Howe v. Rees, 2022 NSSC 230

SUPREME COURT OF NOVA SCOTIA Citation: Howe v. Rees , 2022 NSSC 230 Date: 20221104 Docket: Hfx No. 500125 Registry: Halifax Between: Lyle Howe Plaintiff v. Victoria Rees, Raymond Larkin, Nova Scotia Barristers Society Defendants Decision on Plaintiff’s Motion to Amend Pleadings and Defendant’s Motion (Mr. Larkin) for

Summary Judgment on Pleadings Judge: The Honourable Justice Peter Rosinski Heard: April 1, 2022, in Halifax, Nova Scotia Counsel: Laura McCarthy, for the Plaintiff Michael Brooker K.C. and Sydney Hull, for the Defendants Ms. Rees and Mr. Larkin Geoffrey Breen and Erin Mitchell, for the Defendant Nova Scotia Barristers Society The original text of this decision has been corrected according to the erratum dated December 8, 2022 Table of Contents A - Introduction 2 B - General background chronology 3 C - A

summary of the motions 4

i) Mr. Howe’s motion to amend his pleadings 4 ii) Mr. Larkin’s motion for

summary judgment on pleadings and claims of abuse of process 9 D - A

summary of my conclusions regarding the motions 12 E - The legal framework governing when amendments to pleadings should be permitted 28 F - What does it mean when one speaks of pleadings as being “untenable” or “unsustainable”, such that leave to amend should not be

granted regarding the amendments? 32 G - Does Mr. Howe plead causes of action that exist in law, and does he allege sufficient material facts to establish each of the elements of the causes of action pleaded against each of the three defendants, namely: negligence; defamation (only pleaded as against the Society) malicious prosecution; civil conspiracy; public malfeasance; individual and systemic racial discrimination; “unlawful harm”? 36

i) Negligence 39 ii) Malicious Prosecution 43 iii) Defamation 50 iv) Civil Conspiracy 56

v) Public malfeasance/malfeasance in Public Office 61 vi) Breaches of

section 15 of the Charter of Rights and Freedoms based on individual and systemic racial discrimination 68 H - Why the limitation period has expired in relation to all causes of action 75

i) Why the pleadings are unsustainable on an examination of the Limitation of Actions Act, SNS 2014, c. 35 (“LAA”) 75

a) the causes of action pleaded in original statement of claim 77

b) the additional causes of action pleaded in the proposed amended statement of claim 82 ii) why some of the pleadings are unsustainable on an examination of the common law and statutory immunities that are claimed by the defendants 87

a) Immunity pursuant to

section 81 of the Legal Profession Act, SNS 2004, c. 28, as amended 88

b) common law immunity for quasi-judicial decision-making persons and bodies 92 I - Why allowing the amendments would effect an abuse of process or violate other legal principles 94

i) The defendants’ “abuse of process” arguments 94 1 - Collateral attack 100 A - The decision of the Misconduct Hearing Panel 106 B - What the Court of Appeal decided in relation to the Hearing Panel decisions [2019 NSCA 81] 110 2 - Other bases for concluding there is an abuse of process 126 Overall Conclusion 131 By the Court: A – Introduction [ 1 ] Mr.

Howe, a disbarred lawyer, has sued the defendants for their alleged acts and omissions in relation to the administrative processes of the Nova Scotia Barristers Society [“the Society” or “NSBS”] that led to his interim suspension from practice on September 1, 2016, and ultimately contributed to a finding by a Hearing Panel of the Society of numerous instances of misconduct by him in its decision on July 17, 2020, which led to his disbarment by the Society on October 20, 2017. [1] [ 2 ] In a statement of claim filed August 31, 2020, he claims against the defendants for negligence in their investigation and actions taken against him, malicious prosecution , and defamation in both slander and libel. [2] [ 3 ] He has since conceded that he only claims defamation by the Society, not as against Mr.

Larkin or Ms. Rees. [ 4 ] Before me are two motions: 1. Mr. Howe’s motion seeking leave from the court to amend his pleadings; and

2. Mr. Larkin’s motion for

summary judgment on pleadings, and alternatively, that Mr. Howe’s pleadings constitute an abuse of process pursuant to Civil Procedure Rule [“ CPR ”] 88. [ 5 ] Ms. Rees and the Society support Mr. Larkin’s position. [ 6 ] I largely agree with the defendants in relation to the two motions. [ 7 ] For the reasons that follow, I deny leave to Mr. Howe to amend his pleadings, and grant Mr. Larkin’s motions. Consequently, I dismiss Mr. Howe’s existing civil suit against each of the defendants. B - General background chronology [3] [ 8 ] Mr. Howe graduated from Dalhousie Law School in May 2009.

He was called to the Nova Scotia Bar in June 2010. From August 2011 onward, he was a sole practitioner focusing mainly on criminal defence matters. In June 2013, Laura McCarthy joined his firm upon her admission to the Bar. [ 9 ] As a result of complaints received between June 2010 and October 2011, the Nova Scotia Barristers Society [“the Society”] conducted a review of Mr. Howe’s practice led by John Rafferty, KC. The Society’s Complaints Investigation Committee [CIC] is responsible for directing and reviewing the investigation of such complaints.

In relation to one complaint only, he was counselled by the Society. [ 10 ] After further complaints, on October 3, 2013, the CIC ordered a second review of Mr. Howe’s practice and retained Stanley MacDonald, K.C., to conduct it. Pursuant to the findings of that review, the CIC retained Robert Wright to conduct an “Impact of Race and Cultural Assessment” to assist it in its investigation. [4] The Society proposed practice restrictions, to which Mr. Howe agreed on April 17, 2014. [ 11 ] Further complaints in relation to Mr. Howe’s practice were received by the Society in 2014.

The Society continued its investigation into 2014 and 2015. It directed Victoria Rees, K.C., who was the Director of Professional Responsibility for the Nova Scotia Barristers Society at all material times, to lay charges against Mr. Howe, and the Society did so on May 25, 2015 [“the 2015- charges”]. [ 12 ] In October 2015, Malcolm Jeffcock, K.C., was appointed as Mr. Howe’s practice supervisor. [ 13 ] In addition to some pre-existing charges, the CIC approved new charges against Mr.

Howe arising from new complaints relating to his conduct in June and July 2016 [“the 2016 charges”]. [ 14 ] Raymond Larkin, K.C., was retained by the Society to act as its counsel in relation to an interim hearing pursuant to

section 37 of the Legal Profession Act . That was his only involvement in relation to Mr. Howe. As a result of that one-day ex parte hearing, the CIC rendered a decision on September 1, 2016, to suspend Mr. Howe from practising law pursuant to

section 37 of the Act . After a 66-day disciplinary hearing, Mr. Howe was found guilty of numerous charges brought against him by the Society, and consequently disbarred on October 20, 2017. [5] [ 15 ] On October 24, 2019, Mr. Howe’s appeal thereof was dismissed ( 2019 NSCA 81 , leave to appeal denied, [2019] SCCA No. 522, December 20, 2019). [ 16 ] Mr.

Howe filed a Notice of Action on August 31, 2020, in which he alleged that the Society, Victoria Rees, K.C., and Raymond Larkin, K.C., caused him to suffer damages as a result of negligence in the investigation of his conduct as a lawyer, as well as alleging malicious prosecution for alleged breaches of professional conduct, and defamation (libel and slander) of him. [ 17 ] On July 23, 2021, Mr. Larkin filed a motion for

summary judgment on pleadings ( CPR 13.03) and, alternatively, for an order dismissing the proceeding against him as an abuse of process ( CPR 88). [ 18 ] On November 15, 2021, Mr. Howe filed a motion for leave to amend his existing pleadings. The Society, Ms. Rees, and Mr. Larkin oppose the motion. C - A

summary of the motions

i) Mr. Howe’s motion to amend his pleadings [ 19 ] His proposed amendments to existing pleadings should generally be granted provided: Mr. Howe is not acting in bad faith in requesting the amendments, and the defendant parties will not consequently suffer serious non-compensable prejudice-neither of which the defendants argue here; and that the proposed pleadings are tenable and sustainable – which the defendants say is not the case. [ 20 ] Mr. Howe pointed out that it is early in the litigation process, with only the pleadings available at present.

There has been no opportunity for disclosure, discovery, and the associated advantages that arise as a result of those processes. [6] Mr.

