Ontario Court Gives OK For Lawyer to Sue Law Society

The Ontario Court of Appeal is permitting lawyer Paul Robson’s action against the Law Society of Upper Canada (now the Law Society of Ontario) (“LSO”) and three of its employees for malicious prosecution and misfeasance in public office to proceed.  The appeal court’s decision overturned the decision of Justice Patrick Monahan of the Superior Court of Justice on a motion to strike by the LSO.  Mr. Robson argued before the court that he is a thorn in the side of the LSO and someone at the LSO wishes to silence him.

At the motion brought by the LSO, Justice Monahan had struck Mr. Robson’s fresh as amended statement of claim, without leave to amend, and dismissed his action against the LSO and four of its employees.  This was the second time that a Superior Court judge had struck Mr. Robson’s pleading without leave to amend.   On a prior motion, Justice Firestone had struck the plaintiff’s claim for negligence and his claims for malicious prosecution and misfeasance in public office on the basis that Mr. Robson had failed to plead the full particulars of his claims as required by the Rules of Civil Procedure (“Rules”).  As a result of that motion, Mr. Robson amended his claims for malicious prosecution and misfeasance in public office and responded to the law society’s demand for particulars.  The defendants then brought a second motion to strike which was heard by Justice Monahan.  Justice Monahan held that Mr. Robson’s pleading did not respond to the directions set out in Justice Firestone’s prior order and that he had failed to provide sufficient particulars of the LSO’s improper purpose or ulterior motive necessary to ground his claims. 

On appeal, a three judge panel of the Court of Appeal agreed with Mr. Robson that Justice Monahan had erred in striking the bulk of his claim and allowed the appeal with respect to the LSO and three of the four individual defendants. 

The background to this case began in 2002 when Justice Lax presided over a trial on the issue of whether Mr. Robson had acquired shares in certain companies while he was an undischarged bankrupt.  During the course of that trial, Justice Lax made a number of factual findings against Mr. Robson including a finding that he had attempted to conceal assets and the truth relating to such assets from the trustee in bankruptcy. 

As a result of the trial judge’s findings, the LSO began to investigate Mr. Robson’s conduct in 2002 in connection with his bankruptcy proceedings.  Separately, the bankruptcy trustee brought a motion to set aside Mr. Robson’s discharge from bankruptcy on the basis that he had obtained his discharge by fraud.  The trustee relied primarily on Justice Lax’s reasons.   Justice Campbell dismissed the trustee’s motion which was appealed to the Court of Appeal.   Justice Doherty, J.A., for the Court of Appeal, found that while Justice Lax had made a finding of fraud, that finding was not binding against Mr. Robson in subsequent proceedings because it was not “necessary” to the determination of the issue before Justice Lax., i.e. namely whether Mr. Robson had acquired the shares while an undischarged bankrupt.  Further, Justice Doherty held that since Mr. Robson did not have notice that the trustee was seeking a determination that he acted fraudulently and had not fully defended the action before Justice Lax, it would be unfair to preclude him from re-litigating the issue in subsequent proceedings. 

Seven years later, in 2013, a LSO hearing panel held that Mr. Robson had engaged in conduct unbecoming a licensee.  The LSO relied exclusively on the findings made by Justice Lax as to Mr. Robson’s fraudulent and dishonest conduct.  Mr. Robson was disbarred. 

In 2015 a LSO appeal panel overturned the hearing panel’s finding of professional misconduct.  It held that the hearing panel had erred in law in precluding Mr. Robson from leading evidence and from re-litigating the factual findings made by Justice Lax because Justice Doherty’s decision in Mr. Robson’s bankruptcy proceedings was controlling.  As a result the appeal panel set aside the disbarment. 

Mr. Robson then brought the action for negligence, malicious prosecution and misfeasance in public office against the LSO and four of its employees.  The Court of Appeal set out the applicable legal principles for the torts of malicious prosecution and misfeasance.  It then referred to rule 25.06(8) of the Rules which applies where these torts are pleaded.  The rule 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.”   

Essentially, Mr. Robson’s fresh as amended pleading alleged that the respondents knew that Justice Lax’s judgment was not correct and that many of the facts that she relied upon were inaccurate but that they deliberately acted contrary to Justice Doherty’s decision and deliberately precluded unfavourable witnesses in order to harass and harm him.  In his oral submissions to the Court of Appeal, but not in his pleadings, Mr. Robson says that he is a thorn in the side of the Law Society and someone at the Law Society wishes to silence him.  The Court of Appeal concluded that the elements of both torts had been sufficiently pleaded.  The facts pleaded, if true, supported the inference of an improper LSO purpose.  If true, they also pointed to a deliberate and dishonest wrongful abuse of the powers given to a public officer.   

The Court of Appeal allowed Mr. Robson’s appeal except as it related to one LSO employee,  because Mr. Robson had provided no particulars as to her role in the LSO’s investigation and prosecution.

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

Regards,

Blair