Ali Solgi Appellant (Plaintiff) v. College of Physicians and Surgeons, 2022 SKCA 96

Court of Appeal for Saskatchewan Docket: CACV3953 Citation: Solgi v College of Physicians and Surgeons of Saskatchewan , 2022 SKCA 96 Date: 2022-09-01 Between: Ali Solgi Appellant (Plaintiff) And College of Physicians and Surgeons of Saskatchewan, Council of the College of Physicians and Surgeons of Saskatchewan and Dr. Karen Shaw Respondents (Defendants) Before: Leurer, Barrington-Foote and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr. Justice Barrington-Foote The Honourable Mr.

Justice Kalmakoff On appeal from: QBG 150 of 2021, Saskatoon Appeal heard: April 11, 2022 Counsel: Ali Solgi on his own behalf Lauren Wihak and Morgan Boutin for the Respondents Leurer J.A. I. INTRODUCTION [ 1 ] Dr. Ali Solgi appeals from an order of a Court of Queen’s Bench judge sitting in Chambers which dismissed his claim against the College of Physicians and Surgeons of Saskatchewan [College], the Council of the College and Dr.

Karen Shaw [defendants]: Solgi v College of Physicians and Surgeons of Saskatchewan (23 December 2021) Saskatoon, QBG 150 of 2021 (Sask) [ Chambers Decision ]. [ 2 ] The Chambers Decision was based on Dr. Solgi’s claim being “scandalous, frivolous or vexatious”, contrary to Rule 7-9(2)(

b) of The Queen’s Bench Rules [ Rules ], and “otherwise an abuse of process of the Court”, contrary to Rule 7-9(2)(e). [ 3 ] I have concluded that Dr. Solgi’s appeal must be allowed. My reasons follow. II. BACKGROUND A. Dealings between the College and Dr. Solgi [ 4 ] The College is a statutory body, continued pursuant to s. 3 of The Medical Profession Act, 1981 , SS 1980-81, c M-10.1 [ MPA ]. It is responsible for licensing and regulating medical practitioners in Saskatchewan. Under the MPA , certain powers given to the College have been delegated to its registrar. [ 5 ] Dr.

Solgi is a family physician trained outside of Canada. At the heart of this appeal lie decisions, taken by the College, its council and its registrar, Dr. Shaw, in relation to Dr. Solgi’s licensure as a family physician. [ 6 ] In January of 2015, Dr. Solgi obtained the ability to participate in the Saskatchewan International Physician Practice Assessment program. That program was established by the Government of Saskatchewan as a gateway for the assessment of internationally trained family physicians. Dr.

Solgi completed an initial assessment under that program and was granted a provisional licence, subject to the requirement that he practice under supervision of a named physician approved by the College until he achieved regular licensure. As described in an affidavit filed by the College, licensure under this process would require Dr. Solgi to be “successful in a summative assessment, being a final assessment after the mandatory period of supervision based upon a number of factors, including a review of patient charts, information from other physicians, and information from patients”. [ 7 ] Dr.

Solgi began his supervised practice at a clinic in Swift Current in January of 2016. In later years, he would continue his practice at other locations in Saskatchewan. The summative assessment of Dr. Solgi began in January of 2019. It has not yet been concluded. [ 8 ] The summative assessment process is not the only way that a physician can achieve regular licensure as a family physician.

Another way involves certification by the College of Family Physicians of Canada [CCFP certification] and the passing of an examination. [ 9 ] In 2018, the College’s bylaws were amended in a way that affected a physician’s ability to achieve regular licensure through the summative assessment process. The College’s position is that the net bottom line effect of these amendments is that a candidate who has obtained CCFP certification is no longer eligible to achieve regular licensure by meeting the conditions associated with a summative assessment.

[ 10 ] On June 24, 2019, Dr. Solgi advised the College that he had successfully obtained CCFP certification. On June 26, 2019, the College advised Dr. Solgi that he was longer eligible for licensure by the summative assessment route but was instead now on the exam pathway to licensure. He would also still be expected to practice under supervision until achieving a regular licensure. [ 11 ] Following this, correspondence passed between the College and Dr. Solgi. According to Dr. Shaw, the College took Dr.

Solgi’s correspondence to indicate that he was not practicing under supervision, as is required under his provisional licence, and that he may have been working as a physician in another province. In a November 13, 2019, letter to Dr. Solgi, Dr. Shaw advised that the College’s “information is that [he was] not currently practising under supervision”. She offered Dr. Solgi an opportunity to address this issue and whether she should act under the College’s bylaws to suspend his ability to practice medicine in Saskatchewan. [ 12 ] A meeting was held between representatives of the College and Dr.

Solgi’s legal counsel. As well, Dr. Solgi wrote to the College. The upshot of these communications was that Dr. Solgi confirmed that he was no longer practising medicine in Saskatchewan. He also confirmed that he held a provisional licence to practice medicine in British Columbia that required him to practice under the supervision of another doctor. Finally, Dr. Solgi indicated that he intended to seek licensure in Saskatchewan. [ 13 ] On March 18, 2020, Dr.

Solgi wrote to the College to inquire about the requirements he would need to meet to enable him to provide telemedicine services to Saskatchewan patients during the COVID-19 pandemic. [ 14 ] On March 23, 2020, Dr. Shaw advised Dr. Solgi that, because he had not been practicing under the supervision of a supervisor approved by the College, his “provisional licence with conditions has been immediately suspended”. [ 15 ] On November 13, 2020, Dr. Solgi appealed to the College’s council from Dr. Shaw’s decision to suspend his provisional licence.

According to the defendants’ statement of defence, “the Council reviewed the decision in November 2020 at a regular Council Meeting”. Written reasons by the Council dismissing Dr. Solgi’s appeal are stated to have been “Accepted by the Council” of the College on January 23, 2021. B. The litigation [ 16 ] Dr. Solgi commenced his action against the College, its council and Dr. Shaw on February 10, 2021. His statement of claim contains a detailed narrative of events, from his perspective. Although I find it difficult to precisely discern all of Dr.

Solgi’s complaints, it appears that the statement of claim contains allegations that generally call into question three sets of actions by the defendants. [ 17 ] First, Dr. Solgi complains about how the summative assessment procedure was administered. Although none of this is clearly expressed, I take these allegations to include assertions that the defendants improperly, and in bad faith, used their regulatory powers for the purposes of pursuing government objectives of securing compulsory and unpaid services by family physicians. [ 18 ] Second, Dr. Solgi complains about the changes to the College’s bylaws.

As I have explained, because of these changes, and the fact that he had achieved CCFP certification, the College’s position is that Dr. Solgi is no longer eligible for licensure by following the summative assessment route. The statement of claim includes assertions that would appear to call into question the process leading to the enactment of these bylaws. I also gather that Dr. Solgi has a complaint about their substance, so far as they change the criteria by which he can achieve the status of a registrant not subject to conditions of practice. [ 19 ] Third, Dr.

