Court File and Parties

COURT FILE NO.: CV-24-00721211-0000 DATE: 20241031 ONTARIO SUPERIOR COURT OF JUSTICE

RE: ANTONIO CARUSO, Applicant -and- LAW SOCIETY OF ONTARIO / BARREAU DE L’ONTARIO, LAW SOCIETY TRIBUNAL / TRIBUNAL DU BARREAU, Respondents

BEFORE: L. Brownstone J.

COUNSEL: Applicant, self-represented Jasmeet Kala, for the Respondent Law Society of Ontario/ Barreau de l’Ontario Lisa Mallia, for the Respondent Law Society Tribunal/ Tribunal du Barreau

HEARD: In writing

Endorsement

[1] On October 8, 2024, I directed the registrar to give notice to the applicant in Form 2.1A that the court is considering making an order under r. 2.1.01(2).

[2] I have received and reviewed the applicant’s submissions in response to that notice. For the reasons that follow, I am dismissing the application under r. 2.1.01.

Rule 2.1

[3] Rule 2.1.01(1) provides as follows:

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.

[4] This rule is not to be used for “close calls”. The frivolous, vexatious, or abusive nature of the proceeding should be apparent on the face of the proceeding: Tewari v. Sekhorn, 2024 ONCA at para. 5. The rule is to be used in the clearest of cases where the abusive nature of the proceeding is apparent on its face and there is a basis in the pleading to resort to the attenuated process: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733 at para. 8. Rule 2.1 is “aimed at something different than motions under rules 21 and 25…[T]he substance may be so clearly frivolous as to make proceeding on regular notice an utter a waste for time, money, and resources for all involved”: Gao v. Ontario WSIB, 2014 ONSC 6497.

The application

[5] The notice of application seeks orders against both respondents, the Law Society of Ontario (“LSO”) and the Law Society Tribunal (“the Tribunal”), under s. 137.1 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The applicant seeks to have proceedings against him at the Tribunal stayed and declared to be vexatious and an abuse of process. He seeks orders directing the LSO to comply with “statutes, mandate, regulation, by-law and procedures” moving forward, and directing the Tribunal to conduct its proceedings in accordance with its rules, in an impartial and reasonable way. In addition, the applicant seeks a declaration that the LSO is attempting to silence him from advocating publicly for the expansion of paralegals’ scope of practice.

The Anti-SLAPP provisions

[6] As noted, the application is brought under s. 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43, the anti-SLAPP (strategic lawsuits against public participation) provision. The relevant provisions state in part as follows:

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

(2) In this section,

“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

137.2 (1) A motion to dismiss a proceeding under section 137.1 shall be made in accordance with the rules of court, subject to the rules set out in this section, and may be made at any time after the proceeding has commenced.

137.4 (1) If the responding party has begun a proceeding before a tribunal, within the meaning of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and the moving party believes that the proceeding relates to the same matter of public interest that the moving party alleges is the basis of the proceeding that is the subject of his or her motion under section 137.1, the moving party may file with the tribunal a copy of the notice of the motion that was filed with the court and, on its filing, the tribunal proceeding is deemed to have been stayed by the tribunal.

[7] The history and interpretation of the anti-SLAPP provisions are considered in detail by the Court of Appeal in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, where the court explained in part as follows:

[7] Stripped to its essentials, s. 137.1 allows a defendant to move any time after a claim is commenced for an order dismissing that claim. The defendant must demonstrate that the litigation arises out of the defendant's expression on a matter relating to the public interest. If the defendant meets that onus, the onus shifts to the plaintiff to demonstrate that its lawsuit clears the merits-based hurdle in s. 137.1(4)(a) and the public interest hurdle in s. 137.1(4)(b)….

[8] Mr. Caruso attempts to bring a proceeding under s. 137.1 as an applicant, not a responding party. He is not a defendant in any court proceeding. He states he is being silenced in LSO proceedings. He seeks orders staying LSO disciplinary proceedings against him that appear to be ongoing before the Tribunal.

