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Robson v. The Law Society of Upper Canada, 2017 ONCA 468

On appeal from the judgment of Justice Stephen E. Firestone of the Superior Court of Justice, dated September 14, 2016, with reasons reported at 2016 ONSC 5579.

REASONS FOR DECISION

[1]            The Law Society of Upper Canada brought disciplinary proceedings against the appellant in 2007 that finally resolved in his favor in October 2014. The appellant then brought this action claiming damages from the Law Society for negligent investigation, malicious prosecution, and mischief in public office.

[2]            The appeal concerns the motion judge’s decision to strike the claim for negligent investigation as disclosing no reasonable cause of action under rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The other claims will proceed in any event.

[3]            The motion judge based his decision on s. 9 of the Law Society Act, R.S.O. 1990, c. L.8, which provides:

No action or other proceedings for damages shall be instituted against the Treasurer or any bencher, official of the Society or person appointed in Convocation for any act done in good faith in the performance or intended performance of any duty or in the exercise or in the intended exercise of any power under this Act, a regulation, a by-law or a rule of practice and procedure, or for any neglect or default in the performance or exercise in good faith of any such duty or power.

[4]            The appellant argues that the plain terms of s. 9 expressly protect only Law Society employees and officials from negligence claims, but not the Law Society itself. Two impediments relating to stare decisis confront the appellant.

[5]            One impediment is this court’s decision in Conway v. The Law Society of Upper Canada, 2016 ONCA 72, 395 D.L.R (4th) 100. The court referred to s. 9 of the Law Society Act as “the statutory immunity” at para. 21, and added at para. 22:

Mere negligence in the good faith performance of the LSUC’s duties or functions is not enough to establish liability. 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.

[6]            This court in Conway and the motion judge cited this court’s decision in Edwards v. Law Society of Upper Canada (2000), 48 O.R. (3d) 329 (C.A.), aff’d 2001 SCC 80, [2001] 3 S.C.R. 562, where Finlayson J.A. said at paras. 26, 30 and 40:

It is also important to note that immunity to civil suit is codified in s. 9 of the Law Society Act. While it applies only to actions against officials of the Society and not the Law Society itself, the Legislature is presumed to know the law and must be taken to have recognized that the society itself has been traditionally immunized from civil actions by the common law.

http://www.ontariocourts.ca/decisions/2017/2017ONCA0468.htm

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