Howe urges this court should take an especially generous view of the tenability/sustainability of his present pleadings in that light. [ 21 ] However, his concerns are overstated because he overlooks the substantial insights he has had into the workings of the administrative procedures (including between 2011-2016) regarding his suspension and disbarment by virtue of him having been present for the proceeding throughout (with the exception of his non-attendance at the ex parte interim suspension hearing on September 1,

2016); as well as the Misconduct hearing, Sanction hearing of the Society, and the arguments in the Court of Appeal. [ 22 ] He further argues that the court should be very reluctant to make any determination regarding the discoverability of the harms he claims, and therefore when his various causes of action accrued, thus triggering the limitation period for each. I am satisfied that each of his claims’ discoverability can be reliably ascertained based on his own pleadings. [ 23 ] Mr.

Howe also urges this court not to be entirely deferential to the conclusions of our Court of Appeal in relation to its conclusions regarding “discrimination”. My analysis here is limited to the pleadings – therefore findings of fact by the Hearing Panel and commentary from the Court of Appeal are only relevant to Mr. Larkin’s abuse of process arguments. [7] [ 24 ] By motion filed November 15, 2021 (pursuant to CPR 38.12 and 83.11), Mr.

Howe has requested the court’s permission to file an amended statement of claim which includes the three original causes of action pleaded, and adds the following causes of action against all three defendants: • civil conspiracy; • malfeasance in public office; • individual and systemic discrimination based on race (Mr. Howe has conceded that he is not relying on a purported common law tort of discrimination pursuant to claimed breaches of Human Rights legislation, but rather on a breach of

section 15 of the Canadian Charter of Rights and Freedoms “ Charter ”); and • harm by way of the “unlawful means” tort. [ 25 ] The defendants argue that the court should refuse permission to file an amended statement of claim because the causes of action are either untenable or unsustainable in law, based on the pleaded facts therein and Mr. Howe’s written Answers to Demand for Particulars. They say that assuming that the facts he alleges can be proved to be true, it is plain and obvious that his pleadings do not disclose a reasonable cause of action – there is no chance that Mr.

Howe might succeed, because his pleadings contain various “radical defects” that undermine each of his causes of action – Odhavji Estate v. Woodhouse , 2003 SCC 69 , at paras. 14-16 . [ 26 ] They argue that all the causes of action in Mr.

Howe’s original and proposed amended statements of claim are doomed to failure based on the pleadings, because: [8] 1. in law, or on the pleaded facts, they disclose no reasonable cause of action; 2. even if they disclose a reasonable cause of action, that cause of action is defeated by common law and statutory immunities that protect the defendants; 3. such causes of action are defeated by the limitation period in

section 8 of the Limitation of Actions Act , c. 35 2014 SNS; and 4. permitting them to proceed would effect an abuse of process (per CPR 88, violate the rule against collateral attack; and the doctrine of res judicata (issue estoppel)). [ 27 ] Citing CPR 4.02(4), the defendants point out that CPR 38.03(3) mandates that “a pleading must provide full particulars of a claim alleging unconscionable conduct , such as fraud, fraudulent misrepresentation, misappropriation, or malice .” [My bolding added] [ 28 ] I have a responsibility to assess whether pleadings that allege “unconscionable conduct” have provided “full particulars” of the underlying material facts.

As Justice Arthur LeBlanc stated in Kasheke v. Canada , 2017 NSSC 61 : [27] The requirement to assume the truth of facts pleaded is not unqualified . The Supreme Court of Canada noted in Imperial Tobacco that “[a] motion to strike for failure to disclose a reasonable cause of action proceeds on the basis that the facts pleaded are true, unless they are manifestly incapable of being proven” : para. 22 .

Further, it has been held that bald allegations in the nature of bad faith, malice, and abuse of power do not constitute material facts for pleading purposes unless they are particularized : see, for instance, Merchant Law Group v. Canada (Revenue Agency) , 2010 FCA 184 , [2010] F.C.J. No. 898 , at paras. 34-38 ; Adventure Tours Inc. v. St. John's Port Authority , 2011 FCA 198 , [2011] F.C.J. No. 875 , at paras. 25-26 and 63 .

This principle is also recognized in Civil Procedure Rule 38.03(3), which provides that “[a] pleading must provide full particulars of a claim alleging unconscionable conduct, such as fraud, fraudulent misrepresentation, misappropriation, or malice.” [28] The plaintiff is not necessarily required to plead the precise legal characterization of a claim; as Stratas J. said, for the majority, in Paradis Honey Ltd. v. Canada (Attorney General) , 2015 FCA 89 , [2015] F.C.J.

No. 399 , “plaintiffs who choose to use a particular legal label are not struck out just because they chose the wrong label”: para. 113. [My bolding added] [ 29 ] I conclude that the following causes of action claim “unconscionable conduct” as referenced in CPR 38.03(3): malicious prosecution; malfeasance in public office. Based on the pleadings (racial bias/discrimination) I also conclude that the claim of civil conspiracy and breach of

section 15 of the Charter involve “unconscionable conduct”. The claims of defamation and negligence do not involve “unconscionable conduct”. [ 30 ] At the outset, I will summarily dispose of the “unlawful means” tort, as it is doomed to fail - it is simply not available based on the pleadings (see AI Enterprises Ltd. v. Bram Enterprises Ltd ., 2014 SCC 12 , and Justice Beveridge’s reasons in Canada (Attorney

General) v. Geophysical Services Incorporated , 2022 NSCA 41 , at paragraphs 57-61 ). As Justice Farrar stated in Halifax Regional Municipality v. Annapolis Group Inc. , 2021 NSCA 3 , at paragraph 101 : “Where there is but one outcome based on the law and uncontested facts,

summary judgment should follow.” [ 31 ] Whether Mr. Howe’s pleaded or proposed causes of action are considered as untenable, or unsustainable (including being extinguished by a limitation period), or are an abuse of process - they each fail. [9] ii) Mr. Larkin’s motion for

summary judgment on pleadings and claims of abuse of process [ 32 ] I also have before me Mr. Larkin’s motion for

summary judgment on the proposed amended pleadings [10] , should leave to amend the pleadings be granted, seeking dismissal of the proceeding against him, and alternatively for an order dismissing the proceeding against him as an abuse of process pursuant to CPR 88. [11] Next, let me briefly outline the basic

summary of the applicable principles. Civil Procedure Rule 13.03(1) provides the requirements for a judge to grant

summary judgment on the pleadings:

Summary judgment on pleadings 13.03

(1) A judge must set aside a statement of claim, or a statement of defence, that is deficient in any of the following ways: (

a) it discloses no cause of action or basis for a defence or contest; (

b) it makes a claim based on a cause of action in the exclusive jurisdiction of another court or tribunal; (

c) it otherwise makes a claim, or sets up a defence or ground of contest, that is clearly unsustainable when the pleading is read on its own.

(2) The judge must grant

summary judgment of one of the following kinds, when a pleading is set aside in the following circumstances: (

a) judgment for the party making a claim, when the statement of defence is set aside wholly; (

b) dismissal of the proceeding, when the statement of claim is set aside wholly; (

c) allowance of a claim, when all parts of the statement of defence pertaining to the claim are set aside; (

d) dismissal of a claim, when all parts of the statement of claim that pertain to the claim are set aside.

(3) A motion for

summary judgment on the pleadings must be determined only on the pleadings, and no affidavit may be filed in support of or opposition to the motion.

(4) A judge who hears a motion for

summary judgment on pleadings may adjourn the motion until after the judge hears a motion for an amendment to the pleadings.

(5) A judge who hears a motion for

summary judgment on pleadings, and who is satisfied on both of the following, may determine a question of law: (

a) the allegations of material fact in the pleadings sought to be set aside provide, if assumed to be true, the entire facts necessary for the determination; (

b) the outcome of the motion depends entirely on the answer to the question. [ 33 ] In Mehta v. Wolfville Animal Hospital , 2021 NSSC 363 , Justice Hunt provided a helpful

summary of the applicable principles: [25] Under Rule 13.03(1)(

a) and Rule 13.03(1)(c),

summary judgment on the pleadings must be granted if a statement of claim discloses no cause of action or makes a claim which is clearly unsustainable when the pleading is read on its own. [26] The Nova Scotia Court of Appeal and other courts have provided substantial guidance on the question of when

summary judgment on the pleadings ought to be granted.

[27] The legal principles applicable to

summary judgment on the pleadings have been well delineated in caselaw. They can besummarized as follows:

(1) A reviewing court must strike a claim that is absolutely unsustainable, discloses no cause of action, or is certain to bedismissed.