Solgi asserts that the decisions leading to the suspension of his licence were made in bad faith and for an improper purpose. He specifically alleges that the decision to suspend his licence in March of 2020 was done to defeat his request that he be approved to provide telemedicine services in response to the COVID-19 pandemic. [ 20 ] Overarching all of these claims are allegations that are specific to Dr. Shaw. These include assertions that she made decisions to secure personal commercial benefits because of her association with one of the medical clinics where Dr.

Solgi worked for a time, and that she was in a conflict of interest because of positions she held with the Medical Council of Canada. [ 21 ] The statement of claim seeks, as relief, an order “to reinstate the license to practice of the plaintiff and order to remove the restrictions on the license to practice of the plaintiff”. It also asks for damages of various types and for an award of costs. [ 22 ] The defendants filed a statement of defence. After narrating the facts from their perspective, their defence responds to the three general areas of complaint that I have identified.

Overarching their replies are two main contentions. The first is that the decisions relating to Dr. Solgi’s medical licensure were dealt with in accordance with the College’s bylaws and the MPA . The second is that, throughout these events, the College, its council and Dr. Shaw were acting in good faith. In this regard, they assert that s. 60 of the MPA provides a defence to them. That provision states as follows: Protection of college, etc. 60

(1) No action lies against the college, the registrar or any employee of the college, the council or any committee appointed by the council or any member of the council or of any such committee for any act done, proceeding taken or judgment given or enforced in good faith under any provision of this or any other Act or by the bylaws, rules, orders or proceedings of the council under this Act. [ 23 ] The defendants applied for an order striking the entirety of Dr.

Solgi’s statement of claim or, alternatively, an order for security for costs and a stay of the statement of claim until that security was provided. [ 24 ] Their notice of application stated that the order striking the statement of claim was sought on three separate bases.

The first was that the statement of claim “does not disclose a reasonable cause of action, does not disclose a genuine cause of action, and/or fails to notify the applicants of the case they have to meet”. [ 25 ] Second, it was asserted that the statement of claim relies on allegations “for which there are appeal and judicial review mechanisms set in place by the legislature within the [ MPA ]”. It was said that the inclusion of these allegations in the statement of claim

“constitutes a general abuse of process and a collateral attack”. [ 26 ] Third, it was advanced that the statement of claim “goes beyond material facts necessary to advance the Claim”. It was said that the inclusion of these allegations “is likely to unduly delay adjudication of the dispute between the parties”. C. The Chambers Decision [ 27 ] The Chambers judge began by addressing certain evidentiary issues. He then identified the two requests for relief that were before him.

With this foundation having been laid, the Chambers judge turned to the question as to whether the statement of claim should be struck. [ 28 ] The Chambers judge first considered whether the statement of claim disclosed a reasonable cause of action, as required by Rule 7-9(2)(a). He observed that he “must assume under this portion of the Rule that all of the allegations of fact contained in the impugned [pleading] are true” (at para 31).

He also noted that the jurisprudence directed that “only the pleadings (in this instance the statement of claim) and any document referred to in the statement of claim upon which the plaintiff relies to establish his case can be considered” (at para 32). [ 29 ] The defendants’ notice of application referred to two specific reasons why it said the statement of claim did not disclose a reasonable cause of action.

The first was that it did “not identify facts against the [defendants] that amount to, or support the alleged acts of bad faith or contravention to [ sic ] the College of Physicians and Surgeons of Saskatchewan Regulatory Bylaws or the [ MPA ]”. The second was that Dr. Solgi’s claim “is barred by the provisions of

Section 60 of the [ MPA ]”. [ 30 ] The Chambers judge dismissed the defendants’ argument that s. 60 of the MPA provided a sufficient basis to strike the statement of claim as disclosing no reasonable claim, stating as follows: [33] Were Rule 7-9(2)(

a) amenable to consider material other than what I have noted (i.e., the affidavit of Dr. Shaw), my analysis on this issue might well be different. However, it is clear to me (whether or not it is objectively true) that the plaintiff alleges that the statement of claim must be taken as true in alleging bad faith or malice. Accordingly, the statutory immunity found in s. 60 of The Medical Profession Act, 1981 , in theory, would be overridden. [ 31 ] The Chambers judge then found that the statement of claim “in various ways alleges bad faith on the part of the [defendants]” (at para 35).

Accordingly, he held that he was “unable to find a basis on which to strike the plaintiff’s statement of claim under Rule 7- 9(2)(a)” (at para 36). [ 32 ] Following this, the Chambers judge turned to the request to strike the statement of claim under Rule 7-9(2)(b), as being scandalous, frivolous or vexatious, and Rule 7-9(2)(e), as being an abuse of the court’s processes. He concluded that the claim should be struck on this basis.

I will review this part of the Chambers Decision later in these reasons. [ 33 ] The Chambers judge refused to strike the claim on the basis that it was immaterial, redundant or unnecessarily lengthy, contrary to Rule 7-9(2)(c). In making this finding he stated that he was “mindful of the fact that Dr.

Solgi is self-represented and has done his best to advance what he believes his claim to be in a manner which adequately sets forth the backdrop and the context of his dispute with the defendants” (at para 52). [ 34 ] Finally, the Chambers judge stated that, because he was ordering that the statement of claim be struck, it was not necessary for him to consider the defendants’ request for an order for security for costs. III. ISSUES [ 35 ] Although Dr. Solgi has raised other issues, the outcome of his appeal is determined by the answer to two questions: (

a) Did the Chambers judge err in concluding that the allegations against the defendants were “scandalous, frivolous and/or vexatious”? (

b) Did the Chambers judge err in concluding that the statement of claim was an abuse of process because it was a collateral attack? IV. ANALYSIS [ 36 ] Before entering into a consideration of the issues in this appeal, I re-emphasize that the Chambers judge found that the statement of claim discloses a reasonable cause of action.

No appeal has been taken by the defendants from that aspect of the Chambers Decision and no attempt was made by the defendants to uphold the striking of the claim because it did not (contrary to the Chambers judge’s ruling) disclose a cause of action. [ 37 ] Counsel for the defendants conceded that this Court should proceed on the understanding that the cause of action alleged in the statement of claim is for abuse of public office. Misfeasance in public office is “an intentional tort whose distinguishing elements are twofold: (

i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff” ( Odhavji Estate v Woodhouse , 2003 SCC 69 at para 32 , [2003] 3 SCR 263 [ Odhavji ]. [ 38 ] In Odhavji , the Supreme Court of Canada endorsed the view that this tort can be committed in one of two ways. The first, which the Court called “Category A”, involves “conduct that is specifically intended to injure a person or class of persons” (at para 22). In Category A, “the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each

ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improperpurpose, such as deliberately harming a member of the public” (at para 23). Category B involves “a public officer who acts withknowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff” (at para 22). In thiscase, while the Chambers judge did not give detailed reasons for his conclusion that the statement of claim disclosed a reasonable cause ofaction, I understand him to have found that Dr.

