Conway v. Law Society of Upper Canada et al., (2016) 344 O.A.C. 291 (CA)

• Judge: Weiler, van Rensburg and Roberts, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 08, 2015
• Jurisdiction: Ontario
• Citations: (2016), 344 O.A.C. 291 (CA);2016 ONCA 72

Conway v. LSUC (2016), 344 O.A.C. 291 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. JA.028

David Robert Conway (appellant) v. The Law Society of Upper Canada and Lorne Levine ( respondent )

(C59451; 2016 ONCA 72)

Indexed As: Conway v. Law Society of Upper Canada et al.

Ontario Court of Appeal

Weiler, van Rensburg and Roberts, JJ.A.

January 26, 2016.

Summary:

The appellant appealed from the dismissal of his action as against the respondent, the Law Society of Upper Canada (LSUC), following a motion to strike the appellant's statement of claim, as disclosing no reasonable cause of action and as being frivolous, vexatious and an abuse of process.

The Ontario Court of Appeal allowed the appellant's appeal in part, granting him leave to serve and file within 60 days a fresh as amended statement of claim to plead with proper particulars a tenable cause of action against the LSUC based on the tort of misfeasance in public office arising out of its alleged bad faith conduct in relation to the appellant.

Practice - Topic 2213

Pleadings - Striking out pleadings - With leave to amend - The appellant appealed from the dismissal of his action as against the Law Society of Upper Canada (LSUC), following a motion to strike his statement of claim, as disclosing no reasonable cause of action and as being frivolous, vexatious and an abuse of process - The Ontario Court of Appeal allowed the appellant's appeal in part, granting him leave to serve and file a fresh as amended statement of claim to plead with proper particulars a tenable cause of action against the LSUC based on the tort of misfeasance in public office arising out of its alleged bad faith conduct regarding the appellant - While, as the motion judge stated, "[a]llegations of 'singling out' may be no more than a regular carrying out of its duties against an individual", they, and some of the other allegations in the statement of claim, might also support a cause of action against the LSUC on the ground that it abused its statutory authority and acted in bad faith in its dealings with the appellant (i.e., might have acted with malice or intent to harm) - Taking all of the appellant's factual allegations as true and reading the essence of the pleading as a claim for misfeasance in public office, it was not plain and obvious that a proper pleading of a reasonable cause of action founded on the alleged bad faith conduct against the LSUC would fail - Therefore, the motion judge erred in refusing leave to amend to correct the deficiencies in the pleading - While the appellant could not claim damages arising out of the LSUC's conduct that he had released, he might refer to this conduct, if appropriate, as part of the narrative of the alleged pattern of bad faith conduct by the LSUC that the appellant alleged caused him damages - The appellant's fresh as amended claim would be subject to any applicable defences, including any limitation periods, a request for particulars, and any further motions to strike or dismiss, if warranted.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Practice - Topic 2213 ].

Cases Noticed:

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 74 D.L.R.(4th) 321, refd to. [para. 7].

South Holly Holdings Ltd. v. Toronto-Dominion Bank et al., [2007] O.A.C. Uned. 247; 2007 ONCA 456, refd to. [para. 16].

Mortazavi et al. v. University of Toronto et al., [2013] O.A.C. Uned. 538; 2013 ONCA 655, refd to. [para. 16].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 20].

Gratton-Masuy Environmental Technologies Inc. et al. v. Building Materials Evaluation Commission (Ont.) et al. (2010), 269 O.A.C. 279; 2010 ONCA 321, refd to. [para. 20].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 22].

McCullock-Finney v. Barreau du Québec, [2004] 2 S.C.R. 17; 321 N.R. 361; 2004 SCC 36, refd to. [para. 22].

Dechant v. Law Society of Alberta (2006), 406 A.R. 4; 2006 ABQB 908, refd to. [para. 28].

Nash v. Ontario (1995), 27 O.R.(3d) 1 (C.A.), refd to. [para. 29].

Counsel:

David Robert Conway, in person;

Brendan van Niejenhuis, for the respondent.

This appeal was heard on September 8, 2015, by Weiler, van Rensburg and Roberts, JJ.A., of the Ontario Court of Appeal, who delivered the following decision on January 26, 2016.