Summary judgment on the pleadings clears the docket of claims or defences that are bound to fail: Nova Scotia v.Carvery, 2016 NSCA 21 at para. 23;

(2) It must be “plain and obvious” that the claims as pleaded cannot succeed because, for example, “the pleading, on its face,discloses no reasonable cause of action; or ...the claim is absolutely unsustainable; or ...it is certain to fail because of a radicaldefect”: Hunt v. T&N PLC, (SCC), [1990] 2 SCR 959, at paras 30-34; Homburg Canada Inc. v. Halifax (RegionalMunicipality), 2013 NSCA 61, at para 7;

(3) In assessing the pleading, the facts contained in the challenged document must be taken as proved and true: Homburg CanadaInc. v. Halifax (Regional Municipality), supra. at para 7;

(4) Although the pleaded facts are deemed to be true, the pleading party cannot simply stand on the mere possibility that thematerial facts necessary to sustain a cause of action might eventually turn up. A plaintiff “must plead facts material to the cause of actionthey assert”: Canada (Attorney General) v. Walsh Estate, 2016 NSCA 60 at para 18;

(5) The power to strike out clams that have no reasonable prospect of success is a valuable housekeeping measure essential toeffective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chanceof success go on to trial: Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42;

(6) The power to strike should be used with care. The law evolves. The court should be generous and err on the side of permittingnovel, but arguable, claims to proceed: Canada (Attorney General) v. Walsh Estate, supra, at para. 18. [34] I have concluded that, the facts Mr.

Howe has pleaded (in his original and proposed amended Statement of Claim and Answersto Demand for Particulars) could not support the drawing of inferences therefrom that are necessary for his causes of action to be foundto be tenable, are otherwise not tenable, and there are other reasons why they are not sustainable. [35] While bearing in mind Chief Justice Wood’s comments in EllisDon Corporation v. Southwest Construction, 2021 NSCA 20, atparagraphs 27-8,[12] I am satisfied that the Mr. Larkin’s motion for

summary judgment in relation to all causes of action pleaded shouldbe granted, insofar as all defendants are concerned.[13] D - A

summary of my conclusions regarding the motions [36] To allow for a present understanding of the issues, I will elaborate on the pleadings now. [37] I conclude that the negligence pleading cannot be said to be tenable or sustainable, in relation to Ms. Rees, Mr. Larkin, or theSociety. [38] The express pleadings in this respect arise at paragraphs 2, 5, and 11 of the proposed amended statement of claim which read: The first defendant is the Nova Scotia Barristers Society.

The Plaintiff claims the defendant was negligent in their investigation andactions taken against the Plaintiff… is vicariously liable for the actions of Victoria Rees and Raymond Larkin.; The Plaintiff pleads that the defendants the Nova Scotia Barristers Society, Victoria Rees and Raymond Larkin were negligent in theirinvestigation of the Plaintiff…; The Nova Scotia Barristers Society and Victoria Rees owed the Plaintiff a duty of care to not discriminate against the Plaintiff and toconduct an investigation that was not negligent. [My underlining added] [39] And in Mr.

Howe’s Answers to the defendants (Rees and Larkin) Demand for Particulars, he stated: 1. Particulars of the claim of negligence against Victoria Rees alleged in paragraphs 3 and 5 of the [original] statement of claim.

Answer Ms. Rees was negligent in that she failed to meet her professional, fiduciary and other duties with respect to her position as Director of Professional Responsibility. The particulars include but are not limited to the following,

a) Ms. Rees negligence was with respect to the investigations, conduct and all of the proceedings against the Plaintiff including but not limited to those referenced in paragraphs 9, 10, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, and 26 of the [original] statement of claim;

b) Ms. Rees was negligent in the exercise of her duty to ensure that the investigations and actions in relation to the Plaintiff were driven solely by the stated and implied legislative purposes of the [Society] and her position:

i) Ms. Rees was negligent in her duty to ensure that the values, principles and objectives of the [Society] were upheld in investigating and disciplining the Plaintiff in the ways that include the following: -Ms. Rees investigation was negligent in that her racial bias (as particularized in paragraph 14 of the statement of claim) influenced the nature of her investigation towards the Plaintiff and resulted in the application of racialized double standards and other discriminatory treatment towards the Plaintiff : -Ms. Rees’ personal motives, relationships and interests (as particularized in

part in paragraphs 12, 13, 15, 17 and 24 of the [original] statement of claim and the conflict of interests described in the Answer to question 6 (below) influenced the nature of her investigation towards the Plaintiff and resulted in the application of double standards and other discriminatory treatment towards the Plaintiff.

c) Ms. Rees was negligent in her approach to selecting investigators and agents for the [Society] . Ms. Rees was negligent in her choice of investigators and agents. Ms. Rees was negligent in that she failed to ensure that the investigators and agents that she chose and/or have a role in choosing to investigate the Plaintiff, investigated and proceeded in a fair, reasonable manner that applied standards that were not racially or otherwise bias . Ms.

Rees failed in her approach to instructing and/or supervising the nature of the investigations in proceedings that were conducted by investigators and agents that she chose and/or have a role in choosing to investigate and otherwise proceed against the Plaintiff. The investigators and agents referred to in this paragraph include, but were not limited to : i. Mr. Larkin, this was particularized in

part in paragraphs 11, 13, 18, 19, 20, 21, 24 and 26 of the [original] statement of claim ii. Michelle James iii. Stan MacDonald iv. Malcolm Jeffcock v. Elaine Cumming vi. John Rafferty vii. Robert Hagell viii. Luke Craggs; and ix Elizabeth Buckle.

d) Ms. Rees was negligent in her professional duties more generally, including but not limited to the following: i. Ms. Rees was negligent in her duty to ensure that she was accurate and honest with respect to her statements when shealleged that the Plaintiff acted unethically ii. Ms. Rees was negligent in her duty to ensure that she did not act in a discriminatory and unfair manner and/or act on racialprejudice with respect to the Plaintiff; and iii. Ms.

Rees was negligent in her duty to ensure that her actions did not result in unfair or discriminatory outcomes to thePlaintiff.[14] [40] References to alleged expressions of “racial bias” by Victoria Rees against the Plaintiff were outlined in Mr. Howe’sAnswers[15] which I will not cite verbatim, but Mr. Howe has focused in particular on the comments of Ms. Rees in an email regardingthe Society’s retention of Robert Wright, an acknowledged expert in the preparation of Impact of Race and Culture Assessments[IRCAs] in the criminal context regarding African Nova Scotian offenders (see R. v.

Anderson, 2021 NSCA 62) in relation to Mr.Howe’s ongoing disciplinary proceedings before the Society. [41] I do not accept that the Society has a common law private “duty of care” to its member,[16] or that even if such a duty existed,there is a properly pleaded breach of such duty to reasonably prudently investigate Mr. Howe.[17] [42] Moreover, absent a proper pleading of bad faith, mere negligence in the statutorily presumed (per s. 81 of the LPA) good faithperformance of the Society’s duties and functions does not give rise to liability – see for example: Mohammad v.

Sajjad-Hazai, 2021ONSC 8490, at paragraphs. 11-14, per Corbett J; Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618; Robson v.Law Society of Upper Canada, 2016 ONSC 5579, at paragraphs. 39 - 40, affirmed 2017 ONCA 468; and Fitzpatrick v. The College ofPhysical Therapists of Alberta, 2020 ABCA 164.[18] [43] The pleadings do not support the drawing of the necessary inferences therefrom that the defendant Ms. Rees acted in bad faith,with malice or for improper purpose as against Mr. Howe per CPR 38.03.(3).[19] [44] Mr.

Larkin could also claim a privilege as an advocate/lawyer (in relation to his appearance at the September 1, 2016, interimsuspension hearing) unless it can be defeated by malice or acting outside the scope of his duties – Hill v. Church of Scientology, (SCC), [1995] 2 SCR 1130, at paragraphs. 143 – 156. [45] I conclude that the pleadings do not negate Ms.

Rees’ pleaded reliance upon the statutory immunity per s. 81 of the LegalProfession Act [“LPA”] and common law witness immunity [see paragraph 12 of the statement of claim] which protect her in the absenceof “bad faith” per CPR 38.03(3). [46] My examination of the pleadings herein reveals only bald conclusory assertions of bad faith, rather than material facts fromwhich an inference of bad faith could be drawn as against Ms. Rees, Mr. Larkin or the Society - including paragraphs 21-25, of theproposed pleadings in relation to Mr.

Larkin, and the Society.[20] [47] Furthermore, I am satisfied that the expiry of the two year limitation period herein occurred on or before September 30, 2018(based on the September 1, 2016, suspension hearing and notice being provided to Mr.

Howe – which proceedings he has pointed out arehis primary focus, rather than his disbarment proceedings), but even if it were as late as October 21, 2019 (based on his disbarment onOctober 20, 2017) - in either case it would mean the filing of his statement of claim on August 31, 2020, was after the expiry of the twoyear limitation period, which extinguishes any causes of action claimed therein - Aucoin v. Murray, 2013 NSSC 37, per Wood J., as hethen was. [48] Mr.