Solgi is alleging a cause of action that falls within Category A, as described in Odhavji. [39] All of this means that any analysis of the issues in this appeal must proceed on the basis that the statement of claim alleges thatthe defendants acted in the exercise of their public functions for the express purpose of harming Dr. Solgi.

Such alleged actionssimultaneously constitute the deliberate or unlawful conduct in the exercise of public functions (i.e., step one of the tort) and awarenessthat the conduct is unlawful and likely to injure the plaintiff (i.e., step two of the tort). [40] I would add one last footnote to this introductory discussion. The statement of claim makes repeated references to thedefendants’ wilful misconduct and, at least in one place, to Dr. Shaw having committed a “reckless and unlawful action”.

There isauthority for the proposition that under Category B it is sufficient for the plaintiff to prove that the defendant was subjectively reckless orwilfully blind that their conduct was unlawful and likely to harm the plaintiff (for example, see J.P. v British Columbia (Children andFamily Development), 2017 BCCA 308 at para 329, 1 BCLR (6th) 17); Odhavji at para 38; Madadi v Nichols, 2021 BCCA 10 at para 63,455 DLR (4th) 471; Harpold v Saskatchewan (Corrections and Policing), 2020 SKCA 98 at para 46. The fact that I will proceed on thesame basis as the Chambers judge – that is, that Dr.

Solgi has pleaded Category A misfeasance – does not mean that I have found he didnot plead Category B. A. Did the Chambers judge err in concluding that the allegations against thedefendants were “scandalous, frivolous and/or vexatious”? 1. The Chambers Decision [41] The Chambers judge began his review as to whether the statement of claim violated Rule 7-9(2)(

b) by quoting from thesummary of the meaning of the terms “scandalous”, “vexatious” and “frivolous” found in Paulsen v Saskatchewan (Ministry ofEnvironment), 2013 SKQB 119, 418 Sask R 96 [Paulsen]. He then observed that, while “it is not determinative, … some of the reliefsought by the plaintiff is … extraordinary or very unusual”. He pointed to “the financial quantum of damages sought by the plaintiff” (atpara 39) and noted that they were well beyond what may be awarded if Dr. Solgi was successful in his claim.

The core of the Chambersjudge’s analysis on this issue is found in the following four paragraphs from the Chambers Decision: [43] In this instance, I agree with the applicants that the statement of claim repeatedly makes false allegations of misconduct and badfaith against the College, the Council and, in particular, Dr. Shaw. Ms. Laing's brief catalogues a

summary of some of the allegationswhich are made, particularly as they relate to Dr. Shaw. I am satisfied from all of the material before me that it has not been demonstratedthat the applicants, and more particularly Dr. Shaw, have acted in an inappropriate fashion as alleged in the statement of claim. Theallegations are serious and clearly impugn the integrity of Dr. Shaw particularly in her actions as the Registrar. [44] None of the material before me demonstrates that Dr.

Shaw acted outside of the parameters of what The Medical Profession Act,1981 sets forth as to her duties or, indeed, similarly the duties of the Council. [45] I also agree with the generalization by [the defendants’ counsel] that many of the allegations and surrounding claims that thedefendants acted in bad faith and without, for example, respect for public safety and in a fraudulent manner, can only be viewed asdegrading and malicious. [46] In addition, I have concluded that the claim is, in law, frivolous as all actions taken by the defendants were done pursuant to theirresponsibilities under The Medical Profession Act, 1981 and the corresponding Bylaws and Regulations.

It does not appear that thedefendants did anything outside of what they are very specifically given the power and responsibility to do within the discretionaryorientation under The Medical Profession Act, 1981. [42] In the end, the Chambers judge was of the “view that the claim should be dismissed in its entirety, this being based upon Rule7-9(2)(

b) where the applicants have demonstrated that Dr. Solgi’s claim is scandalous, frivolous and/or vexatious” (at para 50). 2. General principles [43] Rule 7-9(2)(

b) allows a pleading to be struck if it “is scandalous, frivolous or vexatious”. Unlike when an application is madeto strike a pleading because it does not disclose a reasonable claim or defence, an application under Rule 7-9(2)(

b) engages with the meritsof the claim. This was explained by Sherstobitoff J.A. in Sagon v Royal Bank of Canada (1992), (SK CA), 105 Sask R133 [Sagon], as follows: [18] Striking out an entire claim on the ground that it is frivolous, vexatious or an abuse of process of the court is based on an entirelydifferent footing [than disclosing no reasonable cause of action].

Instead of considering merely the adequacy of the pleadings to support areasonable cause of action, it may involve an assessment of the merits of the claim, and the motives of the plaintiff in bringing it.Evidence other than the pleadings is admissible. Success on such an application will normally result in dismissal of the action, with theresult that the rule of res judicata will likely apply to any subsequent efforts to bring new actions based on the same facts.

Odgers onPleadings and Practice, 20th ed. says at pp. 153-4: If, in all the circumstances of the case, it is obvious that the claim or defence is devoid of all merit or cannot possibly succeed, an ordermay be made. But it is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases. Its exercise would notbe justified merely because the story told in the pleadings is highly improbable, and one which it is difficult to believe could be proved.[footnotes omitted]

[44] In this case, the Chambers judge oriented himself by quoting from the decision of Ryan-Froslie J. (as she then was) in Paulsen.In that case, Ryan-Froslie J. defined each of the terms relevant to Rule 7-9(2)(

b) as follows: [45] An action is scandalous when it impugns the opposite party or makes degrading charges or allegations of misconduct or bad faith.(See: Bank of Montreal v. Giesbrecht, 2005 SKQB 18, [2005] S.J. No. 12 (QL) at para. 14; C & J Hauling Ltd. v. Mistik ManagementLtd., 2010 SKQB 60, 351 Sask.R. 199, at para. 15). [46] An action is “vexatious” if it was instituted for an ulterior motive (other than to enforce a true legal claim) or maliciously for thepurpose of causing trouble or annoyance to the defendants. (See: Tamarak Energy Inc. v.

