plain and obvious that the claim is certain to fail because it discloses no reasonable cause of action – that is, where the pleading has no reasonable prospect of success: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.

[25] Mr. Spasiw alleges that the LSO breached s. 4.2 of the LSA, ss. 2(b), 7 and 15(1) of the Charter, and "principles of fundamental justice.”

[26] Mr. Spasiw pleads that his rights were infringed as follows:

Principles of Fundamental Justice: “The applicant was unable to be heard or judged by an impartial decision maker” and “[t]he respondents [sic] actions and omissions were oppressive, vexatious and violated the sense of fair play and decency.”

Section 2(b): “The respondents [sic] discretion in the administration of justice restricted the applicants [sic] expression, to be heard and judged by an impartial decision maker.”

Section 7: “The Respondents [sic] discretion in the administration of justice deprived the applicant of his liberty and security interests; interfered with decisions that were of fundamental importance, and compromised his physiological integrity; the deprivation was with offence to the principles of fundamental justice.”

Section 15(1): “The respondents did not treat the applicant with fundamental equality before the law to the applicant”.

[27] A similar claim for breaches of the LSA and the Charter was struck in Khan v. Law Society of Ontario, 2021 ONSC 6019. In Khan, the court held, at para. 17, that the breach of a statutory obligation can only give rise to a right of recovery through civil proceedings if the statute so provides. The LSA does not do so. The court also held, at paras. 20 and 23-24, that breaches of the Charter or the infringement of rights must be specified with sufficient facts pleaded to support the allegations.

[28] Here, Mr. Spasiw has not pled sufficient facts to support a claim that the LSO breached his Charter rights.

[29] Based on the facts pled, there is no viable cause of action. The decision to investigate a complaint is discretionary: LSA, s. 49.3(1). The decision whether to apply to the Tribunal for a determination by the Hearing Division is also discretionary: LSA, s. 34(1). Complainants do not have a right to participate in the investigation of complaints or in conduct applications. The LSO did not deny Mr. Spasiw any rights and there are no facts pled to suggest the LSO’s exercise of discretion was arbitrary or abusive or otherwise infringed Mr. Spasiw’s rights.

[30] Mr. Spasiw claims his rights to freedom of expression under s. 2(b) of the Charter have been infringed. Mr. Spasiw was permitted to make his complaint and “express” his views regarding Mr. Bathgate’s conduct. Section 2(b) does not require the LSO to take action or respond in a particular manner: Haig v. Canada, [1993] 2 S.C.R. 995, at pp. 1035, 1042.

[31] Mr. Spasiw claims his liberty and security rights under s. 7 of the Charter have been infringed. Section 7 has no application in this case because it does not protect economic interests: Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482, 460 D.L.R. (4th) 514, at para. 36. Mr. Spasiw’s liberty and security interests are not at stake: Blencoe v. British Columbia (Human rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 54; R. v. Morgentaler, [1988] 1 S.C.R. 30.

[32] Mr. Spasiw claims his equality rights under s. 15(1) of the Charter have been infringed. This claim has no reasonable prospect of success because Mr. Spasiw has not alleged that the LSO has discriminated against him on the basis of any enumerated or analogous grounds such that a disadvantage is perpetuated: Foley v. Victoria Hospital London Health Sciences Centre, 2023 ONSC 7155, at paras. 93-95. The LSO accepted his Complaint and allowed him a review by the CRC. There is no suggestion that it treated him differently than other complainants in similar circumstances.

[33] The remedy claimed under s. 24(1) of the Charter is not specified in the application, but the affidavit filed in support of the application makes it clear that Mr. Spasiw is claiming damages of $1.5 million for pain and suffering and loss of opportunity, $7.5 million for the loss of opportunity to Astues Ventures, $12 million for the loss of opportunity to Distributed Consensus Inc., and $250 million to establish a charitable organization.

[34] Normally I would not consider any evidence on a r. 21 motion; however, taking into consideration the fact that Mr. Spasiw is self-represented, I will consider his statements in his affidavit as part of his pleading.

[35] Damages are not available in a case such as this because under s. 9 of the LSA, the LSO is immune from claims for damages for acts done in good faith in the performance of its statutory duties: Polis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618, at para. 23.

[36] Mr. Spasiw has not pled that the LSO acted in bad faith or pled any facts that are capable of supporting such a finding. In his draft amended Notice of Application, Mr. Spasiw has added the words “bad faith” in two paragraphs. It is not sufficient to baldly plead “bad faith”. Allegations of bad faith must be supported by facts and particulars of improper conduct: Yan v. Hutchinson, 2023 ONCA 97; Khan, at para. 10.

[37] The applicant is not entitled to any other remedy because he has not pled any facts that would support a claim that the LSO breached any of his Charter rights. He has not demonstrated that damages are a just and appropriate remedy: Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28.

B. The McMillan Respondents’ rule 21 motion

[38] The McMillan Respondents say that Mr. Spasiw’s application, as it pertains to them, cannot succeed because the Charter does not apply to them and there is a general prohibition regarding claims against counsel who act for adverse parties.