Howe’s negligence claim is therefore also time-barred in relation to all defendants. [49] Considering CPR 38.02 and 38.03(3) and the conclusory nature of the pleadings in relation to malicious prosecution, they arenot tenable and sustainable in relation to Ms. Rees, Mr. Larkin, or the Society, in spite of paragraphs 21-25 of the proposed amendedstatement of claim. [50] Mr. Howe’s pleadings could not permit an inference that the following elements of that tort have been sufficiently pleaded: 1. that Mr. Larkin initiated the “suspension” proceedings; and 2. relevant to both Ms. Rees and Mr.

Larkin, that the proceeding has been terminated in favour of Mr. Howe; and that there wasan absence of probable cause required to initiate the (interim suspension) proceeding.[21] [51] The only significant alleged intentional misconduct/mis-statement Mr. Howe attributes to Mr. Larkin was that on September 1,2016, Mr. Larkin “intended to have his statements [that Mr. Howe was on the record as the lawyer for the criminal defendant DE andMr. Howe had a certificate from Nova Scotia Legal Aid to represent him] mislead the CIC into believing that [Mr.

Howe] was doublebooked and missed the court appearance of his client DE [on one occasion only] … to wrongfully convince the CIC that a suspension ofthe practice license of [Mr. Howe] was warranted in the circumstances”.[22]

[ 52 ] I reject Mr. Howe’s argument that the pleadings are sufficient to establish that the proceeding was “terminated in his favour ” when the charges arising from the suspension hearing were “withdrawn” by the Society on July 24, 2020 (paragraph 36 proposed pleadings), and that therefore the limitation period only began to run at that time. [ 53 ] There is no pleading of the following: 1. a “decision” about the merits of the allegations/charges that led to his suspension; 2. that the charges were withdrawn because there was no basis for them having been initially made against Mr.

Howe; or 3. that there was no basis on their merits for them to be continued. [ 54 ] Regarding the defamation pleadings, including Mr. Howe’s Answer to Demand for Particulars from the Society, [23] Mr. Howe conceded that he is now only carrying forward this cause of action as against the Society alone. It is, however, nevertheless not tenable and sustainable.

The material facts supporting such a claim are missing. [24] [ 55 ] The civil conspiracy pleadings, whether viewed as a predominant purpose conspiracy or an unlawful means conspiracy, cannot be said to be tenable or sustainable in relation to any of the defendants.

The material facts supporting such a claim are missing – CPR 38.03(3). [25] [ 56 ] At paragraphs 30 – 31, the proposed amended pleadings read in part: [26] … The defendants unlawfully conspired and/or agreed to allow for or support the systemic discrimination (including stereotypes and marginalization) of the Plaintiff within the practice of law whilst unjustly investigating and prosecuting the Plaintiff… In furtherance of the conspiracy, the following acts were done by the defendants and their employees/agents/contractors… applied racialized double standards to the Plaintiff and pursued meritless charges against the Plaintiff… hired Raymond Larkin to conduct an ex parte application before the Complaints Investigation Committee to have the Plaintiff suspended from practising law . [My underlining added] [ 57 ] In relation to the malfeasance in public office pleadings, CPR 38.03(3) is also applicable. [ 58 ] That cause of action is not tenable or sustainable against Ms.

Rees [e.g. the elements of the tort require that there be a public officer who engaged in deliberate and unlawful conduct in their capacity as such, and that they must have been aware (or recklessly indifferent) both that the conduct was unlawful and that it was likely to harm the plaintiff ( Odhavji Estate v. Woodhouse , 2003 SCC 69 ; Ontario (Attorney General) v. Clark , 2021 SCC 18 ; Geophysical Services Inc. v. Canada (Attorney General) , 2021 NSSC 77 / 2022 NSCA 41 ). [ 59 ] As with malicious prosecution, I conclude the pleadings are not tenable and sustainable in relation to Ms.

Rees because they do not sufficiently plead the elements of this tort regarding her conduct, including that no inference of bad faith/improper motive could be drawn. [ 60 ] In

summary, Mr. Howe’s allegations at paragraphs 21 - 25 of his proposed amended statement of claim focus on his allegation that Mr. Larkin engaged in deliberate and unlawful conduct (misleading statements that Mr. Howe was double-booked and missed a court appearance in relation to his client DE, on one occasion only, and an inference that this was for an improper purpose) in his capacity as counsel for the Society at the September 1, 2016, ex parte interim suspension hearing regarding Mr. Howe. [27] [ 61 ] In relation to Mr.

Larkin, and the Society, the essential elements of this tort have not been sufficiently pleaded. Consequently, Mr. Larkin is not precluded from reliance upon the presumptive good-faith based common law and statutory immunities otherwise available vis-à-vis this tort (or malicious prosecution). No reasonable inference of bad faith/improper motive could be drawn against Mr. Larkin based on the presumed truth of the pleadings ( CPR 38.03(3)). [ 62 ] I conclude that

section 32 of the Charter likely applies to the Society, [28] however, the breach of

section 15 of the Charter of Rights pleading cannot be said to be tenable and sustainable in relation to any of the defendants. [29] [ 63 ] The pleadings reveal only conclusory statements of “[racial] discrimination”, “racial bias”, racial “stereotypes”, “racialized stigma”, “agreed to allow for or support the systemic discrimination (including stereotypes and marginalization) of the Plaintiff”. [ 64 ] From the pleaded facts, bearing in mind CPR 38.03(3), no reasonable inference of a breach of Mr. Howe’s

section 15 Charter rights could be drawn.

[ 65 ] Mr. Howe has pleaded in support of his claims of discrimination at paragraph 45 of the proposed Amended Statement of Claim, the publicly disseminated “Acknowledgement of systemic discrimination” by the Society on April 14, 2021. [ 66 ] Regarding the nature of the Acknowledgement, I conclude that it: 1. is not a formal admission under CPR 20 (because factual admissions are matters of evidence, and if pleaded, such “evidence” of references to the Acknowledgement should be struck - Coles v. Takata Corporation , 2016 ONSC 4885 , per Perell J., at paragraph 26) - as against all defendants; and 2. could be construed as an “apology” as defined in

section 2 of the Apology Act , SNS 2008, c. 34 , made by the Society, and consequently not admissible against it - see also Symonds v. HRM , [2021] NSHRBID No. 2. [ 67 ] At paragraph 45 of the proposed amended statement of claim, Mr. Howe pleads: On April 14, 2021, the Nova Scotia Barristers Society released an ‘Acknowledgement of systemic discrimination’ on their website. In this Acknowledgement, the Nova Scotia Barristers Society admitted the existence of systemic discrimination within the justice system and the Society.

They stated that by systemic discrimination they mean ‘a system of disproportionate opportunities or disadvantages for people with a common set of characteristics such as race, gender, disability, sexual orientation, and/or socioeconomic status.’ [ 68 ] Since the Acknowledgement was not pleaded as having been made by the individual defendants Mr. Larkin and Ms. Rees, it is immaterial to Mr. Howe’s civil claims against them. [ 69 ] While I appreciate that at paragraph 67 of his Reply brief Mr.

Howe maintains that the Acknowledgement “supports the Plaintiff’s claims of discrimination, differential treatment and malice”, its wording is vague, and, in any event, I conclude one could not infer from it that during Mr. Howe’s suspension and disbarment proceedings, the Society or its agents (including Ms. Rees and Mr. Larkin) discriminated against Mr. Howe as he has baldly alleged in his existing and proposed statement of claim. [30] [ 70 ] The pleaded Acknowledgement is consistent with the publicly accessible full Acknowledgement.

What is significant is that both speak in terms of “systemic discrimination”, which the Society has defined as “a system of disproportionate opportunities or disadvantages for people with a common set of characteristics such as race, gender, disability, sexual orientation, and/or socio-economic status.” [ 71 ] The pleaded Acknowledgement’s ambit is limited to “systemic discrimination,” and is in any event the pleading of “evidence”, therefore an impermissible factual pleading in relation to whether there was individual discrimination against Mr.

Howe during his suspension and disbarment proceedings. [ 72 ] The defendants also rely in their Statements of Defence upon the Limitation of Actions Act . Therefore, I must examine this defence, based only on Mr. Howe’s pleadings. [ 73 ] The limitation period for all the causes of action in Mr. Howe’s original Statement of Claim filed August 31, 2020, is discernible from his original pleadings and had expired long before that filing date (see CPR 13.03(5)). Therefore, the causes of action in the original statement of claim are dismissed as against all defendants.

I wholly set aside his original Statement of Claim per CPR 13.03(2). [31] [ 74 ] Mr. Howe initially relied upon three causes of action: negligence, defamation and malicious prosecution. The defendant’s position is that Mr. Howe was at the very latest fulsomely aware that harm had been caused to him by the defendants and that the claims he made initially and is now making were discoverable by October 20, 2017. It is important to point out that Mr.