IPSCO Inc., 1999 SKQB 125, 185 Sask.R. 161 atpara. 17; Bank of Montreal v. Giesbrecht, supra, at para. 11 and C & J Hauling Ltd. v. Mistik Management Ltd., supra, at para. 15). [47] An action is “frivolous” if it is groundless and lacks substance (See: Chernoff v. Chernoff, [1988] S.J. No. 458 (QL) (Q.B.); Bankof Montreal v. Giesbrecht, supra, at para. 13 and C & J Hauling Ltd. v. Mistik Management Ltd., supra, at para. 15). [45] This helpful

summary has been adopted repeatedly in judgments of the Court of Queen’s Bench. In Hope v Pylypow, 2015SKCA 26 at para 32, 457 Sask R 55, Richards C.J.S. referred to it in support of the position that “scandalous’, ‘vexatious’ and ‘frivolous’each carries its own meaning”. It is, however, important to remember that Paulsen simply provides a

summary and is not an exhaustivestatement of applicable principles under Rule 7-9(2)(b). 3. Application: Scandalous [46] In this case, the Chambers judge found that the statement of claim was scandalous, agreeing that “many of the allegations andsurrounding claims that the defendants acted in bad faith and without, for example, respect for public safety and in a fraudulent manner,can only be viewed as degrading and malicious” (Chambers Decision at para 45). This conclusion embeds the

summary found inparagraph 45 of Paulsen that a pleading is scandalous “when it impugns the opposite party or makes degrading charges or allegations ofmisconduct or bad faith”. [47] However, not every pleading that impugns a party or makes degrading charges or allegations of misconduct or bad faith isscandalous. Were it so, it would mean that a party could never plead a cause of action that depended on the existence of such conduct. Theimportant qualification to the idea that a pleading that alleges one of these things is scandalous is that nothing is scandalous which ismaterial.

Said another way, it is only an immaterial allegation that can be scandalous. [48] This qualification was recognized in the two cases that Ryan-Froslie J. referred to in support of her

summary statement reliedupon by the Chambers judge. In Bank of Montreal v Giesbrecht, 2005 SKQB 18 at para 14, Barclay J. referred to Odgers on High CourtPleading and Practice, 23d ed (London: Sweet & Maxwell, 1991) at 188, for the proposition that where an “unnecessary matter in apleading contains any imputation on the opponent or makes any degrading charges or allegations of misconduct or bad faith against him oranyone else then it becomes scandalous and will be struck out” (emphasis added).

Similarly, in C & J Hauling Ltd. v Mistik ManagementLtd., 2010 SKQB 60 at para 15, 351 Sask R 199, Popescul J. (as he then was) stated that, generally, “a pleading is scandalous if itimproperly casts a party in a derogatory light” (emphasis added). [49] A party that has alleged that an action was committed in bad faith for the purposes of advancing a reasonable cause of actioncannot be said to have made the statement unnecessarily or improperly solely because it casts the object of the accusation in a bad light.See also: White Fox Alfalfa Seed Growers Co-operative Marketing Association v A. E.

McKenzie Company, (SK KB),[1940] 3 WWR 433 (WL) (Sask KB) at para 24; Gabrysh v Milenkovic, 2009 SKQB 302 at para 20, [2010] 5 WWR 112; and Rubbert vBoxrud, 2014 SKQB 221 at para 48, 450 Sask R 147. [50] In this case, the defendants made no attempt to parse out of the statement of claim those allegations that were not needed tomake out the cause of action from those that were. Had they done so, that might have allowed for some parts of the statement of claim tobe struck.

However, at a general level at least, the allegations that the Chambers judge found to be scandalous were necessary to make outthe cause of action based on abuse of public office. This fact, coupled with the Chambers judge’s conclusion that the statement of claimasserts a reasonable cause of action based on that tort, means that the statement of claim cannot be struck as being scandalous. It followsfrom this that the Chambers judge erred in law when he found that the statement of claim should be struck as being scandalous because itcontained these allegations. 4.

Application: Frivolous [51] The second basis for striking a pleading under this Rule is that the statement of claim is frivolous. In Harpold v Saskatchewan(Corrections and Policing), 2020 SKCA 98 at para 63, Schwann J.A. cited Paulsen and other authorities in support of the proposition thatan “action is frivolous if it is groundless and lacks substance”. In this case, the Chambers judge found the statement of claim to befrivolous “as all actions taken by the defendants were done pursuant to their responsibilities under [the MPA] and the correspondingBylaws and Regulations”.

He added that it “does not appear that the defendants did anything outside of what they are very specificallygiven the power and responsibility to do within the discretionary orientation under the [MPA]” (at para 46). [52] Respectfully, this reasoning does not engage with the elements of the tort that the Chambers judge found to be alleged in thestatement of claim. As I have reviewed, the statement of claim must be understood to allege that the defendants acted in the exercise oftheir public functions for the express purpose of harming Dr. Solgi.

It is no answer to this claim that the defendants exercised the powergiven to them under the MPA and the College’s bylaws. In this regard, the defendants did not suggest, nor could they, that the MPA, theCollege’s bylaws or any other grant of authority gave to them the power and responsibility to exercise their discretion for the expresspurpose of harming a member of the public.

This makes relevant the instruction of Iacobucci J. in Odhavji, when he stated that “insofar asthe nature of the misconduct is concerned, the essential question to be determined is not whether the officer has unlawfully exercised apower actually possessed, but whether the alleged misconduct is deliberate and unlawful” (at para 24). [53] The Chambers judge does say that “the statement of claim repeatedly makes false allegations of misconduct and bad faithagainst the College, the Council and, in particular, Dr. Shaw” (at para 43). However, as I will later explain, the defendants did not set out

in their application to establish that the allegations that they had acted in bad faith in the exercise of their authority for the purposes of harming Dr. Solgi were groundless and lacked substance. Instead, their argument under Rule 7-9(2)(

b) was much more limited and focused on whether Dr. Solgi’s action amounted to a collateral attack on their various administrative decisions. Therefore, the evidence before the Chambers judge did not allow for the evaluation of whether the allegations made in the statement of claim were false. The Chambers judge dealt with this absence of evidence by stating that it had “not been demonstrated that the [defendants], and more particularly Dr. Shaw, have acted in an inappropriate fashion as alleged in the statement of claim” (at para 43). However, in the absence of evidence from the defendants, this was not Dr.

Solgi’s burden to carry. [ 54 ] I must conclude from all of this that the Chambers judge erred in law when he found the statement of claim to be frivolous. 5. Application: Vexatious [ 55 ] The final basis for striking a pleading under Rule 7-9(2)(

b) is where it is “vexatious”. As summarized in Paulsen , a pleading is vexatious “if it was instituted for an ulterior motive (other than to enforce a true legal claim) or maliciously for the purpose of causing trouble or annoyance to the defendants” (at para 46). In this case, although the Chambers judge expressed the

summary view that the claim should be dismissed because the defendants had demonstrated it to be “scandalous, frivolous and/or vexatious”, nowhere in his reasons does he explain how it was instituted for an ulterior motive or maliciously for the purpose of causing trouble or annoyance to the defendants. [ 56 ] The suggestion that Dr. Solgi’s action was commenced for this reason is belied by the Chambers judge’s other conclusions. These include his finding that there “can be no doubt Dr.

Solgi believes that he has been mistreated and/or ill treated by the actions of the defendants” ( Chambers Decision at para 47), and that the statement of claim discloses a reasonable cause of action for abuse of public office. [ 57 ] Based on all of this, I conclude that the Chambers judge erred in law when he found the statement of claim to be vexatious. 6. Conclusion regarding Rule 7-9(2)(b) [ 58 ] For the reasons I have given, in my respectful view, the Chambers judge’s conclusion that Dr. Solgi’s statement of claim was scandalous, frivolous and/or vexatious was grounded on errors of law.