[39] Section 32(1) of the Charter provides:

This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

[40] The fact that an entity performs a public function or service or the fact that an activity is public in nature, does not bring it within the purview of “government” under s. 32(1). The Charter only applies if the government controls a private entity to the extent that it can be characterized as “government” or if the private entity is implementing a specific government policy or program: Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, at paras. 43-44.

[41] The provision of legal services by the McMillan Respondents does not attract Charter rights. The decision by the McMillan Respondents not to engage in alternative dispute resolution is a purely private action and not a government activity.

[42] Even if the Charter were to apply to the McMillan Respondents, Mr. Spasiw has not pled specific breaches of his Charter rights.

[43] Mr. Spasiw has pled that his s. 2(b) rights have been infringed because he has been “restricted” in his “expression, to be heard and judged by in impartial decision maker.” The claim cannot succeed because Mr. Spasiw has not pled any material facts to support it.

[44] Mr. Spasiw has pled that s. 7 rights have been infringed because the respondents interfered with his liberty and security interests as a result of their “discretion in the administration of justice.” An incorrect exercise of discretion in the conduct of a court or administrative proceeding is dealt with by a motion, an appeal or judicial review and not by way of a claim for damages for breach of Charter rights.

[45] Mr. Spasiw has not set out any facts to show that his right to life, liberty or security of the person was affected in a manner contrary to the principles of fundamental justice: Shaulov v. Law Society of Ontario, 2022 ONSC 2732, 512 C.R.R. (2d) 1, at para. 69.

[46] Mr. Spasiw has not pled any material facts to support a claim that the McMillan Respondents breached his s. 15 Charter rights. Also, this claim cannot succeed because Mr. Spasiw has not alleged that the McMillan Respondents have discriminated against him on the basis of any enumerated or analogous grounds such that a disadvantage is perpetuated.

[47] A lawyer owes no duty of care to clients of opposing counsel in court proceedings. Lawyers owe a duty of care to their own clients. Suing opposing counsel because of the manner in which they litigate is generally an abuse of process: Ahsan v. Minden Gross LLP, 2024 ONSC 1307 at paras 5 and 6. If a lawyer owed a duty to both their own client and to the opposing party, the lawyer would be in a conflict of interest: Robins v. 2758729 Ontario Inc. et al, 2023 ONSC 4367, at para. 25.

[48] To allow a claim against an opposing party’s counsel would be against public policy. Such a claim would interfere with the loyalty between a solicitor and their client and encourage re-litigation and collateral attacks on decisions reached in the disputes between litigants. It would fundamentally alter the adversarial legal system for a lawyer for one party in a legal proceeding to be accountable to the other party to conduct the proceeding in good faith: Crown Crest Financial Corp. v. Sabbah, 2019 ONSC 7114, 61 C.C.L.T. (4th) 292, at paras. 26-28; Chuvalo v. Worsoff, 2022 ONSC 4079, 75 R.F.L. (8th) 94.

[49] In Chuvalo, at paras. 32-33, Chown J. noted the following:

In our system, the lawyer gives advice, and the client makes decisions and instructs the lawyer. A lawyer’s advice as to strategy is typically subject to privilege and cannot be disclosed by the lawyer without the client’s consent. An adverse party who feels wronged by the strategy taken is not entitled to know if the strategy was taken in accordance with or against the adverse lawyer’s advice. Parties cannot get around this by suing the adverse lawyer.

Our system requires that any complaint over the strategy taken by an adverse party must be resolved in the litigation where that strategy was taken, and not in a further lawsuit. If our system was without this feature, serial lawsuits could spawn from a single underlying dispute. “There would be a temptation, which many would find irresistible, to relitigate in actions against their opponent’s counsel the issues which they have lost in the main litigation, or to attempt to handicap the other side by eliminating experienced and knowledgeable counsel from the case.” [Footnotes omitted.]

[50] The conduct of the McMillan Respondents in the underlying oppression remedy proceeding does not give rise to a cause of action in this application.

C. Mr. Milosevic’s rule 21 motion

[51] Mr. Milosevic’s only connection to Mr. Spasiw is that he was retained to represent Mr. Spasiw for approximately 11 months.

[52] Mr. Spasiw’s allegations seem to be that Mr. Milosevic did not demand a defence promptly, and did not advise Mr. Spasiw about alternative dispute resolution.

[53] Mr. Spasiw did not file a complaint against Mr. Milosevic with the LSO.

[54] It is plain and obvious that the application against Mr. Milosevic cannot succeed because it does not disclose a cause of action.

[55] As set out above, the Charter does not apply to private individuals. This includes lawyers who provide services in the courts.

[56] The Charter could only apply to Mr. Milosevic if he were acting as a government agent or performing some specific government function. It is not sufficient that he provided services which are regulated for the public good: McKitty v. Hayani, 2019 ONCA 805, 439 D.L.R. (4th) 504, at para. 48.

[57] In his oral submissions, Mr. Spasiw requested that the court dismiss the respondents’ motions because they are res judicata. Apparently there was an unsuccessful r. 2.1.01 request to dismiss the application.

[58] Rule 2.1.01(1) provides:

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.