Howe did not expressly disagree with the defendants’ position. [ 75 ] I am further satisfied that his original and proposed amended pleadings are not sustainable because they were filed at a point after which each cause of action had been extinguished by a limitation period arising from the LAA - Aucoin v. Venoit , 2013 NSSC 37 , per wood J., as he then was. [ 76 ] Mr. Howe has argued that, even if his filing of his original statement of claim, and his proposed amended statement of claim, is after the expiry of the two-year limitation period, he can rely on the wording and intent of CPR 83.11(3) and

section 22 of the LAA to protect him against the effect of the otherwise expired limitation period. I reject that argument. [ 77 ] Once all the causes of action in his original statement of claim are extinguished by the limitation period, they cannot be relied upon as a springboard to permit him to file even later new claims that also relate to the same defendants, arising out of the same conduct, the same factual matrix, and involving the same core allegations. [ 78 ] Consequently, on the pleadings here, each of the new causes of action claimed by Mr.

Howe are also extinguished, which contributes to my decision to deny leave to amend his pleadings. [ 79 ] I am further satisfied that Mr. Larkin’s arguments in support of his abuse of process claims are persuasive in relation to all the causes of action pleaded as against each of the defendants - except negligence and defamation, which at their core do not involve the alleged racial discrimination and prejudice issues (“unconscionable conduct”), as argued by Mr.

Howe regarding each of his other causes of action, which issues were amply addressed by the Society’s disbarment proceedings, and by the Nova Scotia Court of Appeal. [ 80 ] All three defendants have pleaded in their statements of defence that they rely on various common law and statutory immunity protections. Generally, these defences are only available to defendants if they have acted in good faith.

[ 81 ] All the causes of action (except negligence and defamation) relied upon by Mr. Howe are materially dependent on his claim that his treatment by the defendants during the Society’s administrative processes was driven not by proper/lawful motivations, but rather by improper motivations, and specifically racial discrimination and prejudice against him personally. Mr.

Howe argues racial bias and prejudice as a basis for the essential elements of each of his causes of action (except negligence and defamation), to support his argument that the existence of the bad faith element of those causes of action necessarily negates the (good-faith required) presumptive common law and statutory immunities that the defendants would otherwise be able to rely upon to defend against his claims. [ 82 ] Next, I will briefly consider the circumstances of Ms. Rees and Mr.

Larkin regarding whether the pleadings could permit me to draw inferences in relation to each of them having “a bad faith” motivation in these proceedings. [ 83 ] In relation to Ms. Rees , Mr. Howe pleaded that she “was central to the investigation of the Plaintiff, such that she had a gatekeeping role for the complaints process for the Nova Scotia Barristers Society.

The charges that the Plaintiff faced originated from investigations that were led by Victoria Rees… instructed, directed, retained and received reports from the investigators hired by the Nova Scotia Barristers Society” (paragraph 10, proposed amended statement of claim). [ 84 ] Mr. Howe itemizes what he references as her “racial bias” at paragraphs 15-17 and 43 among others (including the Answers he gave to Demands for Particulars). His primary specific complaint about Ms. Rees is based on her reference to a cultural assessment report created for the Society in relation to Mr.

Howe and authored by Robert Wright. [32] [ 85 ] Mr. Howe specifically references (see also his Answer to Demand for Particulars dated February 18, 2021 at para. 5 and his proposed pleadings at paras. 15-19) an email she sent to two investigators for the Society (lawyers Elizabeth Buckle and Stanley MacDonald, K.C.) wherein Ms.

Rees stated: “[Robert Wright] has developed a new race impact assessment which was used in the criminal justice system twice last year… The purpose is to meet with the member, help them identify and understand their background and cultural issues and the potential impact these have on current behaviour, and how to better cope with this… As Dr. Wright aptly has said, he’s often seen problems when professionals ‘bring the hood’ into practice ”. [My italicization added] [ 86 ] Mr. Howe’s pleadings (existing or proposed) could not permit me to draw inferences therefrom that would be necessary to conclude that Ms.

Rees has acted in bad faith (with malice or for improper purpose(s)/racial discrimination or bias) as against him, and therefore she is not precluded from relying upon the good-faith based statutory and common law immunities argued by the defendants. [ 87 ] Similarly, in relation to Mr. Larkin , Mr. Howe at paragraphs 21 – 25 (among others, and including his Answers to their Demands for Particulars) of his amended statement of claim pleads that on September 1, 2016: Raymond Larkin maliciously misled the complaints investigation committee by indicating [Mr. Howe] was on the record for client DE and that [Mr.

Howe] had a certificate from Legal Aid. Raymond Larkin intended to have his statements mislead the complaints investigation committee into believing that [Mr. Howe] was double booked and missed the court appearance of the client DE.… intention was to wrongfully convince the committee that the suspension of the practising license of [Mr. Howe] was warranted in the circumstances.… was aware that his own statements were not true at the time that he made the misleading statements. For example, prior to making the statements, Raymond Larkin was in possession of materials… that demonstrated that [Mr.

Howe] was not retained, that [Mr. Howe] had no intention of becoming retained for client DE, … [Mr. Howe] did not commit to attending the impugned court appearance. Prior to making the misleading statements, Raymond Larkin was also in possession of materials that demonstrated to him that neither the court, the client DE, the Crown, or anyone else could have reasonably believed that the plaintiff was retained or had any intention to become retained for DE and that the intention of the client was to possibly retain a different lawyer. Raymond Larkin was aware that [Mr.

Howe] had no obligation and was not expected to attend the impugned court appearance for DE, and nonetheless… intentionally misled the complaints investigation committee into believing that [Mr. Howe] was unethical for failing to attend the same appearance . [My underlining added] [33] [ 88 ] In relation to the applicable causes of action, I conclude that from Mr. Howe’s pleadings one could not draw inferences that would be necessary to conclude that Mr. Larkin’s conduct was motivated by racial discrimination and/or racial prejudice towards Mr. Howe.

[ 89 ] Even from paragraphs 21-25 of his proposed amended statement of claim (the alleged intentional misleading of the Complaints Investigation Committee about Mr. Howe’s suggested retention as counsel by client DE (on one occasion only)), assuming those facts are true, one could not draw an inference that Mr.

Larkin was acting in bad faith on and around the time of September 1, 2016 (or that he held or acted upon racially discriminatory beliefs) such that therefore he would be precluded from relying on the good-faith based common law and statutory immunities otherwise available. [34] [ 90 ] I am also satisfied that Mr. Larkin’s arguments are persuasive (except as to negligence, and defamation) that to permit Mr.

Howe’s claims to proceed would be an abuse of process in relation to all causes of action in the original August 31, 2020, statement of claim, as well as the proposed amended statement of claim (insofar as they rely upon Mr. Howe’s claims of racial bias, discrimination, and differential treatment). Those same claims were vigorously and comprehensively advanced by Mr.

Howe before the Society’s Hearing Panel (both the Misconduct hearing and the Sanction hearing), and at the Court of Appeal. [ 91 ] Whether by being a collateral attack on earlier decisions, or res judicata (issue estoppel) considerations, with possibly the exception of his negligence and defamation claims, at the root of Mr. Howe’s civil action are his claims of racial bias, discrimination, and differential treatment. These very issues between the Society and Mr.

Howe during substantially the same time interval, have been exhaustively examined in the administrative law context and a subsequent appeal. [ 92 ] I conclude it would be an abuse of process to allow those same issues to be re-litigated by way of Mr. Howe’s civil action. E - The legal framework governing when amendments to pleadings should be permitted [ 93 ] Mr. Howe requires the permission of this Court to amend his August 31, 2020, pleadings. It is his onus to satisfy the court that his proposed new pleading should be permitted. [35] [ 94 ] CPR 83.11 states:

(1) A judge may give permission to amend a court document at any time.

(2) An amendment cannot be made that has the effect of joining a person is a party who cannot be joined under Rule 35 – Parties, including Rule 35.08(5) about the expiry of the limitation period.

(3) A judge who is satisfied on both of the following may permit an amendment after the expiry of a limitation period, or extended limitation period , applicable to a cause of action:

a) the material facts supporting the cause are pleaded;

b) the amendment merely identifies, or better describes, the cause. [My italicization added] [ 95 ] CPR 38.02 states:

(1) A party must, by the pleading the party files, provide notice to the other party of all claims, defences, or grounds to be raised by the party signing the pleading.

(2) The pleading must be concise, but it must provide information sufficient to accomplish both of the following : (

a) the other party will know the case the party has to meet when preparing for, and participating in, the trial or hearing; (

b) the other party will not be surprised when the party signing the pleading seeks to prove a material fact.