Correcting for his errors, the order striking the statement of claim on these bases must be set aside. [ 59 ] In this Court, the defendants did not vigorously defend the Chambers judge’s decision to strike the claim as being “scandalous, frivolous and/or vexatious” within what I might describe as the Paulsen framework. The explanation for this appears to be found in the fact that the reasoning followed by the Chambers judge to reach this conclusion was not consistent with the basis upon which the application was made in first instance to strike the statement of claim.

In this regard, the defendants’ notice of application stated the following grounds for striking the claim under Rule 7-9(2)(b): Scandalous, Frivolous and Vexatious 11. The Claim relies upon allegations for which there are appeal and judicial review mechanisms set in place by the legislature within the Act.

Inclusion of those allegations in this claim constitutes a general abuse of process and a collateral attack. [ 60 ] As this ground shows, the argument that was advanced in the notice of application was that the claim was scandalous, frivolous and vexatious because it “constitutes a general abuse of process and a collateral attack”. [ 61 ] There is an overlap between the Court’s ability to strike a pleading as constituting an abuse of process and the other grounds found in Rule 7-9, and the Court’s ability to control its own processes.

This point was made by Sherstobitoff J.A. in Sagon : [19] Finally, a separate mention should be made of the power of the court to prevent abuse of its process, a power which is inherent as well as conferred under Rule 173 [now Rule 7-9]. Bullen & Leake defines the power as follows at pp. 148-9: The term ‘abuse of the process of the court’ is a term of great significance.

It connotes that the process of the court must be carried out properly, honestly and in good faith; and it means that the court will not allow its function as a court of law to be misused but will in a proper case, prevent its machinery from being used as a means of vexation or oppression in the process of litigation.

It follows that where an abuse of process has taken place, the intervention of the court by the stay or even dismissal of proceedings, ‘although it should not be lightly done, yet it may often be required by the very essence of justice to be done.’ The term ‘abuse of process’ is often used interchangeably with the terms ‘frivolous’ or ‘vexatious’ either separately or more usually in conjunction. [footnotes omitted] [ 62 ] Although this overlap exists, as I will explain, one circumstance in which an abuse of process has been found is when litigation is seen as a collateral attack on a decision or order made by a court or tribunal.

In this case, I see no need to separately analyze this issue in the context of Rule 7-9(2)(b). Instead, I will consider whether Dr. Solgi’s action is an impermissible collateral attack in the next

section of these reasons. B. Did the Chambers judge err in concluding that the statement of claim was an abuse of process because it was a collateral attack? 1. The Chambers Decision [ 63 ] The defendants’ overarching argument before the Chambers judge was that Dr. Solgi’s action is improper because he should have pursued his dissatisfaction with their various decisions by following the appeal procedure set out in the MPA , or possibly through a

judicial review of these decisions. Their contention was that Dr. Solgi’s decision to sue, rather than follow this statutory process, meantthat his action should be struck as being contrary to Rule 7-9(2)(e). The Chambers judge agreed with the defendants’ argument on thispoint. [64] The Chambers judge began his analysis of the question as to whether the statement of claim violated Rule 7-9(2)(

e) by notingthat this rule “is particularly focused on the inherent jurisdiction of the Court which enables the Court to protect itself from being used forinappropriate or manifestly unsound actions” (at para 53). He reviewed the legislative scheme that allowed Dr. Solgi to appeal from thedecisions of Dr. Shaw to the College’s council, and the decisions of the College’s council to the Court of Queen’s Bench and, if necessary,thereafter to this Court on questions of law. He found that while “Dr.

Solgi believes that this is an appropriate vehicle by which to questionthe actions of the defendants, that is not what the legislation provides for” (at para 55). He held that the statement of claim amounted to a“collateral attack on the actions of the defendants”.

Citing to R v Wilson, (SCC), [1983] 2 SCR 594 at 599 [Wilson], hefurther explained a collateral attack to be “a challenge to the validity of a decision or an order that is not taken in proceedings specificallydesigned by law for the purpose of setting aside, reversing or modifying the decision or order” (at para 55). [65] With this groundwork having been laid, the Chambers judge then explained why he found Dr. Solgi’s statement of claim to bea collateral attack and, therefore, an abuse of the court’s processes: [57] In this instance, I am satisfied that the legislation is designed to provide a person such as Dr.

Solgi who feels aggrieved the abilityto challenge the order by way of the statutory framework. In this instance, in other words, an appeal to the Saskatchewan Court of Queen’sBench and, if necessary, thereafter to the Saskatchewan Court of Appeal on a question of law. [58] In considering this matter, I am mindful of the wording of the statute under the authority of which the order was issued (TheMedical Profession Act, 1981), the purpose of the legislation and, as noted, the existence of a right of appeal. [59] Found within the statutory framework, it can fairly be said, is the ladder principle.

The first rung on the ladder, s. 31.1(1) of TheMedical Profession Act, 1981, provides the Registrar with the authority to do a number of things relating to members. Thereafter,s. 31.1(4) directs that a person who is aggrieved by a decision of the Registrar made pursuant to a delegated power may apply to theCouncil to review that decision. Following from this, s. 62 provides that an individual can appeal the decision of the Council to the Courtof Queen’s Bench if he or she falls under one of the enumerated circumstances (which, in this instance, would be applicable to Dr.

Solgi)and, ultimately, the highest rung, s. 66, provides an aggrieved individual with the ability to seek leave of the Court of Appeal to appeal thedecision of the Court of Queen’s Bench on a point of law. Clearly, here, the plaintiff chose not to follow the ladder appeal process whichthe legislature directed but, rather, commenced a statement of claim seeking redress from the defendants. This, in my respectful [sic], is acollateral attack and leads to the conclusion that following this alternate route, rather than follow the statutory protocol, may fairly bedescribed as an abuse of the Court’s process.

The collateral attack is, of course, a direct impugning of the actions of the defendants in theirdealings with the plaintiff. [66] The question under this head is whether the Chambers judge erred in finding that Dr. Solgi’s action constitutes a collateralattack because there were other, more proper, procedures open to him to challenge the various decisions that lie at the heart of his action. 2.

Discussion [67] The doctrine of abuse of process “engages the inherent power of the court to prevent the misuse of its procedure, in a way thatwould be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice intodisrepute” (Canam Enterprises Inc. v Coles (2000), (ON CA), 51 OR (3d) 481 (CA) at para 55). It is a flexible concept.Indeed, it is one which seems to embrace any action which impugns the Court’s processes or authority or wastes its time and resources, orthe time and resources of the parties.

