A panel of Ontario Court of Appeal judges has allowed the appeal of a lawyer who amended his claim that the Law Society of Ontario’s disciplinary process amounted to wrongful abuse of power.
The case will now proceed in Superior Court, says Richard Watson, who represented the appellant, lawyer Paul Robson, on the part of the appeal related to malicious prosecution and the question of what constituted malice.
“In the appellant’s oral submissions on this appeal, but not in his pleadings, he said that he is a thorn in the side of the Law Society and someone the Law Society wishes to silence,” said the Nov. 23 Court of Appeal decision, Robson v. The Law Society of Upper Canada, 2018 ONCA 944, written by Associate Chief Justice Alexandra Hoy with justices Kathryn Feldman and David Paciocco concurring. “The facts pled, if true, support the inference of an improper purpose. If true, they may also point to a deliberate and dishonest wrongful abuse of the powers given to a public officer.”
Watson says the new decision is “refreshingly direct and clear.”
The law society declined to comment when contacted by Legal Feeds.
It’s the latest turn of events in a long-standing battle between Robson and the LSO, dating back to bankruptcy-related disciplinary proceedings beginning in 2002, according to a March 2018 Ontario Superior Court of Justice decision by Justice Patrick Monahan.
A 2002 trial centred on whether Robson “attempted to conceal assets, and the truth” during a bankruptcy, but a judge later found that any finding of fraud was not binding in subsequent proceedings, Hoy’s decision said. Nonetheless, the law society relied on findings of fraud when it disbarred Robson seven years later, according to Hoy.
After having his licence revoked and then reinstated, Robson filed a statement of claim in 2015 seeking $220 million. In an amended statement of claim, Robson alleges that he was wrongfully disbarred and subject to negative publicity. The LSO moved in February 2018 to dismiss Robson’s amended statement of claim as frivolous, and Monahan quashed claims for malicious prosecution and misfeasance in public office. “Reading the Amended Claim as a whole and in its entirety, it is evident that the allegations made by the Plaintiff continue to be stated in broad and general terms without any particularity. . . . the Individual Defendants continue to be left in the dark as to what they are alleged to have done that would give rise to liability for malicious prosecution or abuse of public office,” Monahan wrote in the March 6 decision.
The new Court of Appeal decision, however, overturns Monahan’s March 6 decision. The Court of Appeal judges wrote in the decision that Monahan was requiring Robson to provide “an unnecessarily high level of particularization.”
However, the Court of Appeal did not allow the appeal against one of the defendants, Jan Parnega-Welch, and did not allow Robson to admit fresh evidence, writing that the proposed evidence of bias on the part of the motion judge was “neither relevant nor cogent.”
R. Lee Akazaki, a partner at Gilbertson Davis LLP in Toronto, says the case is unlikely to have much of an impact, since there have been reforms to the law society’s disciplinary process in the years since Robson’s disbarment. In particular, he says the creation of the Law Society Tribunal in March 2014 has put more distance between the decision of the law society to prosecute a licensee and the decision of the hearing panel or tribunal to make certain rulings.
“It would be a very difficult case to bring today because it’s not the prosecutor who decides whether a hearing should be conducted. There is an actual proceedings authorization committee that’s made up of several people who say whether there seems to be enough evidence to go ahead with the prosecution — or not,” says Akazaki.
Brian Radnoff, a commercial litigator and partner at Dickinson Wright LLP in Toronto, who also represents lawyers in disciplinary cases, agreed that such cases are difficult to make on the merits, even if they proceed past the pleadings stage.
He pointed to another case, Groia v. Law Society of Upper Canada, 2018 SCC 27, which also involved a dispute with the law society, and the issue of re-litigating conduct is discussed in another trial years earlier.
“There are some circumstances — this perhaps is one of those cases, Mr. Groia’s decision is [clearly] another one of those cases — where you have to be very careful. It is very unfair to the party to basically say you are bound by this obiter decision where you either only had a limited opportunity to make representations or didn’t make representations at all on this issue, and now you are bound by this. And you are guilty of professional [misconduct.] This is another one of those cases that shows where there is a fine line in terms of preventing people from relitigating what other judges have said in what could be obiter decisions,” says Radnoff.