(3) Material facts must be pleaded , but the evidence to prove a material fact must not be pleaded.

(4) A party may plead a point of law, if the material facts that make it applicable are also pleaded. [My italicization added] [ 96 ] CPR 38.03(3) states: A pleading must provide full particulars of a claim alleging unconscionable conduct, such as fraud, fraudulent misrepresentation, misappropriation, or malice . [My italicization added] [ 97 ] CPR 38.08 [requiring particulars in an action] and 38.09 [providing particulars in an action] are both implicated herein. The defendants demanded Mr. Howe provide particulars in support of his claims. He did so. The Answer(

s) became part of the pleadings per CPR 38.09(2)(a). [ 98 ] The jurisprudence establishes that, in exercising the discretion to grant leave (or not) to amend pleadings, a motion judge should be guided by the following general considerations: [36] A . The parameters of the general rule regarding leave of the court to make amendments 42 In considering whether the court should grant leave, there are three aspects to consider: 1. Is there sufficient evidence of bad faith on the part of the Southwest Group of Companies to preclude granting leave to amend? 2.

Is there serious non-compensable prejudice to EllisDon flowing from granting leave to amend? 3. Can it be said that any part of the proposed pleadings are unsustainable or untenable in law such that leave to appeal [sic] should not be granted regarding those amendments? [ 99 ] Firstly, the defendants do not argue that there is bad faith on the part of Mr. Howe. [ 100 ] Secondly, neither do they seriously argue that permitting the amendments will cause them serious non-compensable prejudice. I am satisfied that granting Mr.

Howe leave to amend his pleadings as presently proposed will not cause any of the defendants to suffer material non-compensable prejudice. [37] [ 101 ] My proper focus therefore should be on the third factor. [38] [ 102 ] As Chief Justice Wood stated in EllisDon Corp. v. Southwest Construction, supra : 26 A judge should not permit an amendment to add a claim which discloses no cause of action or where the action is obviously unsustainable. This is the same standard applied on a motion for

summary judgment on pleadings under Rule 13.03. 27 In this case, the motion judge described the proposed pleading as "not elegant" and the respondent readily concedes that point. The fact that a proposed pleading sets out allegations which are poorly described or lacking in particulars is not fatal to the amendment motion. The issue is whether the pleading is obviously unsustainable. [ 103 ] Chief Justice Wood’s reference to CPR 13.03 brings my attention to that Rule. [39] The Rule reads: 13.01 Scope of Rule 13

(1) This Rule is for

summary judgment on evidence in an action and

summary judgment on pleadings in an action or an application.

(2) This Rule is not for economical disposal of a claim or defence that may have some merit, to be determined through assessment of credibility or otherwise, which purpose may be served by any of the following: (

a) provisions of Rule 4 - Action for early assignment of trial dates; (

b) provisions of Rule 5 - Application for an application in court and Rule 6 - Choosing Between Action and Application; (

c) Part 4 - Alternative Resolution or Determination, except Rule 13 -

Summary Judgment; (

d) Part 12 - Actions Under $150,000.

(3) This Rule is not for disposal of frivolous, vexatious, scandalous, or otherwise abusive pleadings, which purpose is served by Rule 88 - Abuse of Process . 13.02

Interpretation In this Rule 13, “statement of claim” includes all or part of a statement of claim, statement of claim against third or subsequent party, statement of counterclaim, and statement of crossclaim, and the grounds in a notice of application and in a notice of respondent's claim, and “statement of defence” includes all or part of a statement of defence and the grounds in a notice of contest in answer to a statement of claim. 13.03

Summary judgment on pleadings

(1) A judge must set aside a statement of claim , or a statement of defence, that is deficient in any of the following ways: (

a) it discloses no cause of action or basis for a defence or contest; (

b) it makes a claim based on a cause of action in the exclusive jurisdiction of another court or tribunal; (

c) it otherwise makes a claim , or sets up a defence or ground of contest, that is clearly unsustainable when the pleading is read on its own .

(2) The judge must grant

summary judgment of one of the following kinds, when a pleading is set aside in the following circumstances: (

a) judgment for the party making a claim, when the statement of defence is set aside wholly; (

b) dismissal of the proceeding, when the statement of claim is set aside wholly ; (

c) allowance of a claim, when all parts of the statement of defence pertaining to the claim are set aside; (

d) dismissal of a claim, when all parts of the statement of claim that pertain to the claim are set aside.

(3) A motion for

summary judgment on the pleadings must be determined only on the pleadings, and no affidavit may be filed in support of or opposition to the motion.

(4) A judge who hears a motion for

summary judgment on pleadings may adjourn the motion until after the judge hears a motion for an amendment to the pleadings.

(5) A judge who hears a motion for

summary judgment on pleadings, and who is satisfied on both of the following, may determine a question of law: (

a) the allegations of material fact in the pleadings sought to be set aside provide, if assumed to be true, the entire facts necessary for the determination; (

b) the outcome of the motion depends entirely on the answer to the question.

F - What does it mean when one speaks of pleadings as being “untenable” or “unsustainable”, such that leave to amend should not be granted regarding the amendments? [ 104 ] Pleadings can be unsustainable or untenable in law based on various forms of legal objections. [ 105 ] Let me first briefly address whether there is any significant difference whether one speaks in terms of pleadings being “untenable” and “unsustainable”? [ 106 ] In the Random House Dictionary of the English Language , Unabridged Edition (Toronto: Random House, 1966), they are defined as follows: Unsustainable – not sustainable ; not to be supported, maintained, upheld, or corroborated Untenable – incapable of being defended , as an argument, thesis etc.; indefensible. [ 107 ] To my mind, there is value in examining the etymology of each word.

I had available to me and have referred to An Etymological Dictionary of Modern English , by Ernest Weekley (London: John Murray, 1921). Therein we find, neither term in the negative form, but we do find them in the positive form: Sustain[able] – Old French sostenir [from the Latin sustenire] to hold Tenable – French from tenir,..to hold [ 108 ] The two words seem at their root to be synonyms, although their more recent precise usage in the law implies there is a nuanced difference. I suggest the following: 1.

A claim that discloses no cause of action on the face of the pleadings is “untenable”- CPR 13.01(a) [40] ; 2. A claim that is “tenable” (it discloses a cause of action on the face of the pleadings) can become unsustainable when it is more closely examined - CPR 13.01(c). [41] [ 109 ] The defendants herein claim that the pleadings are untenable or unsustainable for the following reasons: [42] 1.

The “pleadings” (i.e. pleadings and Answers to the Demand for Particulars together) either do not plead causes of action that exist in law or sufficient material facts to establish each of the elements of the causes of action pleaded, and therefore leave to amend should be denied. [43]

2. There are various legal impediments or bars which lead to the pleadings necessarily being doomed to failure: a. a limitation period precludes the causes of action; b. the NSBS, Mr. Larkin and Ms.

Rees are protected by statutory immunity pursuant to s. 81 of the Legal Profession Act,SNS 2004, c. 28, as amended by SNS 2010, c. 56 [provided the “act or failure to act, or any proceeding initiated or taken, or anythingdone or not done, is done in good faith while acting or purporting to act on behalf of the Society in the carrying out of the duties orobligations under the Act; or for any decision, order or resolution made or enforced in good faith under this Act”]; c. the NSBS is protected by common law immunity for quasi-judicial exercises of discretion (including allegedassociated negligence) provided the Society and those acting on its behalf acted in good faith - Edwards v.

Law Society of UpperCanada, 2001 SCC 80; (see more recently Finney v. Barreau du Quebec, 2004 SCC 36 , [2004] 2 SCR 17;[44] and Ouellette v.Law Society of Alberta, 2019 ABQB 492, per Phillips, J. at para. 4); and because at common law, there is no private law duty of careowed to individual members of the legal profession – the Society’s role and duty is to protect the public; d. that Ms. Rees is entitled to rely on common law witness immunity when she testified at NSBS proceedings; e. that Mr.

Larkin is entitled to rely on common law lawyer/advocate privilege immunity against defamation (and other)claims when acting in that role (provided he acted in good faith) per Hill v. Church of Scientology of Toronto, (SCC),[1995] 2 SCR 1130, at paras. 143 – 156; although in different circumstances, more recently see Groia v. Law Society of Upper Canada,2018 SCC 27; f. that the amendments should not be permitted because they would be an abuse of process as envisaged by CPR 88, includingbased on arguments that the pleadings are res judicata (see Hoque v.

Montreat Trust Co, of Canada, 1997 NSCA 153, at paras. 20-65,per Cromwell, J.A. (as he then was) - subject to issue estoppel; and contrary to the rule against collateral attacks (see for example, theapplication of Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, in Skrypichako v. Law Society of Alberta, 2020 ABQB 461, atparas. 60-68, per ACJ John Rooke). These arguments arise in part from the following:[45] i. Mr.