For this reason, the circumstances in which it may arise are bounded only by the limits to theimagination or actions of litigants. In Bear v Merck Frosst Canada & Co., 2011 SKCA 152, [2012] 6 WWR 1 [Bear], Richards J.A. (as hethen was) wrote: [36] The doctrine of abuse of process reflects the inherent power of a judge to prevent an abuse of his or her court’s authority. It is aflexible concept not restricted by the requirements of issue estoppel, such as those relating to privity.

The doctrine can be engaged by avariety of circumstances including what might be called those concerning the “re-litigation” of issues or claims. [68] Justice Richards went on to note that there “is often no individual marker indicating whether a proceeding is an abuse ofprocess”. Instead, it is “typically necessary to consider all of the relevant context and background in assessing whether an abuse of processhas been established” (at para 41).

See also: Toronto (City) v C.U.P.E., Local 79, 2003 SCC 63 at para 51, [2003] 3 SCR 77 [Toronto];and Canadian Pacific Railway Company v Kelly Panteluk Construction Ltd., 2020 SKCA 123 at para 58, 17 CLR (5th) 138. [69] One circumstance in which an abuse of process has been found is when litigation is a collateral attack on a decision or ordermade by a court or tribunal. In Wilson, to which the Chambers judge referred, McIntyre J. described a collateral attack as one “made inproceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment” (at 599).

In Danylukv Ainsworth Technologies Inc., 2001 SCC 44 at para 20, [2001] 2 SCR 460 [Danyluk] Binnie J. stated that “a judicial order pronounced bya court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for theexpress purpose of attacking it”. [70] The idea that a collateral attack may be an abuse of process was explained in Toronto. In that case, a city employee was firedafter he was convicted of sexual assault.

During arbitration over the dismissal, the arbitrator ruled that the criminal conviction wasadmissible, but not conclusive evidence, and ultimately found that the assault had not been proven and thus the dismissal was withoutcause. The Supreme Court found that the employee’s challenge to the criminal finding against him was an abuse of process because itoffended the “rule against collateral attack [that] bars actions to overturn convictions when those actions take place in the wrong forum”(at para 33).

After quoting from several authorities, including Wilson and Danyluk, Arbour J., writing for the majority, continued: [34] Each of these cases concerns the appropriate forum for collateral attacks upon the judgment itself. However, in the case at bar, theunion does not seek to overturn the sexual abuse conviction itself, but simply contest, for the purposes of a different claim with different

legal consequences, whether the conviction was correct. It is an implicit attack on the correctness of the factual basis of the decision, not a contest about whether that decision has legal force, as clearly it does. Prohibited “collateral attacks” are abuses of the court’s process.

However, in light of the focus of the collateral attack rule on attacking the order itself and its legal effect, I believe that the better approach here is to go directly to the doctrine of abuse of process. [ 71 ] Regarding the overarching doctrine of abuse of process, Arbour J. clarified that a litigant’s intention to relitigate an issue is not necessarily determinative. Indeed, an appeal is technically relitigating an issue, yet appeals are expressly permitted by statute.

Rather, the crucial consideration is whether that relitigation is an “attempt to impeach a judicial finding by the impermissible route of relitigation in a different forum. Therefore, motive is of little or no import” (at para 46). [ 72 ] The Supreme Court again examined the doctrine of collateral attack in Garland v Consumers’ Gas Co , 2004 SCC 25 , [2004] 1 SCR 629. The plaintiffs in that case had attempted to initiate a class action against Consumers’ Gas Co. over late fees which they said violated s. 347 of the Criminal Code .

The trial court struck the pleadings as being an impermissible collateral attack on the Ontario Energy Board’s approval of that fee structure and the available review mechanisms provided by that Board’s enabling statute. The Ontario Court of Appeal set this order aside and its decision was upheld by the Supreme Court.

Justice Iacobucci explained this result by stating “the doctrine of collateral attack does not apply in this case because here the specific object of the appellant’s action is not to invalidate or render inoperative the Board’s orders, but rather to recover money that was illegally collected by the respondent as a result of Board orders” (at para 71). [ 73 ] This distinction, between actions that seek to invalidate the effect of a previous court or tribunal order and legal proceedings which seek damages allegedly suffered as a consequence of such an order, was developed in six companion decisions of the Supreme Court of Canada released in 2010.

The most frequently cited case out of this series is Canada (Attorney General) v TeleZone Inc. , 2010 SCC 62 , [2010] 3 SCR 585 [ TeleZone ]. [ 74 ] In TeleZone , the party of that name had initiated a claim for breach of contract, negligence, and unjust enrichment arising from the Minister of Industry Canada’s decision not to issue the company a licence to provide telecommunications services. Industry Canada had indicated to TeleZone that six licences would be issued to applicants, but then ultimately only issued four, not including TeleZone.

The defendants’ position was that TeleZone’s action was improper because it had not challenged Industry Canada’s decision through judicial review. Justice Binnie described the principle underlying the question confronting the Court in the following terms: [18] This appeal is fundamentally about access to justice. People who claim to be injured by government action should have whatever redress the legal system permits through procedures that minimize unnecessary cost and complexity.

The Court’s approach should be practical and pragmatic with that objective in mind. (Emphasis added) [ 75 ] He then set the line which divides those cases where a claim for damages can proceed and those cases where a litigant must pursue a matter in an alternative forum by reference to the litigant’s objective or purpose for initiating the impugned proceeding: [19] If a claimant seeks to set aside the order of a federal decision maker, it will have to proceed by judicial review, as [ Canada v Grenier , 2003 FCA 348 , 262 DLR (4th) 337 ] held.

However, if the claimant is content to let the order stand and instead seeks compensation for alleged losses (as here), there is no principled reason why it should be forced to detour to the Federal Court for the extra step of a judicial review application (itself sometimes a costly undertaking) when that is not the relief it seeks.

Access to justice requires that the claimant be permitted to pursue its chosen remedy directly and, to the greatest extent possible, without procedural detours. (Emphasis added) [ 76 ] On the facts, the Supreme Court held that TeleZone was seeking to recover damages from the Minister of Industry Canada’s alleged tortious actions and contractual violations, and not to overturn the administrative decision not to issue it a licence. Accordingly, the Supreme Court allowed its claim to proceed in the Ontario Superior Court.

In reaching this conclusion, Binnie J. offered the following additional guidance: [76] Where a plaintiff’s pleading alleges the elements of a private cause of action, I think the provincial superior court should not in general decline jurisdiction on the basis that the claim looks like a case that should be pursued on judicial review. If the plaintiff has a valid cause of action for damages, he or she is normally entitled to pursue it. … [78] To this discussion, I would add a minor caveat .

There is always a residual discretion in the inherent jurisdiction of the provincial superior court (as well as in the Federal Court under s. 50(1) of its Act), to stay the damages claim because in its essential character, it is a claim for judicial review with only a thin pretence to a private wrong. Generally speaking the fundamental issue will always be whether the claimant has pleaded a reasonable private cause of action for damages.