[9] It has been determined that s. 137.1 does not provide this court with jurisdiction to dismiss a proceeding that is pending before a tribunal; in the context of s. 137.1, “proceeding” refers to civil proceedings: Donovan v. (Waterloo) Police Services Board, 2019 ONSC 818.

Related proceedings

[10] Mr. Caruso refers to a pending appeal at the Court of Appeal. In Caruso v. The Law Society of Ontario, 2023 ONSC 6744, the Divisional Court dismissed Mr. Caruso’s application for declaratory relief in respect of the LSO’s restriction on his scope of practice. Both that litigation and the within application concern the LSO’s restriction of paralegals’ ability to provide certain immigration-related legal services. The Divisional Court application raised a s. 7 Charter argument. An appeal, or motion for leave to appeal, of this decision appears to be the Court of Appeal matter to which Mr. Caruso refers in this application.

[11] In the within application, Mr. Caruso raises issues about his criticism of the LSO restriction, and complaints about recent and seemingly ongoing LSO proceedings related to his conduct. Some of these can be found at Law Society of Ontario v. Caruso, 2024 ONLSTH 104; Law Society of Ontario v. Caruso, 2024 ONLSTH 85; Law Society of Ontario v. Caruso, 2024 ONLSTH 74. This last proceeding was a motion before the Tribunal to stay Mr. Caruso’s conduct proceeding pending the outcome of this anti-SLAPP application.

[12] In his submissions, Mr. Caruso states that the LSO started Tribunal proceedings against him based on allegations of advocating to practice outside his scope of practice, despite the appeal pending in the Court of Appeal. The Tribunal proceeding further considers allegations of incivility of comments Mr. Caruso made during the election process, which Mr. Caruso states is speech that occurred outside of his practice as a paralegal. He argues that the LSO does not have the authority to regulate political speech. Mr. Caruso relies on Hansman v. Neufeld, 2023 SCC 14; Strom v Saskatchewan Registered Nurses’ Association, 2020 SKCA 112; Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 SCR 562, and Crevier v. A.G. (Québec) et al., [1981] 2 S.C.R. 220 for the proposition that the actions of the LSO in prosecuting him are improper. He argues that he is not receiving a fair hearing at the Tribunal and provides the LSO’s written submissions from those proceedings.

[13] Mr. Caruso argues that if proper principles of statutory construction are applied in accordance with Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 SCR 27 and Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, the LSO will be seen to be acting outside of its jurisdiction. He makes arguments about the merits of his disciplinary proceeding with reference to Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360.

[14] Mr. Caruso complains that the respondents did not respond to his submissions. I did not direct the registrar to provide them with a copy of Mr. Caruso’s submissions or seek their response.

Disposition

[15] I find that this application is, on its face, frivolous or vexatious or otherwise an abuse of the process of the court for the following reasons:

– it seeks relief the court does not have the jurisdiction to grant, namely a stay of the proceedings before a tribunal; – there is no civil proceeding pending to which s. 137.1 could be applied; – to the degree the application seeks other relief relating to ongoing Tribunal proceedings, that relief must properly be sought before the Tribunal or the Divisional Court in an application for judicial review; and – there are multiple proceedings raising the same issues before the Tribunal and possibly the Court of Appeal.

[16] The arguments raised by Mr. Caruso and summarized in paragraphs 12 and 13 above are arguments that he has made or could have made before the Divisional Court and/or the Tribunal. That is where they belong.

[17] In his submissions in response to the notice that the court is considering making an order under r. 2.1.01(2), Mr. Caruso states that if there are any irregularities in the proceeding, he should be permitted to fix them. He explains that the drafting is lengthy because he is required to provide precision and particularity in accordance with Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618 and Conway v. The Law Society of Upper Canada, 2016 ONCA 72.

[18] However, the issues I have identified above are not drafting deficiencies which can be cured. They are the signs of a vexatious proceeding that duplicates other proceedings and is brought without jurisdiction. Allowing the matter to proceed is so clearly vexatious that it would be an “utter waste of time and resources for all involved.”

[19] The application is dismissed.

L. Brownstone J. Date: October 31, 2024