Howe’s decision not to avail himself of the opportunity to request ameeting with the Complaints Investigation Committee regarding his interim suspension, or to appeal a question of law at the time of hisinterim suspension from practice, to the Court of Appeal, both pursuant to

section 37 of the Legal Profession Act; ii. Mr. Howe’s unsuccessful appeal of the Society’s decision to disbar him: 2019NSCA 81 (leave to appeal denied by Supreme Court of Canada). That comprehensive decision dealt with the substance of the issuesraised in his present pleadings filed August 31, 2020, as well as his proposed amended pleadings; iii. Mr. Howe’s unsuccessful motion to have an earlier Consent Dismissal Order ofhis motion for judicial review set aside before Justice Campbell (Howe v. Nova Scotia Barristers’ Society, 2020 NSSC 229); and iv. Mr.

Howe’s failure to fully engage the processes afforded by the Nova ScotiaHuman Rights Commission in relation to his claims of discrimination based on race.[46] G – Does Mr.

Howe plead causes of action that exist in law, anddoes he allege sufficient material facts to establish each of theelements of the causes of action pleaded against each of thethree defendants, namely: negligence; defamation (only pleadedas against the Society) malicious prosecution; civil conspiracy;public malfeasance; individual and systemic racialdiscrimination; “unlawful harm”?[47] [110] I will state the essential elements of each claimed cause of action and review the pleadings to assess whether material facts insupport of those elements are pleaded, and such cause of action exists in law.[48] [111] The test was described as: whether the pleadings “disclose a reasonable cause of action i.e. a cause of action ‘with some chanceof success’ … or …is it ‘plain and obvious that the action cannot succeed’?” per Wilson, J. in Operation Dismantle v.

The Queen, (SCC), [1985] 1 S.C.R. 441, at para. 94 (Dickson, J. at para. 8); see also Justice Fichaud’s reasons in Nova Scotia (AttorneyGeneral) v. Carvery, 2016 NSCA 21, at para. 24. [112] Notably in recent cases, a slightly different wording has emerged regarding when a pleading discloses “no reasonable cause ofaction” (see Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, at paras. 14 (majority) and 90 (minority) reasons): “Simply stated, ifa claim has no reasonable prospect of success it should not be allowed to proceed to trial (R. v.

Imperial Tobacco Canada Ltd., 2011SCC 42 , [2011] 3 SCR 45, at para. 17.)”; and “Where a reasonable prospect of success exists, the matter should be allowedto proceed to trial”. (see also PMC York Properties Inc. v. Siudak, 2022 ONCA 635).

[113] “… This is a high standard that applies to determinations of fact, law, and mixed fact and law.” (para. 87 – Babstock) - However,although “conclusions of law may be pleaded: see Famous Players Canadian Corp. v. J.J. Turner and Sons Ltd., [1948] O.W.N. 221,per Gale J., at paras. 221-22, they do not form part of the factual allegations which must be taken as proved for purposes of a motion tostrike”: Operation Dismantle, per Wilson J., at p. 492. Notably however, Gale J. added in his reasons at para. 3, [1948] O.J.

No. 69: “Provided that [legal] conclusion is adequately supported by a statement of facts which are material to that result.” [114] “Material facts” have been comprehensively commented upon by Justice Bodurtha in his reasons in Layes v. Bowes, 2019 NSSC298, at paragraphs 9-19:[49] [9] In Williston and Rolls, The Law of Civil Procedure (1970) at p. 647 the authors state: It is an elementary rule in pleading that when a state of fact is relied on, it is enough to allege it simply without setting forth thesubordinate facts which are the means of proving it or the evidence to sustain the allegation.

While generally any fact which maybe given in evidence may be pleaded, the pleading of a fact which is only relevant insofar as it tends to prove a material allegationis in the nature of pleading evidence and will be struck out. [10] Rule 38(2) and (3) inform us that pleadings must be concise but provide enough information to the other side of the nature ofthe proceedings, and when the party signing the pleading seeks to prove a material fact, the other side will not be surprised. Theinclusion of evidence ignores the distinction between material facts and evidence. … [13] The pleading of evidence is prohibited.

The rule is meant to restrict the pleading of facts that are subordinate and that merelytend to prove the truth of the substantial facts in issue (see Rare Charitable Research Reserve v Chaplain

(2009) OJ No 3893 (Ont. S.C.)). [14] What is patently obvious after hearing the submissions of the parties is the difference between pleading material facts andpleading evidence is a difference in degree and not in kind (see Toronto (City) v MFP Financial Services Ltd (2005), OJ No 3214(Ont. Master)). [15] The Plaintiff relies on the case of Robertson v. Jacques Whitford Environment Ltd., 2004 BCSC 1424, at para. 20, for thedistinction between material facts and evidence but also for a more liberal

interpretation of pleading evidence. The Court quotes the following passage from MacLachlin and Taylor’s British Columbia Practice, 2nd ed.: The distinction between material facts and evidence is essentially one of degree. A material fact is a fact that of itself is necessary toestablish a legal proposition and without which the cause of action is incomplete. Evidence includes those facts necessary toestablish the material facts.

It is a safe practice, if in doubt to plead a matter as the risk of having an order go to strike out a portion ofone’s pleadings as being evidence is remote, and the consequences of such an order are slight (costs), while the consequences of havingomitted to plead a material fact might be to have one’s pleadings struck out or claim dismissed for failing to state a cause of action ordefence. [16] A similar point was made in Toronto (City) v. MFP Financial Services Ltd., 2005 CarswellOnt 3324, [2005] O.J.

No. 3214,[2005] O.T.C. 672, 141 A.C.W.S. (3d) 254, 17 C.P.C. (6th) 338 but the court also discusses how the answer to acceptable pleadingscan be found by revisiting first principles such as fairness, judicial economy and the exposition of truth at paras 15-16: 15 The distinction between material facts, particulars and evidence is not a bright line and there will be situations in which the levelof detail required to provide adequate particulars sets out material facts that might also be regarded as evidence. Furthermore, pleadingsmotions should not be approached in an overly technical manner.

Generally speaking, a party should be at liberty to craft a pleadingin the manner it chooses providing the rules of pleading are not violently offended and there is no prejudice to the other side.(see Toronto (City) v. British American Oil Co. (1948), (ON CA), [1949] O.R. 143 (Ont. C.A.) and Abdi Jama(Litigation Guardian of) v. McDonald's Restaurants of Canada Ltd., [2001] O.J. No. 1068 (Ont. S.C.J.) 16 The answer to acceptable pleading may often be found by revisiting first principles.

Our rules of pleading are intended to define andlimit the issues in order to promote fairness, judicial economy and exposition of the truth. This must be done so that the courtunderstands the dispute and the parties have fair notice of the case to be met and the remedies to be sought. Pleadings areimportant because they are the foundational documents on which the case rests and will shape the scope of relevance for bothdiscovery and trial.

It must be remembered however that the question for today is not whether similar fact evidence will be admitted attrial but whether or not the allegations appearing above should be added to the statement of claim.

i) Negligence[50] [115] The essential elements of the tort of negligent [police] investigation were described by the court in Hill v. Hamilton-WentworthPolice Services Board, 2007 SCC 41. In

summary, the court concluded: A prima facie duty of care is owed if the relationship between two persons is sufficiently proximate that it is reasonablyforeseeable that the actions of one may directly affect the other. In the relationship between the police and a particular suspectbeing investigated, the requirement of reasonable foreseeability is clearly made out and poses no barrier to finding a duty of care;clearly negligent police investigation of a suspect may cause harm to the suspect.

Other considerations in the proximity analysis include the close and direct relationship between the police and a suspect identifiedfor investigation, and the suspect's critical personal interest in the conduct of an investigation.

The interests at stake support a finding of a proximate relationship giving rise to a prima facie duty of care, and other torts do not provide an adequate remedy for negligent police acts. The personal interest of the suspect in the conduct of the investigation is enhanced by a public interest. Moreover, a duty of care by police officers to suspects under investigation is consistent with the values and spirit underlying the Charter . The relationship between a police officer and a particular suspect is close enough to support a prima facie duty of care. This duty is not negated by any compelling policy reasons .

The quasi-judicial nature of police duties does not require officers to make judgments as to legal guilt or innocence, or to evaluate evidence according to legal standards. The discretion inherent in police work fails to provide a convincing reason to negate the proposed duty of care. Police are not unlike other professionals who exercise discretion in their work, but who are subject to a duty of care in tort.

