



COURT OF APPEAL FOR ONTARIO

CITATION: Robson v. The Law Society of Upper Canada, 2018
    ONCA 944

DATE: 20181123

DOCKET: C65245

Hoy A.C.J.O., Feldman and Paciocco 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)

Paul Robson, acting in person

Richard Watson, for the appellant (on one issue only)

Sean Dewart and Ian McKellar, for the respondents

Heard: November 13, 2018

On appeal from the
    order of Justice Patrick J. Monahan of the Superior Court of Justice, dated March
    6, 2018, with reasons reported at 2018 ONSC 1507, [2018] O.J. No. 1183 (Sup.
    Ct.).

REASONS FOR DECISION

[1]

The appellant appeals the order of the motion judge, striking his fresh
    as amended statement of claim, without leave to amend, and dismissing his
    action against the respondents. He also seeks leave to adduce fresh evidence on
    appeal.

[2]

The respondents are what is now called the Law Society of Ontario and
    four individuals (Zeynep Onen, Mark Pujolas, Lisa Freeman and Jan
    Parnega-Welch) who are or were employed by the Law Society and involved in
    investigations and proceedings concerning the appellant over the past 15 years.

[3]

On a prior motion by the respondents, Firestone J.: (1) struck the
    appellants negligence claim, without leave to amend; and (2) struck the
    appellants claims for malicious prosecution and misfeasance in public office,
    with leave to amend, on the basis that the appellant had failed to plead the
    full particulars required by r. 25.06(8) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194:
Robson v. Law Society of Upper Canada
, 2016
    ONSC 5579, [2016] O.J. No. 4749 (Sup. Ct.).
[1]

[4]

The appellant amended his claims for malicious prosecution and
    misfeasance in public office in response to Firestone J.s order. He also
    responded to the respondents demand for particulars. The respondents then
    brought a second motion to strike the appellants fresh as amended statement of
    claim, which was heard by the motion judge.

[5]

The motion judge held that the appellants fresh as amended claim did
    not respond to the directions set out in Firestone J.s prior order. In his
    view, the appellant had failed to provide sufficient particulars of the
    improper purpose or ulterior motive necessary to ground a claim for malicious
    prosecution or misfeasance in public office, as required by r. 25.06(8) of the
Rules
    of Civil Procedure
.

[6]

We agree with the motion judge that the appellants claim against Ms.
    Parnega-Welch should be struck, without leave to amend. The appellant does not
    plead any particulars of his claim against her.

[7]

However, we agree with the appellant that the motion judge erred in
    striking the remainder of the appellants fresh as amended claim. In
    particular, the motion judge does not appear to have considered the appellants
    response to the respondents demand for particulars, which contained sufficient
    further particulars in relation to three of the four individual respondents.
    Further, in the case of the four respondents other than Ms. Parnega-Welch, the
    motion judge erred in law by requiring an unnecessarily high level of
    particularization.

Background

[8]

Some context is required to understand the appellants action against
    the respondents.

[9]

In 2002, Lax J. presided over a trial on the issue of whether the
    appellant had acquired shares in certain companies while an undischarged
    bankrupt. If he had, then the shares vested in the bankruptcy trustee. In
    finding that the shares had vested in the bankruptcy trustee, Lax J. made a
    number of other factual findings, including that the appellant had attempted to
    conceal assets, and the truth, from the trustee:
Robson (Re)
, 2002
    CarswellOnt 5958 (Sup. Ct.), affd [2004] O.J. No. 4103 (C.A.).

[10]

As
    a result of Lax J.s findings, in 2002 the Law Society began to investigate the
    appellants conduct in connection with his bankruptcy proceedings.

[11]

Separately,
    the bankruptcy trustee brought a motion to set aside the appellants discharge
    from bankruptcy. Relying primarily on Lax J.s reasons, the trustee took the
    position that the appellant had obtained his discharge by fraud.

[12]

Campbell
    J. dismissed the trustees motion, holding that Lax J.s decision did not
    necessarily amount to a finding of fraud:
Robson Estate (Trustee of) v.
    Robson
, 2005 CarswellOnt 9917 (Sup. Ct.).

[13]

Campbell
    J.s order dismissing the trustees motion to set aside the appellants
    discharge was upheld by this court on appeal. Doherty J.A., writing for the
    court, held that Lax J. had made a finding of fraud, but that the finding was
    not binding against the appellant in subsequent proceedings because it was not
    necessary to the determination of the issue before Lax J.  namely, whether
    the appellant had acquired the shares while an undischarged bankrupt. Further,
    since the appellant did not have notice that the trustee was seeking a
    determination that he acted fraudulently, and had not fully defended the action
    before Lax J., it would be unfair to preclude the appellant from re-litigating
    the issue in subsequent proceedings:
Robson Estate (Trustee of) v. Robson
(2006), 22 C.B.R. (5th) 1 (C.A.).

[14]

In
    2013  some seven years after the decision of Doherty J.A. in the appellants
    bankruptcy proceeding  a Law Society Hearing Panel held that the appellant had
    engaged in conduct unbecoming:
Law Society of Upper Canada v. Robson
,
    2013 ONLSHP 49. Before the Hearing Panel, the Law Society relied exclusively on
    the findings made by Lax J. as to the appellants fraudulent and dishonest
    conduct. The appellant was subsequently disbarred:
Law Society of Upper
    Canada v. Robson
, 2014 ONLSTH 68.

