



COURT
    OF APPEAL FOR ONTARIO

CITATION:
Khan v.
    Law Society of Ontario, 2020 ONCA 320

DATE: 20200526

DOCKET: C67445

Feldman, Lauwers and Nordheimer JJ.A.

BETWEEN

Omar Shabbir Khan

Plaintiff (Appellant)

and

Law Society of Ontario,
Law Society Tribunal, David Wright, Raj
    Anand, Margaret Leighton, Barbara Laskin
, Deborah McPhadden, Glenn Stuart,
    Leslie Maunder, Nina Iwanowich,
Doctor Michael Colleton, Michael Colleton
    Medicine Professional Corporation, Legal Aid Ontario, Victor Matanovic,
    Hamilton Police Service and Kevin Dhinsa

Defendants (
Respondents
)

Omar Shabbir
    Khan in person

Susan M. Sack for the respondents, Law
    Society Tribunal, David Wright, Raj Anand, Margaret Leighton and Barbara Laskin

Gillian Kerr and Ljiljana Stanic for
    the respondents, Doctor Michael Colleton and Michael Colleton Medicine
    Professional Corporation

Gideon Forrest and Mitch Stephenson for
    the respondents, Legal Aid Ontario and Victor Matanovic

Colleen E. Robertshaw for the respondents,
    Hamilton Police Service and Kevin Dhinsa

Heard: in writing (on consent)

On appeal from the order of Justice Clayton
    Conlan of the Superior Court of Justice, dated August 23, 2019, with reasons
    reported at 2019 ONSC 4974.

REASONS FOR DECISION

[1]

On April 15, 2019, the appellant commenced an
    action in Milton against 16 defendants (the Milton action). On August 23,
    2019, the motion judge dismissed the Milton action as against 11 of the 16
    defendants under r. 2.1, on the basis that it was frivolous, vexatious or an
    abuse of process. The other five defendants had not sought a dismissal. For the
    following reasons, we would allow the appeal in part.

[2]

The appellant was the subject of a complaint to
    the Law Society of Ontario (LSO) regarding alleged billing irregularities and
    alleged forged documents. In September 2018, upon making a finding that the
    appellant had committed professional misconduct, the LSO revoked his licence to
    practice.

[3]

The 16 defendants in the Milton action include
    the LSO, the Law Society Tribunal, various individuals who were involved in the
    proceedings that resulted in the revocation of the appellants licence, Dr.
    Colleton, a psychiatrist who provided evidence to the Tribunal regarding the
    appellants mental health, Legal Aid Ontario (LAO) which was the complainant
    in the appellants disciplinary case, and the Hamilton Police Service, who the
    appellant says undertook an investigation of him at the behest of the LAO.

[4]

The statement of claim in the Milton action is a
    lengthy document that advances a myriad of claims and seeks a wide variety of
    damages, all arising from the events surrounding the revocation of the
    appellants licence to practice.

[5]

On that latter point, certain other facts are
    important. One is that the appellant has appealed the decision of the Law
    Society Tribunal by which the revocation of his licence was upheld. Another is
    that the appellant has an outstanding application for judicial review
    respecting a ruling made in the course of the Tribunals hearing. Yet another
    is that the appellant had earlier commenced another action in Hamilton (the
    Hamilton action) against LAO arising out of this same matter.

Analysis

[6]

We begin our analysis by focussing on the proper
    application of r. 2.1. Its use is restricted to the clearest of cases where
    the abusive nature of the proceeding is apparent on the face of the pleading:
Scaduto
    v. The Law Society of Upper Canada
, 2015 ONCA 733 at para. 8.

[7]

In particular, r. 2.1 is not intended to replace
    other Rules in the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194 by
    which actions can be struck out, or other procedural irregularities dealt with,
    summarily:
Simpson v. The Chartered Professional Accountants of Ontario
,
    2016 ONCA 806 at para. 43. These include motions to dismiss an action for
    failure to disclose a cause of action or because the action is an abuse of
    process. For example, Rule 21 provides a procedure for dealing with actions
    that are defective in a number of different respects.