If so, he or she should generally be allowed to get on with it. (Emphasis added) [ 77 ] Although I will not examine all of TeleZone ’s companion cases, some deserve attention for their relevance to Dr. Solgi’s appeal. In Canada (Attorney General) v McArthur , 2010 SCC 63 , [2010] 3 SCR 626 [ McArthur ], the plaintiff was a former federal prisoner who initiated a claim seeking damages for his alleged mistreatment while he was placed in segregation.

Following TeleZone , the Supreme Court held that the essential issue was not one which fell under the administrative regime of the Corrections and Conditional Release Act , SC 1992, c 20 , and, as such, the plaintiff was entitled to pursue his claim: [11] ... Mr. McArthur may have some interest in the good governance of the prison system but at the moment he is looking for compensation.

He may not get it, of course, but he ought to be given his day in court without being put through unnecessary and unproductive proceedings unless the applicable statutes clearly and explicitly compel him to detour to the Federal Court.

… [16] While Mr. McArthur’s damages claim could be characterized in some sense as a “collateral attack” on the segregation orders, I do not believe that such an “attack” is precluded by the Federal Courts Act [RSC 1985, c F-7 ]. Government decision making lies at the heart of many, if not most claims to recover financial loss from the Crown. … [ 78 ] In Parrish & Heimbecker Ltd. v Canada (Agriculture and Agri-Food) , 2010 SCC 64 , [2010] 3 SCR 639 [ Parrish ], the company, Parrish, brought a claim against the Canadian Food Inspection Agency [CFIA] alleging misfeasance in public office, among other claims.

CFIA had issued Parrish an import permit for Ukrainian wheat, but then revoked the permit and issued a new one with different conditions, forcing Parrish to find new uses for this wheat, and new wheat to fulfill its existing contracts. The claim was struck on the basis that it was a collateral attack against the licensing decisions for which Parrish could have pursued judicial review. The Supreme Court held that the claim was over damages stemming from the licensing decisions, and was not seeking to invalidate the licensing decisions.

Therefore, judicial review would not address the intended purpose of Parrish’s action and the Court allowed it to proceed. [ 79 ] In Manuge v Canada , 2010 SCC 67 , [2010] 3 SCR 672 [ Manuge ], Abella J. explored Binnie J.’s comments in TeleZone regarding the “residual discretion” of a court to strike a claim when its “essential character” is a claim for judicial review.

She also discussed what approach a court should take when some parts of a claim raise issues that are amenable to review in another forum: [19] The exercise of the discretion to stay an action in this context is dependent on an identification of the essential character of the claim as an assertion of either private law or public law rights. I agree with the Crown that some of Mr. Manuge’s claims raise issues that are amenable to judicial review. However, the question is not just whether some aspects of Mr.

Manuge’s pleadings could be addressed under ss. 18 and 18.1 of the Federal Courts Act , but what, in their essential character, his claims are for. [20] In my view, with respect, the discretion to grant a stay should not be exercised in this case. In the context of deciding the certification motion, Barnes J. has already addressed the question of whether the claims alleged reasonable causes of action (paras. 39-41). He concluded that the “allegations of unlawfulness, ultra vires and a breach of subsection 15(1) of the Charter easily meet the legal threshold of a reasonable cause of action” (para. 39).

Further, he was not prepared to find that it was plain and obvious that Mr. Manuge could not succeed in his “rather sparse” allegations of breach of fiduciary duty and unjust enrichment (paras. 40-41). The Crown does not ask us to interfere with these findings. Assuming that such reasonable causes of action exist, their presence rebuts the Crown’s suggestion that Mr. Manuge’s claims for damages disclose “only a thin pretence to a private wrong” ( TeleZone , at para. 78 ). (Emphasis added) [ 80 ] I find in these cases a complete answer to the defendants’ argument that Dr.

Solgi’s action should be dismissed as a collateral attack. [ 81 ] In

summary, a claim can be characterized as a collateral attack when it challenges the validity of a court or administrative order in a different forum, hence causing that claim to constitute an abuse of the court’s process. If a claimant is seeking to set aside or vary that order, they generally must proceed by judicial review, or avail themselves of the appeal mechanisms provided by the administrative structure’s enabling statute.

However, if the claimant is “content to let the order stand” ( TeleZone at para 19 ) and is instead seeking damages by pursuing a recognized cause of action because of the harm they have suffered from that order, then their claim is generally one that is recoverable in a civil action.

Indeed, their claim is such that it would typically be impossible for them to achieve the recovery they seek on an appeal from, or judicial review of, the order. [ 82 ] To discern the line dividing a case involving a collateral attack and one involving a permissible civil claim, a court must characterize the essential character or nature of the claim. If it is an attempt to invalidate the administrative order, then the litigant must proceed through the appeal avenues provided by the applicable administrative scheme or by judicial review.

If the essential nature of the claim is not one designed to invalidate the administrative order, but instead seeks damages for the harm that order has caused the plaintiff, it should generally be allowed to proceed. In the latter circumstance, only if it can be said that the claim is “a claim for judicial review with only a thin pretence to a private wrong” should the Court still exercise its discretion to strike the claim ( TeleZone at para 78 ). [ 83 ] In Dr.

Solgi’s case, the Chambers judge found that “the subject context of the plaintiff’s statement of claim should have been dealt with through the legislative format for an appeal to the Court of Queen’s Bench” ( Chambers Decision at para 54). He was “satisfied that the legislation is designed to provide a person such as Dr. Solgi who feels aggrieved the ability to challenge the order by way of the statutory framework” (at para 57). In short, as I understand it, the Chambers judge determined that Dr.

Solgi’s claim was an attempt to relitigate the defendants’ licensing decisions in the Court of Queen’s Bench. [ 84 ] However, this conclusion ignores the Chambers judge’s prior determination that Dr. Solgi was pursuing a claim for a recognized cause of action, that is, abuse of public office, with a bona fide belief as to its merits. In that respect, the essential character of his claim was not an attempt to relitigate the licensing decision, but rather an attempt to obtain a judgment for the damages alleged to have been caused by that decision. [ 85 ] The assertion by Dr.

Solgi of a claim of misfeasance in public office is not, as the defendants would urge this Court to conclude, merely a matter of innovative pleading on the part of Dr. Solgi. To the contrary, and I would reiterate, he has been found to have pleaded a reasonable cause of action and is entitled to pursue that claim based on the principle demonstrated by Telezone and its companion decisions. I do not need to consider whether the same result would prevail if Dr. Solgi was not seeking damages in his claim. [ 86 ] I am mindful that, in addition to seeking damages, Dr.

Solgi’s statement of claim asks for an order “to reinstate the license to practice of the plaintiff and order to remove the restrictions on the license to practice of the plaintiff”. This relief can only be granted through the administrative processes the defendants have identified. However, as in Manuge , the inclusion of this request for relief does not change the essential character of the proceeding. Instead, its inclusion is properly dealt with by striking it from the statement of claim, leaving the remainder to stand. [ 87 ] The defendants argue that Dr.

