



COURT OF APPEAL FOR ONTARIO

CITATION: Robson v. The Law Society of Upper Canada, 2017
    ONCA 468

DATE: 20170607

DOCKET:
C62812

Lauwers, Hourigan and Benotto JJ.A.

BETWEEN

Paul Alexander Robson

Plaintiff (Appellant)

and

The Law Society of Upper Canada, Zeynep Onen,
    Mark Pujolas, Lisa Freeman and Jan Parnega-Welch

Defendants (Respondents)

Richard Watson, for the appellant

Sean Dewart and Ian McKellar, for the respondents

Heard: May 18, 2017

On appeal from the judgment of Justice
Stephen
    E. Firestone
of the Superior Court of Justice, dated
September
    14, 2016, with reasons reported at 2016 ONSC 5579
.

REASONS FOR DECISION

[1]

The Law Society of Upper Canada brought disciplinary
    proceedings against the appellant in 2007 that finally resolved in his favor in
    October 2014. The appellant then brought this action claiming damages from the Law
    Society for negligent investigation, malicious prosecution, and mischief in
    public office.

[2]

The appeal concerns the motion judges decision
    to strike the claim for negligent investigation as disclosing no reasonable
    cause of action under rule 21.01(1)(b) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194
. The other claims will
    proceed in any event.

[3]

The motion judge based his decision on s. 9 of
    the
Law Society Act
, R.S.O. 1990, c. L.8,
which provides:

No action or other proceedings for damages shall be instituted
    against the Treasurer or 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 or in the exercise or in the intended exercise
    of any power under this Act, a regulation, a by-law or a rule of practice and
    procedure, or for any neglect or default in the performance or exercise in good
    faith of any such duty or power.

[4]

The appellant argues that the plain terms of s. 9
    expressly protect only Law Society employees and officials from negligence
    claims, but not the Law Society itself.
Two impediments relating to
stare
    decisis
confront the appellant.

[5]

One impediment is this courts decision in
Conway

v.
    The Law Society of Upper Canada
, 2016 ONCA 72, 395 D.L.R
    (4th) 100
. The court referred to s. 9 of the
Law Society Act
as
    the statutory immunity at para. 21, and added at para. 22
:

Mere negligence in the good faith performance of the LSUC's
    duties or functions is not enough to establish liability. However, an absence
    of good faith or "bad faith", involving malice or intent, is
    sufficient to ground a properly pleaded cause of action against the LSUC.

[6]

This court in
Conway
and the motion judge cited this courts decision in
Edwards
    v. Law Society of Upper Canada
(2000), 48 O.R. (3d) 329
    (C.A.), affd 2001 SCC 80, [2001] 3 S.C.R. 562, where Finlayson J.A. said at
    paras. 26, 30 and 40:

It is also important to note that immunity to civil suit is
    codified in s. 9 of the
Law Society Act
. While it applies only to
    actions against officials of the Society and not the Law Society itself, the
    Legislature is presumed to know the law and must be taken to have recognized
    that the society itself has been traditionally immunized from civil actions by
    the common law.

...

This jurisprudence clearly establishes a judicial immunity from
    negligence for the Law Society's discipline process, including the
    investigative function at the front end. The Law Society's disciplinary powers
    must respond to its statutory mandate and the requirements of due process, not
    to a private law duty of care.

...

[I]t seems to me that there are very sound policy reasons for
    not burdening this judicial or
quasi
-judicial process with a private
    law duty of care. The public is well-served by refusing to fetter the
    investigative powers of the Law Society with the fear of civil liability. The
    invocation by the plaintiffs of the "public interest" role of the Law
    Society seems to be misconceived as it actually works to undermine their
    argument.... [T]he Law Society cannot meet this obligation if it is required to
    act according to a private law duty of care to specific individuals such as the
    appellants. The private law duty of care cannot stand alongside the Law
    Society's statutory mandate and hence cannot be given effect to.

[7]


The second impediment is that the Supreme Court of
    Canada in
Edwards
noted its substantial agreement
    with Finlayson J.A, at para. 11, and went on to specifically note, at para. 16:
perhaps most indicative of the Legislature's intent, the Act provides
    statutory immunity in s. 9 of the
Act
. The court added, at para. 17,
    that s. 9 of the
Law Society Act
precludes any inference of an
    intention to provide compensation in circumstances that fall outside the
    lawyers' professional indemnity insurance and the lawyers' fund for client
    compensation.

[8]


The appellant submits the motion judge failed
    to consider his argument that
Edwards
was
    superseded by the decision of the Supreme Court of Canada in
Hill v.
    Hamilton-Wentworth Police Services Board
, 2007
SCC 41,
    [2007] 3 S.C.R. 129.
Hill
is based on
    developments in the law of negligence initiated by the Supreme Court in
Cooper
    v. Hobart
, 2001 SCC 79, [2001] 3 S.C.R 537. We observe that
Edwards
was a companion case to
Cooper
at the Supreme Court.

[9]

In
Hill
, the Supreme
    Court of Canada held that the
tort of negligent investigation exists in
    Canada. No statutory immunity was at issue in that case. There is no suggestion
    in
Hill
that the cause of action established in that case operates to
    extinguish statutory immunity. Nor is there any suggestion by the Supreme Court
    in
Hill
that
Edwards
was no longer good law.

[10]

It is certainly arguable that the general law of negligence has moved on
    considerably since the days of
Edwards
, in light of the further
    development of the law under the principles of
Cooper
. Perhaps
    Canadian appellate courts have authority under the rubric of
Canada
    (Attorney General) v. Bedford
,  2013 SCC 72, [2013] 3 S.C.R. 1101, and
Carter v. Canada (Attorney General)
, 2015
    SCC 5, [2015] 1 S.C.R. 331 to revisit binding Supreme Court of Canada
    decisions, particularly where that court has itself appeared to move on.

[11]

However, we are not persuaded that doing so would be appropriate in the
    circumstances of this case. It is not clear that the policy considerations
    addressed in
Hill
would be applied equally in circumstances where a
    statutory immunity has been found to exist. The appellants additional assertion
    that there have been changes to the investigative and adjudicative structure of
    the Law Society since
Edwards
was decided does not persuade us that a
    change in the circumstances or evidence that fundamentally shifts the
    parameters of the debate has been established:
Bedford
, at para. 42,
Carter
,
    at para. 44.

[12]

Further, both
Edwards
and
Conway
were decisions of
    panels of three judges of this court. Only a panel of five judges of this court
    could overcome them, but the appellant did not seek the appointment of an
    enlarged panel. Consequently we have no jurisdiction to revisit the outcome in
    either
Edwards
or
Conway
.

[13]

For these reasons, the appeal is dismissed with costs fixed in the
    amount of $5,000, inclusive of disbursements and taxes.

P. Lauwers J.A.

C.W. Hourigan J.A.

M.L. Benotto J.A.