[8]

Further, r. 2.1 is intended to be a streamlined
    process for dealing with cases where the frivolous or abusive nature of the
    proceeding is clear on the face of the pleading. We suggest that if, after
    requesting submissions from the plaintiff as to why the action should not be
    dismissed under r. 2.1, the court feels it necessary to seek submissions from
    the defendants (who are seeking the dismissal), the fact that these additional
    submissions are needed ought to be a good indication that the situation is not
    one of those clearest of cases where the Rule should be invoked.

[9]

The appellant submits that the motion judge
    erred in referring to pleadings from other proceedings, since evidence is not
    permitted on a r. 2.1 motion. We do not agree. It may be necessary to review reasons
    and pleadings from other proceedings in order to make a determination whether
    the instant case is abusive. The case here is a good example of that.

[10]

There was argument advanced in this case as to
    the appropriate standard of review. We accept that a decision made under r. 2.1
    is a discretionary decision and, as such, is entitled to deference. That said,
    discretionary decisions may be set aside where the court misdirects itself or
    comes to a decision that is so clearly wrong that it amounts to an injustice:
Penner
    v. Niagara (Regional Police Services Board)
, [2013] 2 S.C.R. 125 at para.
    27.

[11]

We do not see any misdirection in the motion
    judges conclusion that the action against the Law Society Tribunal, and the
    individual defendants associated with it, is an abuse of process in light of
    the outstanding appeal that the appellant has from the Tribunals decision. To
    advance a claim arising out of a decision that is, itself, not final, because
    of an outstanding appeal, is on its face abusive.

[12]

Similarly, we do not see any misdirection in
    the motion judges conclusion that the Milton action against LAO is abusive in
    light of the outstanding Hamilton action that the appellant has against LAO.
    The mere fact that the appellant has also sued an individual, not named in the
    Hamilton action, in the Milton action does not change that conclusion. A
    multiplicity of proceedings is often a hallmark of abusive litigation.

[13]

However, we do find that the motion judge
    misdirected himself with respect to the claim against Dr. Colleton and his
    corporation. This is not an obviously abusive claim. The fact that Dr. Colleton
    relies on the legal principle of absolute privilege in defence of the claim is
    a good indicator that the issue is not a simple one where it would be
    appropriate to invoke r. 2.1. We note on this point, as well, that the motion
    judge chose to limit the appellants opportunity to reply to the submissions of
    the various respondents. This meant that the appellant did not have a full opportunity
    to make submissions as to whether Dr. Colletons claim of absolute privilege
    was correct or not in the particular circumstances of his case. This fact
    highlights the inappropriate application of r. 2.1. The issue ought to have
    been left to be determined on a proper motion under Rule 21 with all the
    procedural safeguards such a motion includes.

[14]

We reach the same conclusion regarding the claim
    against the Hamilton Police Service and the associated individual defendant in
    the Milton action. The motion judge purported to determine various legal issues
    involving the claim against the police, including the parameters for claims of
    negligent investigation and for defamation respecting press statements issued
    by the police. These are not matters that should be determined on a r. 2.1
    motion. Further, the fact that these claims in the Milton action may overlap
    claims in the Hamilton action does not preclude a separate claim being made
    against the police when they are not parties to the Hamilton action.

[15]

We reiterate that judges should be cautious
    about allowing parties to have recourse to r. 2.1 except where it is plain and
    obvious on the face of the pleading that the action is frivolous, vexatious or
    an abuse of process. There are many other remedies provided for in the
Rules
    of Civil Procedure
by which parties can deal with cases that are not clear
    on the face of the pleading.

Conclusion

[16]

The appeals are allowed with respect to the
    claims made against Dr. Michael Colleton, Michael Colleton Medicine
    Professional Corporation, Hamilton Police Service, and Kevin Dhinsa, without
    prejudice to any subsequent motion that those parties may choose to bring under
    an appropriate Rule to summarily deal with the claims advanced. The appeals are
    otherwise dismissed. We make no order as to costs.

K. Feldman J.A.

P. Lauwers J.A.

I.V.B. Nordheimer J.A.


