Executive Summary: Key Legal and Evidentiary Issues

• Abuse of process was found where the appellant attempted to re-litigate the addition of non-LSO defendants as necessary parties, an issue already decided.

• The negligence claim against the non-LSO defendants was held to be statute-barred under the Limitations Act, 2002, due to the timing of the amendment.

• The court confirmed that the doctrine of abuse of process applies to claims that were or could have been made in prior proceedings.

• The appellant’s discoverability argument regarding the limitation period was rejected based on evidence that he had knowledge of the relevant facts by December 2020.

• The motion judge’s authority to determine whether an amendment is statute-barred at the leave-to-amend stage was upheld.

• Costs in the amount of $5,000, all-inclusive, were awarded to the respondents.

Background and facts of the case

Alexander Shaulov applied for a licence to practise law in October 2017 after completing the Law Society of Ontario’s (LSO) Law Practice Program. He passed the solicitor examination but failed the barrister examination four times. As a result, the LSO, in accordance with its bylaws, advised Shaulov on October 1, 2020, that his application for a licence was deemed abandoned.

On April 6, 2021, Shaulov issued a statement of claim against the LSO and three other defendants: Performance Assessment Group Inc., John Braham, and Michael Williams. The non-LSO defendants were consultants involved in the design of the LSO’s licensing examinations. Shaulov’s original claims against the non-LSO defendants were for alleged violations of the Human Rights Code, R.S.O. 1990, c. H.19.

The defendants brought a motion to strike the claim. Justice Vermette struck the claims against the non-LSO defendants and some claims against the LSO without leave to amend, and struck the balance of the claims against the LSO with leave to amend. Shaulov appealed, and the Court of Appeal upheld the order striking the claims against the non-LSO defendants without leave to amend, but referred part of the claim against the LSO back to the Superior Court.

After this, Shaulov sought to amend his statement of claim to add a negligence claim against the non-LSO defendants and argued that they were necessary parties under Rule 5 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Justice Vermette ruled that the non-LSO defendants were not necessary parties and that Shaulov could not amend his claim to add a negligence claim as of right, requiring him to seek leave under Rule 26.02.

Shaulov then brought a motion under Rules 5 and 26.02 to add the non-LSO defendants as necessary parties and to amend the claim to plead negligence. Justice Brownstone dismissed the motion, holding that the issue of adding the non-LSO defendants as necessary parties had already been decided and that raising it again was an abuse of process. She also found that the negligence claim was statute-barred under the Limitations Act, 2002, as it was brought more than two years after Shaulov had knowledge of the relevant facts. The record showed that by December 3, 2020, Shaulov had actual knowledge of the non-LSO defendants’ involvement, and the proposed amended statement of claim was served on June 16, 2023.

Discussion of legal issues and outcome

On appeal, Shaulov raised three grounds: whether the motion judge erred in finding the motion to add the non-LSO defendants as necessary parties was already decided and thus an abuse of process; whether the Limitations Act was misapplied in finding the negligence claim statute-barred; and whether leave to amend the pleadings to add the negligence claim should have been granted. The Court of Appeal found no merit in these grounds and dismissed the appeal.

The court held that the issue of necessary parties had been finally determined in previous decisions, and the doctrine of abuse of process prevented it from being raised again. The court also upheld the finding that the negligence claim was statute-barred, as the motion judge was entitled to determine, based on the record, that Shaulov had knowledge of the relevant facts by December 2020. The appellant’s argument that the discoverability principle extended the limitation period was rejected. The court further agreed that the proposed negligence claim constituted a new claim and was therefore statute-barred.

The appeal was dismissed. The respondents were awarded costs in the amount of $5,000, all-inclusive. No other amounts were ordered or awarded.