Law Times

Page 4 February 8, 2016 • Law Times www.lawtimesnews.com NEWS Court rules lawyer can amend claim against LSUC BY NEIL ETIENNE Law Times A 16-year battle waged by a Mis- sissauga, Ont. lawyer against the Law Society of Upper Canada will have yet another chapter. The Court of Appeal of Ontario has ruled that lawyer-turned-paralegal- turned-lawyer-again David Robert Conway can serve a fresh as amended statement of claim against the LSUC based on the tort of misfeasance in pub- lic office. The case arises out of allegations of bad-faith conduct by the LSUC in dealing with what the Appeal Court described as a "myriad of different civil, disciplinary, and bankruptcy proceed- ings" against Conway dating back to 2000. Conway says he is working on his revised statement of claim based on the tort of misfeasance and found the ruling helpful in refocusing his allegations. "This particular area of law has been expanded on; now you can just name the organizations you're com- plaining about just as long as you name individuals in- side your pleadings, not as direct defendants," he says. "The list of people I'm dealing with [at the LSUC] is long, all kinds of names, and if I named all these people as defendants, their defence would be 'I'm just a grunt, I'm just carrying out my orders.'" He says a big concern he has with the regulator is an apparent lack of communication between departments. Even if the LSUC was not malicious in its dealing with him, Conway says ap- parent f laws in the LSUC communica- tion system should not cause the indi- viduals it regulates undue harm. "Fifteen years of litigation and I don't have a result; I'm just the small guy and the balance of power is too far in favour of the regulator," Conway says. "Why should we have to bear the fi- nancial responsibility for the law society's lack of com- munication between their own departments? For the tort of misfeasance, carelessness and recklessness will also suffice [rather than malice]," he adds. In Conway v. The Law Society of Upper Canada, the lawyer successfully appealed in part a September 2014 ruling by the Superior Court of Justice that dis- missed his action against the LSUC. Justice Frederick Myers of the Superior Court had ruled there was no proper plea of tort nor of tort of mis- feasance in public office and dismissed his claim. Conway's allegations date back to a June 2000 admin- istrative suspension based on failure to pay transaction levies, and he alleged to the court he has been "the subject of relentless and inequitable targeting, abuse of process, and denial of due process by the LSUC." His allegations include that the LSUC: acted improp- erly during administrative proceedings against him for failure to remit transaction levies and forms; improperly brought civil proceedings to recover those levies; unfairly brought disciplinary proceedings against him leading to disbarment for practising as a paralegal while his licence to practise as a lawyer was suspended; refused to consider his application to practise as a paralegal on a "grandfa- thered" basis; were improper during trustee proceedings involving his client accounts and during bankruptcy proceedings when the LSUC opposed his filing of a pro- posal and then unsuccessfully opposed his discharge. The Court of Appeal ruling, written by Justice K.M. Weiler with Justices Katherine van Rensburg and L.B. Roberts agreeing, stated, "We agree with the motion judge's reasoning and conclusions that the various indi- vidual acts by the LSUC of which the appellant complains are incapable of giving rise individually to any viable cause of action in the manner pleaded by the appellant." However, the court also ruled: "While the motion judge correctly concluded that the appel- lant's statement of claim was untenable in that it did not disclose in proper form the constituent elements of the tort of misfeasance in public of- fice or any other properly pleaded tort, he erred in determining that the pattern of acts and omis- sions alleged by the appellant in his statement of claim, even if properly pleaded, could not give rise to a cause of action, and in failing to grant leave to amend the pleading if it was deficient in pleading the cause of action. "Mere negligence in the good faith perfor- mance of the LSUC's duties or functions is not enough to establish liability," the ruling added. "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." Contacted for comment prior to press time, LSUC communications adviser Susan Tonkin said, "The Court of Appeal's decision speaks for itself." The appeal court also ruled that while Con- way cannot claim damages arising out of the LSUC's conduct that he released [a 2008 coun- terclaim for his administrative suspension that was settled], he may refer to this conduct as part of the narrative of the alleged pattern of bad faith he alleges against the LSUC. "My argument is it didn't stop [the LSUC act- ing in bad faith and carelessly]; it started in the year 2000 and that was just the tip of the ice- berg," Conway says. Commenting on the matter, civil litigator Michelle Booth of Aff leck Greene McMurtry LLP says the tort of misfeasance in public office is an area of law that did not "ex- plode" like many professionals thought it might in the early 2000s, but it essentially boils down to individuals deliberately engaging in conduct they know to be inconsistent with the obliga- tions of their office. She says that although predictions of tort of misfeasance inundating the courts don't seem to have panned out, she does believe there is growing interest in these cases, especially as the age of so- cial media and information transfer proliferates. "What we are seeing is more of a symptom of a larger problem and that is that we see societal shifts in that we don't necessarily trust our regu- lators like we used to," Booth says. "It goes back to the notion of social media and more access to notions of access to justice and where access to justice is being denied. "It certainly translates into a growing inter- est in holding our regulators to account and that we don't necessarily have that good, old Cana- dian faith that our government is doing the right thing for us," she adds. LT 'We don't necessarily have that good, old Canadian faith that our government is doing the right thing,' says Michelle Booth. ORDER YOUR COPY TODAY! Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation THE MOST COMPLETE DIRECTORY OF ONTARIO LAWYERS, LAW FIRMS, JUDGES AND COURTS. With more than 1,400 pages of essential legal references, Ontario Lawyer's Phone Book is your best connection to legal services in Ontario. Subscribers can depend on the credibility, accuracy and currency of this directory year after year. 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