Ontario Court of Justice

DATE: 2022 09 07

BETWEEN:

TORONTO (CITY) (Respondent)

— AND —

LIUFENG ZHEN (Appellant)

Before: Justice V. Rondinelli

Heard on: July 28, 2022

Reasons for Judgment released on: September 7, 2022

Counsel: J. Davie, for the Appellant A. Katsev, for the Respondent

Rondinelli J.:

Introduction

[1] “A paralegal shall encourage public respect for, and try to improve, the administration of justice.” So reads Rule 6.01(1) of the Law Society of Ontario’s (“LSO”) Paralegal Rules of Conduct. Any reasonable member of the public that observes proceedings on a regular basis in L Court at Old City Hall (where all the Toronto Region Provincial Offences Act (“POA”) appeals are heard) may not necessarily see great adherence to that rule.

[2] This appeal deals with an argument that is raised on a fairly regular basis in this court: Due to a paralegal agent’s error, the Appellant was convicted of a Part I offence without a trial and wishes to have that conviction set aside and a new trial ordered.

[3] As a Part I matter, this appeal comes to this court by way of s. 135(1) of POA. As such, pursuant to s. 138(1) of the POA, this court has the power to “affirm, reverse or vary the decision appealed from or where, in the opinion of the court, it is necessary to do so to satisfy the ends of justice, direct a new trial.” Because the Appellant was convicted without a trial, this court must be satisfied that it is in “the ends of justice” to set aside the conviction and direct a new trial.

[4] I will begin by stating that I have been presiding in L Court regularly since 2017. Since that time, I have continued to be surprised at the frequency in which many paralegal agents approach this court with a lackadaisical and sometimes, even a cavalier attitude. For example, certain paralegal agents frequently attending on the day of appeal seeking to resolve matters with prosecutors in the hallway – or more recently in a Zoom breakout room – rather than being prepared to argue appeals on their merits; frequent same-day adjournment requests for no principled bases; paralegal agents appearing for other paralegal agents with no meaningful instructions; paralegal agents appearing to argue appeals in which they submitted their own affidavits in support of the appeal; and paralegal agents sometimes not even attending the hearing of the appeal with no notice or explanation given to the prosecutor or the court. Furthermore, the purge list dockets dealt with in this court have included hundreds, if not thousands, of Part I appeals that were started by paralegals and then left languishing, waiting to be perfected – some dating back to the 1990s.

[5] Whatever the reason may have been for this culture of complacency to develop, it is time for it to come to an end. Courts are now beginning to regroup from the pandemic and seeking to deal with a backlog of cases. Access to justice is important to society – including members of society looking to dispute their speeding tickets and other Part I offences. But with bail hearings, in-custody trials and vulnerable complainants in sexual assault matters all waiting for their day in court, it is hard to justify continuing to routinely allow meritless Part I matters to clog court dockets here at Old City Hall.

[6] The goal of access to justice has seemed to morph into an excess of justice of sort, especially when it comes to Part I matters, where there is no possibility of imprisonment upon conviction and a maximum fine of $1,000: See s. 12 of the POA. In other words, they are the most minor provincial offences. The POA provides a defendant a number of options in dealing with a Part I matter. That is, a defendant may pre-pay the fine, have an early resolution meeting with a prosecutor, have a trial, or seek a re-opening. Even where a defendant avails themselves to any of those options, the POA allows a further procedural route to appeal to this court pursuant to s. 135.

[7] These procedural options are in keeping with the intention of the POA to create “a clear, self-contained procedural code to simplify procedures, eliminate technicalities, enhance procedural rights and protections, and remove the obstacle of delay from the assertion of rights and the conclusion of prosecutions.”: See R. v. Courtice Auto Wreckers Limited, 2014 ONCA 189 at para. 34.

[8] However, the flexible and simplified procedures ushered in by the POA should not be used as an invitation for paralegal agents to fill up appeal court dockets with meritless claims simply because the POA provisions allow for generous appeal routes.