[59] On February 23, 2023, Chalmers J. dismissed the respondents’ request for an order dismissing the application pursuant to r. 2.1.01 at that early stage and without a motion. He did not make any comment on the merits of the application. The fact that Chalmers J. refused to dismiss the application under r. 2.1.01 does not mean that the current motions are res judicata.

[60] I have now had the benefit of the affidavit filed by the LSO on the r. 25.11 motion, written factums, briefs of legal authorities, oral submissions of all parties, and the draft amended Notice of Application which were not before Chalmers J. Based on all of the material provided, I have concluded that the application has no reasonable prospect of success.

[61] In his oral submissions, Mr. Spasiw argued that he is not just participating in a legal exercise or game. He says his application is about the values and integrity of the justice system. He submits that the legal system should test the truth of his allegations and allow him the opportunity to have his case determined on its substantive merits. He submits that his application should not be dismissed because of procedural rules, procedural “diversions” or “gamesmanship”, and “strategic maneuvering.”

[62] “The right to have a matter decided on its merits does not trump the obligation to comply with court orders and procedural court rules. In civil litigation, they exist in a balance…”: Allen v. Kumar, 2022 ONSC 4223, 87 C.P.C. (8th) 293, at para 49. The power to strike claims that have no reasonable prospect of success is an important tool essential to effective and fair litigation. It weeds out hopeless claims and fosters efficiency in litigation. This efficiency contributes to better justice. The court’s role as gatekeeper in eliminating untenable claims at an early stage is increasingly important in the context of scarce judicial resources and systemic delay: Floryan v. Luke et al., 2023 ONSC 5108, at paras. 8 (i) and (j).

Should Leave to Amend be Granted?

[63] The draft amended Notice of Application includes the following additional paragraphs:

a.1) The partnership between Quintet and McMillan then stripped the applicant of all value in his property through their power and control over the corporation, cementing the fraudulent acquisition of the applicant's valuable QGI securities.

b.1) From July to December 2020, the applicant observed that Mr. Milosevic, despite being compensated to initiate litigation, demonstrated a reluctance or incapacity to actively pursue legal action within the public justice system. This inaction, contrasting with the fundamental principle of independence intrinsic to the legal profession, suggested a possible willful neglect or bad faith on Mr. Milosevic's part. Such conduct not only compromised the critical independence of the bar but also denied the applicant timely justice during a crucial phase of the dispute, resulting in significant harm

c.1) In their role as officers of the court. McMillan's refusal to engage in any form of dispute resolution - particularly in a matter of significant consequence to the applicant, marked by allegations of fraud - constitutes a profound abuse of the judicial process, undermining the essential function of the legal system in addressing and resolving critical disputes.

f) Court officers like the respondents, are inherently bound to adhere to the Canadian Charter of Rights and Freedoms in their judicial conduct, they hold responsibility to ensure that their actions in public legal processes adhere to its principles and uphold the integrity of the justice system.

g.1) The principles of fundamental justice are legal principles upon which there is some consensus that they are vital or fundamental to our societal notion of justice.

h.1) The principles of fundamental justice, deeply rooted in our societal values, are intertwined with the tenets of natural justice, which include not only impartial adjudicators and fair hearings but also a profound respect for human dignity

k.1) The rule of law mandates a uniform and equitable standard for all under its jurisdiction. ensuring that everyone is entitled to its protections and no one is exempt from its consequences. The respondents, in their actions, have contravened this principle of equality as enshrined in the rule of law.

l) The respondents knowingly caused harm to the applicant with deliberate action and omission which was done either willfully blind or in bad faith, and was an abuse of power that offended the Charter.

[64] Mr. Spasiw’s draft amended Notice of Application also claims a breach of s. 2(a) of the Charter, which protects freedom of conscience and religion.

[65] To succeed under s. 2(a), Mr. Spasiw must show that he has a sincerely held and profoundly personal belief with a moral dimension and that the challenged law interferes with his ability to act in accordance with his beliefs: Affleck v. The Attorney General of Ontario, 2021 ONSC 1108, 480 C.R.R. (2d) 148, at paras. 38-44 (and cases cited therein).

[66] Leave to amend is granted where the deficiencies may be cured by an appropriate amendment: South Holly Holdings Limited v. The Toronto-Dominion Bank, 2007 ONCA 456, at para. 6.

[67] Mr. Spasiw is not granted leave to amend the Notice of Application because it is plain and obvious that he has no tenable cause of action on the facts contained in the Notice of Application or in the draft amended Notice of Application and the claim is an abuse of process: White v. Her Majesty the Queen et al., 2011 ONSC 5816, at para. 24.

Costs

[68] If the parties cannot agree on the issue of costs, I will consider brief written submissions. These costs memoranda shall not exceed three pages in length (not including any bill of costs or offers to settle). The respondents shall file their costs submissions within 15 days of the date of this endorsement. The applicant shall file his costs submissions within 15 days of receipt of the respondents’ materials. The respondents may file a brief reply within five days thereafter. If submissions are not received by March 29, 2024 the file will be closed and the issue of costs considered settled.

Merritt J. Date: March 11, 2024