[15]

In
    2015, a Law Society Appeal Panel overturned the Hearing Panels finding of
    professional misconduct:
Law Society of Upper Canada v. Robson
, 2015
    ONLSTA 4. It held that the Hearing Panel had erred in law in precluding the
    appellant from leading evidence and from re-litigating the factual findings
    made by Lax J., as Doherty J.A.s decision in the appellants bankruptcy
    proceedings was controlling on this issue. As a result, the Appeal Panel set
    aside the appellants disbarment.

[16]

The
    Law Society took no further action against the appellant in respect of his
    conduct during the bankruptcy proceedings.

Applicable Legal Principles

[17]

Before
    assessing the sufficiency of appellants pleadings, it is helpful to review the
    elements of the torts of malicious prosecution and misfeasance in public office,
    as well as the requirements of r. 25.06(8) of the
Rules of Civil Procedure
.

[18]

To
    succeed in an action for malicious prosecution, a plaintiff must prove that the
    prosecution was: (1) initiated by the defendant; (2) terminated in favour of
    the plaintiff; (3) undertaken without reasonable and probable cause; and (4)
    motivated by malice or a primary purpose other than that of carrying the law
    into effect:
Miazga v. Kvello Estate
, 2009 SCC 51, [2009] 3 S.C.R. 51,
    at para. 3. The tort targets the decision to initiate or continue with a
    prosecution:
Kvello
, at para. 6.

[19]

The
    essence of the tort of misfeasance in public office is the deliberate and
    dishonest wrongful abuse of the powers given to a public officer, coupled with
    the knowledge that the misconduct is likely to injure the plaintiff. Bad faith
    or dishonesty is an essential ingredient of the tort:
Conway v. Law Society
    of Upper Canada
, 2016 ONCA 72, 395 D.L.R. (4th) 100, at para. 20.

[20]

Rule
    25.06(8) of the
Rules of Civil Procedure
applies where these torts are
    pleaded. It provides:

Where fraud, misrepresentation, breach of trust,
    malice or intent is alleged, the pleading shall contain full particulars, but
    knowledge may be alleged as a fact without pleading the circumstances for which
    it is to be inferred.

Analysis

[21]

Incorporating
    the demand for particulars, the essence of the appellants fresh as amended
    claim appears to be as follows: the respondents
knew
that Lax J.s judgment was not correct and that many of the facts relied upon
    by her were inaccurate; the Law Society and Onen
deliberately
acted contrary to the decision of Doherty J.A. in proceeding solely in reliance
    on the findings of Lax. J.; the Law Society, Onen and Pujolas
deliberately
precluded unfavourable witnesses (namely,
    the appellant, Megan McLellan and an individual identified as Coutu in the
    appellants response to the demand for particulars) from being interviewed,
    despite pleas from the witnesses for the Law Society to do so; and that the Law
    Society, Freeman and Onen
deliberately
and
    formally precluded the intervention of McLellan, whom they knew had material
    unfavourable evidence to the Law Societys case, into the hearing process. He
    further pleads that the respondents engaged in this conduct to harass and harm
    him.

[22]

In
    the appellants 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.

[23]

The
    respondents challenge the appellants pleadings on the basis that the appellant
    did not plead, with sufficient particularity, facts from which the improper
    purpose element of malicious prosecution can be inferred. We understand the
    respondents to similarly argue that, with respect to the tort of misfeasance in
    public office, the facts from which the deliberate and dishonest wrongful
    abuse of the powers given to a public officer might be inferred have also not
    been pleaded with sufficient particularity.

[24]

In
    our view, the elements of both torts have been sufficiently pleaded. The
    improper purpose is to harass and harm the appellant. 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.

Disposition

[25]

Accordingly,
    the appeal is allowed, except as it relates to Ms. Parnega-Welch. As we have
    said, the appellant provided no particulars as to her role in the Law Societys
    investigation and prosecution of him. The references to Ms. Parnega-Welch shall
    be expunged from the fresh as amended statement of claim.

[26]

The
    appellants motion to admit fresh evidence is dismissed. The material sought to
    be placed before the court was neither relevant nor cogent. The proposed fresh
    evidence also included a palpably untenable claim of bias made against the
    motion judge that we repudiate in the strongest terms. The attack was not only
    indiscrete, but scandalous.

[27]

As
    a result of the foregoing, the costs order of the motion judge is vacated. The
    appellant is entitled to the costs of this appeal, fixed in the amount of
    $2000, inclusive of HST and disbursements. This is half of the amount that the
    parties agreed the appellant would be entitled to, if fully successful. The
    reduction reflects both that the appellant was not fully successful on the
    appeal, and that we dismiss his motion to admit fresh evidence. If the parties
    are unable to agree on the costs of the motion below, they may make brief
    written submissions within fourteen days.

Alexandra Hoy
    A.C.J.O.

K. Feldman J.A.

David M. Paciocco
    J.A.





[1]
This court dismissed the appellants appeal from the dismissal of his
    negligence claim:
Robson v. The Law Society of Upper Canada
, 2017 ONCA
    468, 26 Admin L.R. (6th) 133 (Ont. C.A.).