[9] In this “People’s Court”, paralegals are not lay people – they are licenced paralegals with professional obligations that offer paid services to the public. In R. v. Bilinski, 2013 ONSC 2824 at paras. 51-57, Justice Durno provides a helpful summary of the evolution of paralegals, going from an unregulated industry to becoming licensed members of the LSO. Since 2007, paralegals have been bound by the Paralegal Rules of Conduct. I will refer to some of these rules and guidelines that may be relevant to the circumstances of appeals such as the one before the court.

Errors and Omissions

[10] In busy practices, some errors are surely bound to happen. Indeed, the Paralegal Professional Conduct Guidelines expect as much:

Guideline 6: Competence and Quality of Service Failing to be Competent Rule Reference: Rule 3.01

18. The Rules do not require a standard of perfection. An error or omission, even though it might be actionable for damages in negligence or contract, will not necessarily constitute a breach of Rule 3.01. Conversely, incompetent professional practice may constitute professional misconduct whether or not the error or omission is actionable through the courts for professional negligence. While damages may be awarded for negligence, incompetence can give rise to the additional sanction of disciplinary action.

[11] However, the guidelines go further to expect paralegals to take certain steps upon discovering an error or omission has been made:

Guideline 7: Advising Clients Errors Rule Reference: Rule 3.02(21)

15. When providing legal services, the paralegal may make a mistake or fail to do something he or she should have done. When the paralegal realizes this has happened, he or she must fulfill specific duties to the client.

Guideline 20: Insurance General Rule Reference: Rule 8.04(1) – (3)

1. As soon as a paralegal discovers an error or omission that is or may reasonably be expected to involve liability to his or her client, the paralegal should take the following steps, in addition to those required by Rule 8.04:
   • immediately arrange an interview with the client and advise the client that an error or omission may have occurred that may form the basis of a claim against the paralegal by the client;
   • advise the client to obtain an opinion from an independent paralegal or lawyer and that, in the circumstances, the paralegal may not be able to continue acting for the client; and
   • subject to the rules about confidentiality, inform the insurer of the facts of the situation.
2. While the introduction of compulsory insurance imposes additional obligations upon a paralegal, those obligations must not impair the relationship between the paralegal and client or the duties owed to the client.

[12] These guidelines are to be read in conjunction with Rule 3.01(21) of the Paralegal Rules of Conduct that states:

Errors

(21) If, in connection with a matter for which a paralegal is responsible, the paralegal discovers an error or omission that is or may be damaging to the client and that cannot be rectified readily, the paralegal shall,

(a) promptly inform the client of the error or omission, being careful not to prejudice any rights of indemnity that either of them may have under an insurance, client's protection or indemnity plan, or otherwise;

(b) recommend that the client obtain legal advice elsewhere concerning any rights the client may have arising from the error or omission; and

(c) advise the client that in the circumstances, the paralegal may no longer be able to act for the client.

[13] A reading of LSO’s rules and guidelines demonstrate that errors and omissions are serious matters that may involve withdrawal of services, resort to independent legal advice for the client, and self-reporting to a paralegal’s insurer. Yet despite the serious nature of an error or omission, the issue is typically raised in this court in an almost casual manner with curt explanations provided by the errant paralegal such as “administrative error on my part” or “misdiarized the court date.” Many paralegal agents have seemingly come to expect this court to grant new trials on such perfunctory evidence and undue reliance on the general principle that no fault can be placed on the defendant who has suffered prejudice from this error.

The “Ends of Justice” Test

[14] As mentioned, claims similar to this appeal are raised with great frequency in the Toronto Region. In my view, scant appeal records should not be sufficient to succeed on appeal on these sorts of claims. Appellants seeking to set aside a conviction on the basis of a paralegal agent’s error or omission, should be prepared to file personal affidavits deposing of at least the following:

i) Who they retained to have carriage of their matter; ii) When they retained the paralegal agent; iii) What instructions were given to the paralegal agent to deal with the matter; iv) The date when they were notified of the paralegal agent’s error; v) Whether they were informed that they could seek independent legal advice concerning any rights the defendant may have arising from the error or omission. If so, did they seek independent legal advice?; vi) Whether they were advised that in the circumstances, the paralegal may no longer be able to act for the client. If so, did they wish for the agent to continue to act for them?; and vii) Whether they suffered any direct or collateral consequences due to the conviction. If so, how have these consequences affected them?

[15] In addition, an affidavit from the paralegal agent whose actions or non-actions are at issue should be filed. This affidavit should include information relating to:

i) When the paralegal agent was retained by the client; ii) What instructions the client provided in relation to the matter; iii) The nature of the error or omission along with specific details as to how the error or omission occurred; iv) When the error or omission was discovered; v) When the client was informed of the error or omission; vi) Whether the client was informed that they could seek independent legal advice concerning any rights the client may have arising from the error or omission; vii) What steps, if any, were taken to remedy the error; and viii) When those steps were taken.

[16] Such affidavits will be of great assistance to the court in determining whether the ends of justice require directing a new trial under s. 138(1). The use of affidavits also may lead to corollary benefits. First, with courts being more vigilant of paralegal agent practices, paralegal agents may seek to institute better practices to avoid errors and omissions. Second, in seeking independent legal advice or in preparation of their affidavits, clients may reach the conclusion that it may not be worth the time or expense to proceed with the appeal. Third, fulsome affidavits will allow prosecutors to better vet upcoming appeals with a view of making concessions in the appropriate cases.

[17] It is important to note that the framework proposed in these Reasons are meant for those appeals where errors or omissions have occurred (eg. not filing a ticket on time or misdiarizing a court appearance) that are separate and apart from those cases where a defendant asserts that the paralegal agent at trial acted contrary to the defendant’s instructions, so as to have amounted to professional incompetence or otherwise contributed to a miscarriage of justice. In those latter situations, the protocol outlined by Justice Libman in City of Toronto v. Hill, 2007 ONCJ 253 should continue to be followed where possible.

Analysis

[18] On May 3, 2019, the Appellant received a ticket for driving while holding a handheld communication device. Kelvin Cheng was the principal agent retained for this matter. However, Payam Javadi was the designated agent assigned to deal with the Appellant’s trial. After three court appearances, a trial date was scheduled for December 8, 2021. That December date was adjourned at the request of Mr. Javadi due to a family emergency. A new trial date was set and marked peremptory for February 8, 2022.

[19] On the morning of February 8, 2022, Mr. Javadi began feeling ill and contacted Mr. Cheng to inform him that Mr. Javadi would not be able to conduct the Appellant’s trial and an adjournment should be sought. I stop here to make an observation. Text messages between Mr. Javadi and Mr. Cheng were tendered into evidence at the appeal. A portion of Mr. Javadi’s messages read:

-Ya stomach is upset low blood pressure bad very bad headache…I have minor diabetes

• Fucks me up some days!

[20] Mr. Javadi may be reminded that Rule 7.01(3) of the Paralegal Rules of Conduct states, “A paralegal shall not, in the course of providing legal services, communicate, in writing or otherwise, with a client, another licensee, or any other person in a manner that is abusive, offensive, or otherwise inconsistent with the proper tone of a professional communication from a paralegal.” As text messages of this nature are likely to be maintained as part of the record keeping requirements of the LSO and may find themselves forming part of a court record as they did in this case, Mr. Javadi may wish to improve upon his communication skills in the future.

[21] Both Mr. Javadi and Mr. Cheng submitted affidavits as part of the appeal and were cross-examined on the affidavits at the hearing of the appeal. Their affidavits and viva voce evidence ultimately came down to this: Mr. Javadi was unable to attend the Appellant’s trial due to his illness and while Mr. Javadi thought Mr. Cheng would attend court to address the Appellant’s matter, Mr. Cheng instead thought Mr. Javadi would call in to the prosecutor or the court to address the matter. In the end, neither paralegal agent attended court and the Appellant was deemed not to dispute and convicted of the offence.

[22] Mr. Cheng further testified that upon hearing from Mr. Javadi that he would be too ill to attend court, Mr. Cheng called the Appellant who was on his way to Mr. Cheng’s office and informed the Appellant that his trial would not be going ahead on that day because Mr. Javadi was ill and that the Appellant need not attend court.

[23] This advice came despite the fact that the matter had been marked peremptory to proceed on February 8, 2022. In his submissions before this court, Mr. Davie argued that it did not matter much that it had been marked peremptory. He stated:

The fact that it was marked peremptory – not only does it not hold a lot of weight in these courts where often things are marked double peremptory or even triple preemptory, I don’t believe it would be in the interest of justice for a Justice of the Peace to not allow an adjournment when a defendant has hired someone to represent them and they are ill and not able to properly represent the defendant.

[24] There is no doubt that the term “peremptory” is used regularly in the Ontario Court of Justice. And despite its ordinary meaning, using the term “peremptory” does not necessarily mean that a matter must proceed. As the Court of Appeal explained in Conway (Re), 2016 ONCA 918 at paras. 24-5:

[24] In the case before us, the Board denied Mr. Conway’s request for an adjournment to retain counsel for the sole reason that the hearing date had been designated peremptory. Refusing an adjournment for that reason alone amounted to an error in principle. Although the dictionary definition of peremptory – irreversible, binding, conclusive – suggests that a hearing marked “peremptory” must proceed, our court, sensibly, has held otherwise. In Igbinosun v. Law Society of Upper Canada, 2009 ONCA 484, 96 O.R. (3d) 138, at para. 43, Weiler J.A. wrote:

One of the purposes of making a hearing date peremptory is to further the public interest in the administration of justice by preventing delay and wasted costs. However, judicial discretion must still be exercised depending on the facts and circumstances of each case, as the overarching purpose of marking a date peremptory is to serve the interests of justice. [Footnotes omitted.]

[25] In other words, peremptory in this context does not mean mandatory. It does not remove the Board’s discretion. Although the peremptory designation will be an important consideration in the Board’s decision, the Board must still exercise its discretion by taking into account other relevant considerations, especially any prejudice to the NCR accused from refusing an adjournment.

[25] Mr. Davie’s submissions relating to peremptory designations seem to me to be another remnant of the culture of complacency that has coagulated in the provincial offences courts of the Ontario Court of Justice. Even though “peremptory” may not mean “mandatory” in a strict sense, it does not mean parties should take the designation lightly. It is important for all matters to proceed in a timely fashion – especially matters marked peremptory.

[26] Apart from it being wrong for Mr. Javadi and Mr. Cheng to simply presume that an adjournment would be granted despite the trial being marked peremptory, the main flaw in the Appellant’s claim before this court is that there was no evidence tendered on his behalf. The Appellant filed no affidavit. And while the Appellant attended the hearing of the appeal and was assisted with a Cantonese interpreter, Mr. Davie declined the court’s invitation to call him as a witness. As such, the court has no evidence as to what the Appellant’s expectations were of either Mr. Javadi or Mr. Cheng; no evidence as to what he expected to occur on the trial date of February 8, 2022; no evidence as to what he was told about his required attendance in court on February 8, 2022; no evidence as to when he was told about the error that occurred; no evidence as to any direct or collateral consequences that the Appellant has suffered due to his conviction separate and apart from the fine; and no evidence as to what remedy the Appellant is seeking due to this error having occurred long ago – that is, a reduced fine, a resolution discussion with the prosecutor, or a new trial.

[27] With the record completely lacking in this regard, the court sees no basis to exercise its power under s. 138(1) to direct a new trial to satisfy the ends of justice.

Conclusion

[28] Before concluding, I will state that despite some criticism levied to certain paralegal practices observed in this court, I would be remiss in not indicating that there are a number of paralegals that appear before this court on a regular basis that advocate on behalf of their clients with great preparation and skill. It is expected that this judgment will have little impact on their otherwise competent practices. However, to those paralegal agents who have approached L Court cases with minimal preparation in the past, this judgment should serve as a signal that this court expects a higher level of professionalism moving forward.

[29] For all the above reasons, the appeal is dismissed.

Released: September 7, 2022 Signed: Justice V. Rondinelli