Recognizing such a duty of care does not raise the standard required of the police from reasonable and probable grounds to some higher standard; nor would it have a chilling effect on policy by causing police officers to take an unduly defensive approach to the investigation of criminal activity. The record does not support the conclusion that there would be a flood of litigation against the police if a duty of care were recognized.

Finally, there are safeguards against the possibility that investigated persons who were acquitted of a crime, but who were in fact guilty, might recover against an officer for negligent investigation . The appropriate standard of care for the tort of negligent investigation is that of the reasonable police officer in like circumstances . This provides a flexible overarching standard that covers all aspects of investigatory police work and is reinforced by the nature and importance of police investigations .

The standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation . The particular conduct required is informed by the stage of the investigation and applicable legal considerations. Police officers may make minor errors or errors in judgment without breaching the standard of care . [My bolding added] [ 116 ] Justice Beveridge, on behalf of the court in R. v.

Gardner and Fraser , 2021 NSCA 52 , succinctly described the duty, albeit in the context of a criminal prosecution: 6 The common law imposes a duty on everyone to use the care of a reasonably prudent individual where a failure to do so will foreseeably cause harm to another. If that duty is breached and harm results, the person harmed can sue to be put back in the same position, as far as money damages can, as they were before the harm. [ 117 ] While these principles have general application, [51] the defendants in the present motion argue that Mr.

Howe’s negligence claims are untenable and unsustainable. [ 118 ] Mr. Howe’s claims of negligence are in relation to the defendants’ “investigation” of him. [ 119 ] In Mr. Howe’s original statement of claim, his pleadings allege negligence against all three defendants; and negligence against Ms. Rees and Mr. Larkin in his Answer to their Demand for particulars. He reiterates those claims against Ms. Rees, Mr. Larkin, and the Society “as an entity”, in his Answer to the Society’s Demand for particulars. [ 120 ] In Mr. Howe’s proposed amended statement of claim, he claims negligence only against Ms.

Rees and the Society (at paragraphs 2 and 3). He has struck the negligence claim in paragraph 3 against Mr. Larkin, but it reappears in paragraph 5. He notes in his March 4, 2022, brief at para. 59: “it is our position that Mr. Larkin (as well as Ms. Rees and the Society) were negligent in their ‘operational’ decisions in addition to the fact that their actions were not done in good faith. As such the immunity clause would not prevent the defendants from being liable for their negligent actions”. [ 121 ] As I understand his position, Mr. Howe claims against all three defendants in negligence.

His pleadings disclose multiple paragraphs containing generalized allegations and conclusions (for example, see also Mr. Howe’s Answer to Demand for particulars filed February 18, 2021, paragraph 1). He states that “Ms. Rees was negligent in that she failed to meet her professional, fiduciary and other duties with respect to her position as Director of Professional Responsibility. The particulars include but are not limited to the following…”. [ 122 ]

Section 81 of the Legal Profession Act reads:

(1) No action for damages lies against the Society, the Council, members of the Council, committees of the Society, persons serving as members of committees of the Society, the Executive Director or officers, agents or employees of the Society

(

a) for any act or failure to act, or any proceeding initiated or taken, or anything done or not done, in good faith while acting or purporting to act on behalf of the Society in carrying out the duties or obligations under this Act; or (

b) for any decision, order or resolution made or enforced in good faith under this Act;

(2) No action lies against any person for the disclosure of any information or any document or anything therein pursuant to this Act unless such disclosure was made in bad faith . (2A) No action for damages lies against any person for making a complaint to the Society in good faith about a member of the Society. [ 123 ] The upshot is that, absent a pleaded allegation of bad faith, the Nova Scotia Barristers Society, and those acting on its behalf, are protected by common law judicial or quasi-judicial decision-maker immunity, and by the statutory immunity in

section 81 of the Legal Profession Act . [ 124 ] I conclude that the negligence pleadings are not tenable, in the sense that a generous reading thereof could not establish the essential elements of the tort of negligent investigation, especially in relation to the alleged breach of the duty to reasonably prudently investigate. [52] [ 125 ] Later, I will more fully deal with the bars to this cause of action, which undermine its sustainability. ii) Malicious Prosecution [ 126 ] The essential elements of this tort are: [53] 1. the proceeding must have been initiated by the defendant; 2. the proceeding must have been terminated in favour of the plaintiff; 3. there is an absence of reasonable and probable cause which is required to initiate the proceeding; [54] 4. there is malice, or a primary purpose other than that of carrying the law into effect. [55] [ 127 ] I will next review the original and proposed amended statement of claim/Answer to Demand for Particulars on malicious prosecution, regarding each of the defendants [56] Raymond Larkin, K.C. and Victoria Rees, K.C. [57] [ 128 ] The significant parts of the pleadings state: (para. 6) “The Plaintiff pleads that the defendants… maliciously prosecuted the Plaintiff by their motives and conduct in making an ex parte application to have the Plaintiff’s ability to practice law suspended and in the dishonest manner in which they conducted the hearing… (para. 10) Victoria Rees was the Director of Professional Responsibility for all of the time period spanning the investigations of the Plaintiff’s legal practice and prosecution regarding the same.… (para. 14) Victoria Rees expressed racial bias toward the Plaintiff during the investigations into his practice. (paras. 17-19) Victoria Rees acted in a conflict of interest and influenced the Nova Scotia Barristers Society investigations and malicious prosecution of the Plaintiff’s legal practice based on her conflict of interest as well as racial bias expressed toward the Plaintiff.

The Plaintiff was charged by the Nova Scotia Barristers Society in 2015 for allegations of breaching the Code of Conduct which proceeded to hearing.

The Hearing for the 2015 charges was held from 2015 to 2017 over which time the Plaintiff repeatedly highlighted Victoria Rees conflict of interest and racial bias that maliciously influenced the investigation into his practice and his ongoing prosecution, and breaching their duty of care two the Plaintiff. (para. 20) The Nova Scotia Barristers Society hired Raymond Larkin in 2016 to make an application to have the Plaintiff suspended at an ex parte hearing with the allegation that the Plaintiff was breaching his practice restrictions imposed by the Complaints Investigation Committee of the Nova Scotia Barristers Society. (para. 21) On September 1, 2016, during an ex parte hearing, Raymond Larkin maliciously misled the Complaints Investigation

Committee by indicating the Plaintiff was on the record for client DE and that the Plaintiff had a certificate from Legal Aid. … (para. 34) On September 1, 2016, the Plaintiff was suspended from practising law as a result of the Complaints Investigation Committee of the Nova Scotia Barristers Society making a finding that the Plaintiff should be suspended after hearing submissions by Raymond Larkin on behalf of the Nova Scotia Barristers Society. (para. 35) After the Plaintiff’s suspension from practising law on September 1, 2016, he provided written communications to the Nova Scotia Barristers Society highlighting the malicious misleading statements by Raymond Larkin and that the allegations of the Plaintiff breaching his practice restrictions being meritless and warranted no probable cause to justify the actions of Mr.

Larkin, Ms. Rees or the Nova Scotia Barristers Society. … (para. 40) Victoria Rees acted maliciously toward the Plaintiff in her role as Director of Professional Responsibility of the Nova Scotia Barristers Society. (para. 41)… Raymond Larkin’s investigation was motivated and otherwise influenced by his desire to further the interests of Victoria Rees. Raymond Larkin was influenced by the bias held and expressed by Ms.

Rees against the Plaintiff to act maliciously against the Plaintiff… (para. 51) The charges relating to the allegations resulting in the Plaintiff’s suspension from practicing law as of September 1, 2016, were withdrawn by the Complaints Investigation Committee on July 24, 2020, without a hearing.” [ 129 ] The significant parts of Ms. Rees’ Demand for Particulars were answered by Mr. Howe on February 18, 2021, at pages 4-6, and particulars of the alleged racial bias and conflict of interest follow from pages 6-8. [ 130 ] The significant parts of Mr. Larkin’s Demand for Particulars were answered by Mr.

Howe on February 18, 2021, at pages 9-10 (confirming that Mr. Howe’s allegations of malicious prosecution are related to specifically paragraphs 18-21 of the original statement of claim filed August 31, 2020 – although, as noted, those allegations have been expanded in the proposed amended statement of claim). [ 131 ] On the malicious prosecution claim, bearing in mind CPR 38.03(3), I conclude that the pleadings: 1. do not claim that Mr. Larkin initiated any proceedings against Mr. Howe; [58] 2. do not claim that the proceedings were “terminated in favour of” Mr.

Howe (not for the overall disciplinary process, or for the interim suspension resulting after Mr. Larkin’s involvement on September 1, 2016) – paragraphs 22/36 and 26/51 of the original and proposed amended statement of claim read almost identically: [59] The Plaintiff is not aware of any action taken by the Nova Scotia Barristers Soc

[…]