COURT FILE NO.: 70/07

DATE: 20071121

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

HOILETT, GANS AND SWINTON JJ.

B E T W E E N:

MARY MARTHA COADY

Appellant

• and -

THE LAW SOCIETY OF UPPER CANADA

Respondent

In Person

J. Thomas Curry and

Jaan Lilles, for the Respondent

HEARD at Toronto: November 21, 2007

swinton J.: (Orally)

1The appellant has brought a motion for leave to introduce fresh evidence so that she can compel attendance of R.C.M.P. officers to give evidence regarding offshore accounts of certain individuals. This evidence does not pass the test for the introduction of fresh evidence, as the proposed evidence is not relevant to the matter before us - namely, whether Cumming J. erred in finding that the appeal should be quashed because the decision appealed from is interlocutory in nature.

2Therefore, as the proposed evidence could not affect the decision of Cumming J. or our decision, the evidence is inadmissible and the motion is dismissed.

3The appellant has brought a motion pursuant to s.21(5) of the Courts of Justice Act, R.S.O. 1970, c.C.43 to set aside the order of Cumming J., dated February 16, 2007. Cumming J. quashed the appellant’s appeal to this Court because her appeal was from an interlocutory decision – namely, the Hearing Panel’s decision to recuse itself for reasonable apprehension of bias and the Appeal Panel’s decision to quash her appeal of that decision.

4Pursuant to s.49.38 of the Law Society Act, R.S.O. 1990, c.L.8, an appeal lies to this Court from a final decision or order of the Appeal Panel if the Appeal Panel’s final decision or order was made on an appeal from a decision or order of the Hearing Panel under s.31(3).

5An appeal may be quashed when it is manifestly devoid of merit (see Schmidt v. Toronto Dominion Bank (1995), 1995 3502 (ON CA), 37 C.P.C. (3d) 383 (C.A.) at paragraph 6).

6The appellant has not shown that Cumming J. erred in concluding that the decision appealed from is interlocutory in nature. The cases relied on with respect to a mistrial do not assist in determining whether the decision appealed in this case is interlocutory. The motions judge had discretion whether to hear the motion to quash or refer it for consideration by the panel.

7In our view, there is no basis to set aside his order. Therefore, the motion to vary is dismissed.

HOILETT J.

8We are of the view that costs in the amount of $3,000 is not unreasonable and is so ordered.

SWINTON J.

HOILETT J.

GANS J.

Date of Reasons for Judgment: November 21, 2007

Date of Release:

COURT FILE NO.: 70/07

DATE: 20071121

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT