Law Society of Manitoba v. Date:, 2014 MBCA 28

Citation: Law Society of Manitoba v. Date: 20140312 Mackinnon, 2014 MBCA 28 Docket: AI 13-30-08005 I N THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN : ) THE LAW SOCIETY OF MANITOBA ) ) (Plaintiff) Respondent ) ) - and - ) G. M. Wood ) for the Appellant DONALD JOEL MACKINNON, also ) known as DONALD JOEL KINNON, also ) known as DONALD JOEL YAWORSKI ) ) D. M. Skwark and (Defendant) Appellant ) I. C.

McDonald ) for the Respondent - and - ) ) BETWEEN : ) ) Appeal heard: DONALD JOEL MACKINNON, also ) November 6, 2013 known as DONALD JOEL KINNON, also ) known as DONALD JOEL YAWORSKI ) ) (Plaintiff by Counterclaim) Appellant ) Judgment delivered: ) March 12, 2014 - and - ) ) THE LAW SOCIETY OF MANITOBA and ) THE CANADIAN LAWYERS ) INSURANCE ASSOCIATION ) ) (Defendants by Counterclaim) Respondents ) ) BEARD J.A. I. THE ISSUE [ 1 ] This is an appeal from a decision of a judge of the Court of Queen’s Bench (the motion judge) granting

summary judgment to the respondent, The Law Society of Manitoba (the Law Society) on its claim and dismissing the counterclaim of the appellant, Donald Joel Mackinnon (Mr. Mackinnon). The motion judge found that, based on the findings of the Discipline Committee of the Law Society, the Law Society had established a prima facie case for judgment. He summarized his findings as follows (at para. 65):

There is no genuine issue for trial either on the Law Society’s claim or on [Mr.] Mackinnon’s counterclaim. On the totality of the evidence put forth, [Mr.] Mackinnon has failed to demonstrate there is a genuine issue for trial. Furthermore, he is barred by both issue estoppel and abuse of process, if not also collateral attack.

The Law Society’s investigation, the proceeding before the Discipline Committee, and its subsequent affirmation by the Court of Appeal have already determined that [Mr.] Mackinnon misappropriated the funds for which the Law Society, through its statutory authority, now claims to be reimbursed. [ 2 ] While the appellant has raised several grounds of appeal, I am of the view that this appeal can be resolved on the following ground: whether the motion judge erred in finding that, by the doctrine of abuse of process, Mr.

Mackinnon is barred from challenging the reimbursement to Westfair Properties Ltd. and/or Westfair Foods Inc. (Westfair) by the Law Society’s reimbursement claims fund. II. THE FACTS [ 3 ] Mr. Mackinnon was a lawyer practising law in Manitoba, having been called to the bar in 1987. He had done legal work for Westfair on several occasions over the years. [ 4 ] In or about September 1998, Mr. Mackinnon was retained to act on behalf of Westfair to resolve some builders’ lien issues that had arisen when the general contractor doing work for Westfair was placed into receivership.

The initial instructions came from Westfair’s in-house counsel, Gary Menzies. Funds were sent to Mr. Mackinnon on November 10, 1998, with written instructions that he was to pay them into court to be distributed to the general contractor’s creditors. [ 5 ] Mr. Mackinnon never did pay the funds into court. Some of the money was distributed directly to two of the creditors, and the rest, in the amount of approximately $68,496.49, was appropriated by Mr.

Mackinnon for his legal fees and disbursements. [ 6 ] Nine of the creditors eventually sued Westfair, leading to litigation that ended with a judgment, significant interest and costs against Westfair and strong criticism of the handling of the matter by both Westfair and Mr. Mackinnon. (See Westfair Properties Ltd. v. Cobbe’s Plumbing & Heating Ltd. et al. , 2006 MBQB 37 , 200 Man.R. (2d) 148.) Greenberg J., the trial judge in that matter, ordered that Westfair pay into court the unpaid holdback under The Builders’ Liens Act , C.C.S.M., c.

B91, and the unbilled portion of the construction contract in the sum of $71,797.67, together with interest on that amount and costs of $5,000 plus disbursements. [ 7 ] When Mr. Mackinnon failed to pay the judgment from the money that Westfair thought that he still had in trust, it terminated his retainer in April 2006 and retained other counsel to deal with him. Mr. Mackinnon eventually disclosed that he no longer had the funds, as he had applied them to his legal fees.

To stop the accrual of interest on the unpaid judgment, Westfair was forced to pay into court a sum sufficient to satisfy the judgment. [ 8 ] Westfair then made a complaint to the Law Society regarding Mr. Mackinnon’s conduct in this matter and his use of the trust funds to pay his legal accounts. The Law Society determined that there were two parts to the claim, one part being a negligence claim and the other being a defalcation claim. The negligence portion of the claim related to the interest that accrued under the Westfair Properties judgment. This portion of the claim, being $38,695.88, was covered by Mr.

Mackinnon’s professional liability insurance, so that amount less Mr. Mackinnon’s deductible of $5,000 was paid by the insurer. [ 9 ] The second part of the claim related to the trust funds that Mr. Mackinnon took to pay his own legal fees and disbursements. The Law Society took the position that this was an unauthorized and undisclosed use of the funds, leading to Mr. Mackinnon being charged with six counts of professional misconduct (although not all counts relate directly to the use of these funds). There was a lengthy contested hearing before the Discipline Committee of the Law Society, lasting seven days.

The panel hearing the matter issued unanimous reasons dated December 4, 2009, finding that the Law Society had proved all six counts. Mr. Mackinnon was later disbarred. [ 10 ] Mr. Mackinnon appealed the decision to this court, but the findings and penalty were upheld and the appeal was dismissed (see Mackinnon v. Law Society of Manitoba , 2011 MBCA 36 ). [ 11 ] Following that decision, the Law Society determined that Westfair was entitled to be reimbursed from its reimbursement fund for the money that Mr. Mackinnon had appropriated for his legal fees and disbursements.

Westfair took the position that it was entitled to the sum of $71,979.77. In the end, the Law Society offered to pay the sum of $68,496.49, which was accepted by Westfair, all of which was resolved by June 22, 2011. One factor cited by the Law Society for the reduction was that no specific allowance had been made for the payment of Mr. Mackinnon’s legal services. [ 12 ] Westfair suffered not only the loss of the funds that Mr.

Mackinnon misappropriated (the reimbursement claim) and the interest that was ordered under the Westfair Properties judgment (the negligence claim), but many other costs, including the court costs that it paid under the Westfair Properties judgment, the costs that it incurred in retaining new counsel in April 2006 to find out what had happened to the money sent to Mr. Mackinnon and to pursue its claim with the Law Society, and the cost of participating in the Law Society disciplinary proceedings.

Westfair has not been compensated for any of these other costs. [ 13 ] On August 11, 2011, the Law Society commenced proceedings against Mr. Mackinnon to recover the money that it paid to Westfair, which claim was based on the Law Society’s right of subrogation under s. 47(3) of The Legal Profession Act , C.C.S.M., c. L107. [ 14 ] Mr. Mackinnon filed a defence and counterclaim, the latter naming both the Law Society and the Canadian Lawyers

Insurance Association (the CLIA) as defendants. In his defence, Mr. Mackinnon took the position that he had understood and agreed that the Westfair funds could be used both to resolve the lien claims and to pay his legal fees and disbursements. He said that the sums that he took were for his legal services and disbursements, and that he sent invoices and reporting letters before transferring the funds. He denied that the transfers constituted misappropriation or wrongful conversion. Mr. Mackinnon also denied that the Law Society was entitled to any reimbursement.

According to him, Westfair did not suffer any pecuniary loss because it received his legal services but did not pay for them. [ 15 ] In reply, the Law Society took the position that all of the factual issues raised by Mr. Mackinnon in his amended statement of defence had been determined by the Discipline Committee of the Law Society and upheld by the Court of Appeal. Its position was that it was not open to Mr.

Mackinnon to relitigate the findings of the Discipline Committee, and, in that regard, it pled and relied on the doctrines of issue estoppel, abuse of process and collateral attack. [ 16 ] In the counterclaim, Mr. Mackinnon claimed an order requiring the defendants by counterclaim to provide him with legal representation and to compensate him in damages including compensation for the costs he had incurred for legal representation.

He took the position that he was covered by errors and omissions insurance provided to him, as a lawyer, by the defendants by counterclaim, which included a requirement that they defend all claims of negligence against him.

He stated that they breached their fiduciary duty owed to him pursuant to the insurance contract by failing to investigate and adjust Westfair’s claims against him, by confusing negligence and misappropriation and by failing to properly assess the benefits from his work. [ 17 ] As regards the counterclaim, the Law Society and the CLIA pled that, through the CLIA, the Law Society provided insurance to cover negligence but not for misappropriation of trust funds. In this case, the Law Society resolved the negligence claim on behalf of Mr.

Mackinnon, and that portion of the Westfair claim based on negligence was covered by the CLIA, except for Mr. Mackinnon’s deductible. The portion of the funds determined to have been misappropriated was not covered by insurance because there was no coverage for theft or misappropriation. This portion of the claim was paid by the Law Society from its reimbursement fund, for which it claimed to be entitled to be reimbursed by Mr. Mackinnon pursuant to its statutory right of subrogation.

The Law Society stated that it carried out its investigative and adjusting functions fully and that, if it owed any fiduciary duty to Mr. Mackinnon, it had carried out that duty. [ 18 ] On May 16, 2013, the motion judge granted

summary judgment to the Law Society, thereby requiring Mr. Mackinnon to pay the Law Society the sum of $68,496.49 plus interest. He also dismissed Mr. Mackinnon’s counterclaim and ordered that Mr. Mackinnon pay costs to both the Law Society and the CLIA. III. THE MOTION JUDGE’S DECISION – ABUSE OF PROCESS [ 19 ] The motion judge relied on the decision of the Supreme Court of Canada in Toronto (City) v. C.U.P.E., Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77, as setting out the legal parameters for the common law doctrine of abuse of process.

The parties have, likewise, relied on this as the leading decision regarding this doctrine. [ 20 ] The motion judge found that Mr. Mackinnon was barred from defending his claim on the basis that to permit him to do so would be an abuse of process. He found (at paras. 64-65): The Law Society has already had to expend considerable resources in its investigation and prosecution of [Mr.] Mackinnon and subsequently during the appeal process. If [Mr.] Mackinnon were to succeed it would undermine the findings of both the Discipline Committee and the Court of Appeal and the integrity of the adjudicative process.

Allowing him to succeed would result in a waste of scarce judicial resources. The proceedings before the Discipline Committee had far more serious consequences – [Mr.] Mackinnon’s professional reputation and the ability to practice law – than the present matter. Therefore, he would have been expected to put forth his strongest case in the disciplinary matter and the corresponding appeal. .... ... [H]e is barred by both issue estoppel and abuse of process, if not also collateral attack.

The Law Society’s investigation, the proceeding before the Discipline Committee, and its subsequent affirmation by the Court of Appeal have already determined that [Mr.] Mackinnon misappropriated the funds for which the Law Society, through its statutory authority, now claims to be reimbursed. IV. THE POSITIONS OF THE PARTIES The Appellant’s Position [ 21 ] Mr. Mackinnon argues that he incurred costs and delivered legal services to Westfair, the content and accuracy of which were not challenged through cross-examination, nor were they disputed at the disciplinary hearing.

He states that there can be no misappropriation of monies which were bona fide owed to him and transferred under colour of right. He says that the motion judge did not consider that the legal services performed by him justified the statements of account or the unjust enrichment of Westfair resulting from the reimbursement. [ 22 ] Mr. Mackinnon argues that the doctrine of abuse of process does not apply because the focus of his defence was on a separate issue than was before the Law Society – that being his entitlement to be paid for his legal services to Westfair and the unjust

enrichment of Westfair; therefore, it should not be a bar to his defence. He argues that the motion judge erred by finding that he wasseeking to relitigate the case when he was not seeking to challenge either the decision of the Law Society or its legal consequences. Hisposition is that, for the purpose of the reimbursement claim, some of the facts considered in the discipline hearing should be consideredanew in this new context. [23] While Mr.

Mackinnon did not advance his appeal regarding the motion judge’s dismissal of his counterclaim verystrenuously, his position is that the Law Society did not resolve the reimbursement claim properly. The Respondent’s Position [24] The Law Society argues that the issues now raised by Mr. Mackinnon are the same as those that were raised before theDiscipline Committee – Did Mr. Mackinnon misappropriate money from his former client? How much did he misappropriate? Did hehave permission to use trust funds for any purpose other than to pay into court?

Did he have permission to use trust funds to pay his legalfees and disbursements? Were his reporting letters and statements of account legitimate or fabricated? [25] Its position is that Mr. Mackinnon had a full hearing before the Discipline Committee in which all of these issues werefully canvassed, argued and determined, and that he availed himself of his right of appeal, which was unanimously dismissed. It statesthat there is no meritorious reason to allow him to relitigate these same issues in this matter. [26] Finally, it argues that the motion judge’s decision to dismiss Mr.

Mackinnon’s defence as an abuse of process is adiscretionary decision that is entitled to great deference, given that he exercised that discretion according to proper legal principles, didnot misdirect himself and no injustice occurred. [27] Regarding the counterclaim, the Law Society’s position is that Mr. Mackinnon has confused the reimbursement claimwith the professional liability claim. It points out that, given the findings by Greenberg J., the evidence of Mr. Mackinnon’s negligencewas overwhelming. As a result, the professional liability claim was settled promptly, without Mr.

Mackinnon having to retain counsel,so that there was no professional liability claim against him. [28] The Law Society argues that the reimbursement claim arises out of Mr. Mackinnon’s misappropriation of Westfair’smoney, for which Mr. Mackinnon had no insurance (in fact, no member of the Law Society has insurance to cover their own acts ofmisappropriation). It states that, as he was not insured, there was no duty owed to him by either the Law Society or the CLIA.

Further, itnotes that, while the CLIA does insure the Law Society to cover its liability for misappropriation by its members, in this case, the CLIAwas not involved at all because the amounts at issue did not exceed the Law Society’s deductible. The Law Society’s position is that themotion judge committed no error in granting its motion for

summary judgment and dismissing the counterclaim. V. STANDARD OF REVIEW [29] First, it is important to note that this is not an appeal from the Discipline Committee’s finding that Mr. Mackinnon hasmisappropriated funds or his subsequent disbarment. Thus, the standards of review relevant to judicial review of an administrationdecision do not apply in this appeal. [30] The underlying claim is a civil action; therefore, the applicable standards of review begin with those set out in Housen v.Nikolaisen, 2002 SCC 33 at paras. 8, 10, 37, [2002] 2 S.C.R. 235. In

summary, for questions of fact or mixed fact and law, the standardof review is palpable and overriding error unless a question of mixed fact and law involves an extricable question of law, in which casethe extricable question of law is reviewed on the standard of correctness. (See also Homestead Properties (Canada) Ltd. v. Sekhri et al.,2007 MBCA 61 at para. 13, 214 Man.R. (2d) 148; and Towers Ltd. v. Quinton’s Cleaners Ltd. et al., 2009 MBCA 81 at paras. 22-23,245 Man.R. (2d) 70.) [31] Further, as the ultimate decision granting or refusing both an application for

summary judgment and a remedy pursuant tothe doctrine of abuse of process is discretionary, the standard of review regarding discretionary decisions must be applied. That standardwas described by this court in Towers as highly deferential (see para. 25). Freedman J.A. adopted the following description of thestandard from Elsom v.

Elsom, (SCC), [1989] 1 S.C.R. 1367 at 1375 (at para. 25): …. ... [A]n appellate court will be justified in intervening in a trial judge’s exercise of his discretion only if the trial judge misdirectshimself or if his decision is so clearly wrong as to amount to an injustice. .... [32] He went on to explain the standard as follows (at para. 28): The standard for intervention in a discretionary decision is very high. It is not enough that the appellate judges think the trial (ormotions) judge simply reached a wrong result; there rarely is, in truly discretionary matters, a “right” or “wrong” result.

It is not enoughthat the appellate judges would have decided differently; they are to respect, and not replicate, the unique role of trial judges. Assumingthere have been no reversible errors on fact or law, the appellate judges are not to usurp the trial judge’s role in discretionary matters,barring a decision so “clearly wrong” as to yield a truly unjust result.

[ 33 ] The parties have not raised any issue suggesting that the motion judge made any errors of fact, applied the wrong legal principles, or that he did not apply those principles correctly as regards his decision on the doctrine of abuse of process. Mr. Mackinnon argues that motion judge erred in finding that, by operation of the doctrine of abuse of process, he was barred from challenging the reimbursement to Westfair from the reimbursement fund.

Thus, he is challenging the discretionary aspect of the motion judge’s decision, for which the standard of review permits appellate intervention only if the decision was so clearly wrong as to amount to an injustice. VI. THE LAW – ABUSE OF PROCESS [ 34 ] The Supreme Court of Canada, which was unanimous on this issue, reviewed and clarified the principles of the three common law doctrines of collateral attack, issue estoppel and abuse of process in Toronto (City) .

Arbour J., for the majority, explained the doctrine of abuse of process as follows (at para. 35): Judges have an inherent and residual discretion to prevent an abuse of the court’s process.

This concept of abuse of process was described at common law as proceedings “unfair to the point that they are contrary to the interest of justice” ... and as “oppressive treatment” …. …. [ 35 ] Arbour J. explained that there is nothing improper in wanting to attack a judicial finding, but that attack must be accomplished through the appeal and judicial review processes to maintain the important aspect of finality (see para. 46). She then stated (at para. 46): .... What is improper is to attempt to impeach a judicial finding by the impermissible route of relitigation in a different forum. …. [ 36 ] Mr.

Mackinnon argues that he is not attempting to relitigate the same issues that were determined by the Discipline Committee, but is raising new issues in his defence, being whether he had actually done the work for Westfair and whether Westfair, which paid nothing for those legal services, was unjustly enriched by the reimbursement. He states that, if Westfair was unjustly enriched, he should not be required to reimburse the Law Society. [ 37 ] A similar argument against the application of the three doctrines was raised in Toronto (City) .

In that case, an employee was fired from his employment as a recreation instructor with the City of Toronto following a conviction for sexually assaulting a boy under his supervision. He grieved the loss of his employment, denying that he had committed the sexual assault. The arbitrator admitted the criminal conviction in the arbitration as evidence of a presumption that the sexual assault had occurred but ultimately found that the employee had rebutted the presumption and, as a result, had been dismissed without just cause.

On judicial review, the employee argued that the three doctrines did not apply because the issue was not the same – the conviction was a criminal proceeding, while the arbitration dealt with whether he had been unjustly dismissed. [ 38 ] While the element of mutuality of issues is a requirement of the doctrine of issue estoppel, it is not a requirement of the doctrine of abuse of process. In Toronto (City) , Arbour J. stated (at para. 37): .... ...

Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice. .... [ 39 ] In explaining the focus of abuse of process, she stated (at para. 43): .... ... [T]he focus is less on the interest of parties and more on the integrity of judicial decision making as a branch of the administration of justice.

In a case such as the present one, it is that concern that compels a bar against relitigation, more than any sense of unfairness to a party being called twice to put its case forward, for example. When that is understood, the parameters of the doctrine become easier to define, and the exercise of discretion is better anchored in principle. [ 40 ] She also said that, because the focus is on the process rather than the parties, it does not matter whether the party against whom the doctrine is being invoked is the plaintiff or the defendant in the proceeding (see paras. 48-50).

[ 41 ] Finally, Arbour J. acknowledged that there may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system and lead a court to refuse to apply the doctrines (at para. 52): (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. …. [ 42 ] These, she stated, are discretionary factors that, if present and in appropriate circumstances, may overcome the interest of maintaining the finality of the original decision in order to prevent the application of the doctrine of abuse of process where its application would achieve an undesirable result (see para. 53).

VII. ANALYSIS [ 43 ] While Mr. Mackinnon argues that he is not relitigating the issues that were dealt with by the Discipline Committee, a reading of his amended statement of defence and his affidavit of September 14, 2012, in opposition to the motion for

summary judgment show that to be incorrect. His defence is based squarely on the following facts: - that Mr. Mackinnon prepared invoices and reporting letters and mailed them to Westfair before transferring funds from the trust account to pay those invoices (see paras. 12, 18); - that it was an express term of the contract between Mr. Mackinnon and Westfair that Westfair would pay for Mr. Mackinnon’s services from the monies that he held in trust (see paras. 13, 17) and that Mr. Mackinnon could use that trust money to satisfy any fees and disbursements that he incurred (see para. 7); and, - that Mr.

Mackinnon denies that the monies transferred constitute a misappropriation or wrongful conversion in whole or in part (see paras. 14, 19, 20). [ 44 ] These are repeated in his affidavit of September 14, 2012, wherein he also states (at paras. 17-18, 30-32): ... [I]t appears that the [Discipline Committee] drew conclusions which were unsupported by the evidence. ... [E]ven though Westfair claimed not to have received these statements of account and reporting letters Westfair responses which followed a number of the reporting letters indicate otherwise. ....

It was understood and agreed that the funds could be used to resolve any claims made by third parties, and satisfy any fees and disbursements incurred by me on behalf of Westfair in the prosecution of these matters .... ... [A]ll monies transferred in satisfaction of my statements of account were expressly or impliedly authorized, and made properly and under colour of right for services that were rendered to Westfair pursuant to my genuine and reasonable understanding of Westfair’s instructions and do not constitute a misappropriation. ...

I did not misappropriate the said monies. [ 45 ] All of these issues were raised before the Discipline Committee, which dealt with them by finding: - that all of the statements of accounts were fabricated in the sense that they were produced to provide a paper trail, but were never sent to Westfair (count 4 of the citation); - that it was clear that the funds were paid to Mr. Mackinnon only to satisfy the statutory and contractual claims and not, either expressly or implicitly, to cover his legal fees (count 1 of the citation); and - that Mr.

Mackinnon misappropriated the funds to his own use in violation of his professional obligations (count 1 of the citation). [ 46 ] On the question of the validity of the statements of accounts (on which Mr. Mackinnon now relies), the Discipline Committee accepted the evidence of Mr. Morrow, a Westfair employee who was overseeing the accounting of certain construction projects. He testified that he spoke to Mr. Mackinnon in December 2002 regarding the status of these claims and that Mr. Mackinnon told him that very little work had been done to that point, which was why he had not sent any bills to Westfair.

By that date, Mr. Mackinnon’s file showed seven statements of accounts totalling $43,960.98. It is hard to understand how “very little work” can cost $43,960.98. [ 47 ] Thus, it is clear that, if permitted to pursue his defence, Mr. Mackinnon will be raising the issues already resolved by the

Discipline Committee, thereby requiring the Law Society to relitigate the factual findings that formed a significant part of the decision made by the Discipline Committee and that were upheld on appeal. The Law Society would suffer the expense of proving the same issues that it has already litigated, and the witnesses would be required to testify a second time about matters already resolved. An inconsistent result would call into question the decision of the Discipline Committee and this court.

Thus, permitting such a defence would violate the principles of judicial economy, consistency, finality and the integrity of the administration. [ 48 ] This was the finding of the motion judge, who stated (at para. 57): Although [Mr.] Mackinnon states that he does not seek to challenge the decision itself, the bulk of his affidavit evidence and points to be argued do just that. If he is truly not challenging the decision of the Discipline Committee or its legal effects, then he cannot defend himself in the Law Society’s action to recover the funds he was found to have misappropriated.

In my view, his defence and counterclaim are nothing but a denial of matters already adjudicated and a self-serving artificial reformulation of the issues in an attempt to relitigate the underlying issues. [ 49 ] Further, as the motion judge correctly found, there are no circumstances (as set out in para. 41 herein) that would create any unfairness to Mr. Mackinnon if he is barred from relitigating these issues. The first proceeding raised an important and significant issue, that being whether Mr. Mackinnon had misappropriated funds and should be disbarred.

That was a much more significant matter, involving the loss of his livelihood, than the present claim, which involves the payment of money. Further, Mr. Mackinnon has neither pointed to any new evidence that was not available at the first hearing nor shown that that hearing was somehow tainted. Thus, there are no circumstances in this matter that indicate that the bar against relitigation would create any unfairness. [ 50 ] Mr. Mackinnon argues that he is suffering unfairness because he has not been paid for his legal services to Westfair, which he says were set out in the statements of accounts that he prepared.

As can be seen from the amended statement of defence, his argument of unfairness is based on facts that have already been determined against him by the Discipline Committee, including a finding that the statements of accounts on which he now relies were fabricated to provide a paper trail. To put forward his argument of unfairness, he would have to relitigate those issues that have already been determined, and this he is not entitled to do. [ 51 ] For these reasons, it is clear that the motion judge did not commit any error in concluding that, by application of the doctrine of abuse of process, Mr.

Mackinnon was barred from proceeding with his defence. [ 52 ] The CLIA was never involved with the reimbursement claim because Mr. Mackinnon did not have insurance to cover his own misappropriation and the amounts at issue did not exceed the Law Society’s deductible. Thus, the motion judge was correct in granting

summary judgment dismissing the counterclaim against it. [ 53 ] The Law Society settled the negligence claim against Mr. Mackinnon expeditiously and at no cost to Mr. Mackinnon, except for his deductible, so there was no genuine issue for trial in that regard. Mr. Mackinnon’s counterclaim against the Law Society arises out of its settlement of the reimbursement claim without pursuing a reduction for the legal services that he undertook. This ground of appeal is related to his allegation that the payment to Westfair without any allowance for his legal work on its behalf was unfair and unjust to him.

It was open to the motion judge to find, on all of the evidence, that there was no injustice arising from the Law Society’s handling of this matter. This was a discretionary decision and I would find that the motion judge’s decision was not so clearly wrong as to amount to an injustice. [ 54 ] In the circumstances, it is not necessary to address the motion judge’s decision with respect to the application of the doctrines of issue estoppel and collateral attack. VIII. CONCLUSION [ 55 ] The motion judge did not err in finding that, by the operation of the doctrine of abuse of process, Mr.

Mackinnon was barred from proceeding with the defences set out in his amended statement of defence. As a result, he has not raised any genuine issue for trial in response to the prima facie case for judgment established by the Law Society. [ 56 ] Further, Mr. Mackinnon has not shown that the motion judge erred in dismissing his counterclaim. IX. DECISION [ 57 ] In the result, I would dismiss the appeal with costs to the Law Society. J.A. I agree: J.A. I agree: J.A.