Solgi was required to first pursue his administrative remedies and, only after failing to recover

through those avenues, could he then pursue his action before the Court of Queen’s Bench. I cannot agree. None of these alternative routes could provide Dr. Solgi with compensation for the loss he claims to have suffered at the defendants’ hands. [ 88 ] Justice Binnie replied to a similar submission to that made by the defendants in this case, by stating that people “who claim to be injured by government action should have whatever redress the legal system permits through procedures that minimize unnecessary cost and complexity” ( TeleZone at para 18 ).

He found there to be “no principled reason why [the claimant] should be forced to detour” to judicial review or appeal (at para 19). He added that, if a claimant has properly pleaded an action for damages, “he or she should generally be allowed to get on with it” (at para 78). [ 89 ] Justice Rothstein made much the same point in Parrish , when he found that “an application for judicial review to invalidate the licensing decisions would serve no practical purpose” (at para 19).

Thus, he held that “the Federal Court should have decided Parrish’s claim for damages without requiring it to first be successful on judicial review” (at para 21).

I would add that, in Greengen Holdings Ltd. v British Columbia (Ministry of Forests, Lands and Natural Resource Operations) , 2018 BCCA 214 , 422 DLR (4th) 672, the British Columbia Court of Appeal reached the same conclusion, allowing a claimant to not only continue its civil action before pursuing judicial review, but even to pursue both simultaneously since different remedies might be reached through each fora. [ 90 ] A specific part of the defendants’ argument that Dr.

Solgi must first pursue his administrative remedy is the idea that the legislature has created an exhaustive code for challenging medical licensing decisions. They submit that Dr. Solgi cannot establish the unlawfulness of their conduct without first setting those decisions aside, which can only be done through the administrative appeal processes.

They couple this argument with reference to case law, exemplified by Nadler v College of Medicine, University of Saskatchewan , 2017 SKCA 89 , 33 Admin LR (6th) 124, that relates to the need for a party seeking judicial review to exhaust administrative remedies before pursuing even judicial review. However, none of the cases to which the defendants refer involves the tort of abuse of public office.

This is important because the questions that might be asked by pursuing the matter in the administrative forum are likely to be different than those in the tort action. [ 91 ] Perhaps more significantly, the defendants’ arguments fail to address the fact that the tort alleged by Dr. Solgi does not depend on setting the defendants’ decisions aside. I explained the tort of abuse of public office in the introduction to my discussion of the two issues in this appeal.

As I noted, under Category A of the tort – which involves “conduct that is specifically intended to injure a person or class of persons” – “the fact that the public officer has acted for the express purpose of harming the plaintiff is sufficient to satisfy each ingredient of the tort, owing to the fact that a public officer does not have the authority to exercise his or her powers for an improper purpose, such as deliberately harming a member of the public” ( Odhavji at paras 22 and 23 ). Therefore, as summarized by one commentator, even if a public officer performs

an act falls within the scope of their authority “it will be unlawful if it is done for the purposes of harming the plaintiff” (Andrew Botterell et al., Fridman’s the Law of Torts in Canada , 4th ed (Toronto: Thomson Reuters, 2020) at 1104). Brought into the instruction given in TeleZone and other cases that have followed it, the tort of abuse of public office may be made out even if no step is taken to set such order aside, conditional of course on Dr.

Solgi establishing that the defendants acted with the required intent. [ 92 ] The defendants resist this conclusion with reference to such cases as Danyluk and British Columbia (Workers’ Compensation Board) v Figliola , 2011 SCC 52 , [2011] 3 SCR 422. Taken together, these cases restrict the ability of a party to litigate issues which have been decided in another forum. However, as I understand the cause of action alleged in this case, that is not what Dr. Solgi’s claim is fundamentally about. Rather, it is possible for Dr. Solgi to succeed in his claim without setting the defendants’ decisions aside.

The cause of action Dr. Solgi has pleaded does not require him to relitigate the issues decided by defendants or set aside their orders. While Dr. Solgi’s claim depends on showing that these orders should not have been made, the damages he seeks arise because they were made . In saying this, of course, I offer no comment on the likelihood of Dr. Solgi succeeding in proving his allegations. The sole issue in this appeal is whether he should be precluded from his attempt to do so. [ 93 ] The defendants also refer to M.K. Engineering Inc. v Plecash , 2015 ABCA 311 . In that case, the Alberta Court of Appeal upheld a

summary dismissal of a claim for damages against a professional regulator. One of the reasons given by the Court for upholding the dismissal of the claim was a “collateral attack on the disciplinary process” (at para 6). However, it is evident from the Court’s short reasons that there had been a determination on the merits that there was no basis in fact for the allegations made against the defendants. In this regard, the Court stated that “there was no evidence of any use of unlawful means” (at para 4).

Because there was no basis for the allegations, the court also stated that “the chambers judge was entitled to summarily dismiss the action” (at para 5). [ 94 ] To recap, the Chambers judge’s conclusion that the statement of claim pleaded a reasonable cause of action in abuse of public office seeking damages based on that alleged tort answers the argument that Dr. Solgi’s action is an abuse of the Court’s processes because it amounts to a collateral attack on the defendants’ administrative decisions. 3.

Conclusion regarding Rule 7-9(2)(e) [ 95 ] For the reasons I have given, the Chambers judge erred in law when he found that Dr. Solgi’s action was an abuse of process after having concluded that his statement of claim pleaded a reasonable cause of action seeking damages for the tort of abuse of public office. [ 96 ] The request for an order “to reinstate the license to practice of the plaintiff and order to remove the restrictions on the license to practice of the plaintiff” must be struck from the statement of claim. V.

CONCLUSION [ 97 ] I would allow the appeal from the Chambers Decision and set aside the order made by the Chambers judge striking the statement of claim. In its place, I would substitute an order striking only paragraph 1 of the relief sought by Dr. Solgi, that being a request for an order “to reinstate the license to practice of the plaintiff and order to remove the restrictions on the license to practice of the plaintiff”. The defendants’ application for security for costs must be remitted to the Court of Queen’s Bench for determination.

[ 98 ] To reiterate, I offer no comment on the merits of Dr. Solgi’s allegations. Instead, my conclusion is simply that, at this juncture at least, no proper basis has been shown to prevent him from continuing with his action to attempt to prove them. [ 99 ] Finally, because Dr. Solgi’s right to pursue his claim has been upheld, in the normal course he would be entitled to his costs in the Court of Queen’s Bench and in this Court: Hope v Pylypow , 2015 SKCA 26 at paras 49–63 , [2015] 6 WWR 551.

However, given that the ultimate validity of his position depends on the veracity of his allegation that the defendants acted in a deliberately unlawful way, I would order that these costs only be payable in the cause. Said more directly, Dr. Solgi shall be entitled to these taxable costs only if he succeeds in his action against the defendants. “Leurer J.A.” Leurer J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.