Elaine Strosberg

The appellant lawyer appealed a decision of the Law Society Tribunal Appeal Division upholding findings of professional misconduct, a five-month suspension, and costs.

The misconduct related to his representation of a vulnerable family law client, filing an affidavit containing personal attacks on a judge, and maintaining a website about a dismissed Canadian Judicial Council complaint.

The Divisional Court dismissed the appeal, finding the disciplinary actions reflected a proportionate balancing of the appellant's freedom of expression under s. 2(b) of the Charter and rejecting his s. 15(1) Charter and procedural arguments.

The moving party, a sole practitioner, sought a stay of a five-month suspension imposed by the Law Society Tribunal pending his appeal to the Divisional Court.

The court applied the RJR-MacDonald test and found that the moving party raised a serious issue regarding whether the Tribunal erred by failing to apply the Groia test for in-court behaviour in the context of his freedom of expression claim.

The court also found that the moving party would suffer irreparable harm if forced to serve the suspension before the appeal, as he would lose his clients and likely complete the suspension before the appeal was heard.

The balance of convenience favoured granting the stay.

The motion was granted, but costs were denied as the self-represented moving party failed to prove opportunity costs.