COURT FILE NO.: 571/07
DATE: 20071206
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Matthew Joseal Igbinosun, Appellant
-and-
The Law Society of Upper Canada, Respondent
HEARD: December 5, 2007;
BEFORE: Lane, J.
COUNSEL: Tracey Tremayne-Lloyd and Elyse Sunshine, for the Appellant;
Brian Gover and Katherine Hensel, for the Respondent.
E N D O R S E M E N T
[1] This is a motion brought by the appellant to stay the execution of the penalty of disbarment imposed upon him by the respondent Society following discipline proceedings pending the hearing of his appeal to this court which is scheduled for hearing on March 25th, 2008.
[2] The Society opposes the stay, arguing primarily that there is no serious issue to be tried on the appeal because the Appeal Panel applied the test of correctness to the Hearing Committee’s decision to disbar. Since, it was submitted, the only issue on the appeal will be whether the Appeal Panel correctly identified and applied the Standard of Review, and the one the Panel used is the most stringent, there is no reasonable expectation of success on the part of the appellant. The Society also argues that the appellant does not meet the other tests: irreparable harm and the balance of convenience, either. The argument is founded upon the proposition that the review by this court, being the second appellate review, is strictly confined to the Standard of Review issue. I accept that the case law so suggests in any review of the merits of the decision. However, the main issue which is raised in this appeal is whether the appellant was accorded procedural fairness in the hearings conducted by the Society.
[3] Where the issue is one of procedural fairness, the case law instructs us that the pragmatic and functional analysis is not required: rather the issue is whether the appellant was, or was not, accorded procedural fairness. As this court held in Kalin[^1]:
Every Tribunal is entitled to control its own procedure and will be accorded deference on matters requiring an exercise of discretion, such as matters of scheduling or adjournment requests. However, where there has been a breach of natural justice or procedural unfairness, it is not necessary to engage in an analysis of the appropriate standard of review. Decisions which do not comply with the rules of procedural fairness and natural justice cannot stand: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Gismondi v. Ontario (Human Rights Commission), [2003] 169 O.A.C. 62 (Div. Ct.).[^2]
[4] The content of the requirement for procedural fairness varies with the circumstances, but there is general agreement in the case law that proceedings involving the loss of a person’s right to earn a livelihood attract the highest level of fairness.
[5] The record before the tribunals below, now before this court, reveals incidents of potential unfairness to the appellant, who, for reasons which are in dispute, has never had a full hearing on the merits of his case. He was denied an adjournment when he had counsel in the hearing room ready to represent him if there could be a brief delay, for a hearing which was scheduled by the Society after it had been informed that his former lawyer intended to resign the brief. The Society insisted on proceeding on February 27, 2006 despite the inability of his new lawyer to represent him on this arbitrarily scheduled day and in the absence of any evidence of prejudice to the Society or the public by reason of the requested short delay. The Society had known of the allegations against him and had opened a file to monitor them in 1999. It had shown no sense of urgency in the intervening years. The Appeal Panel had itself granted a stay of the original order pending the hearing of the appeal to it. The Society now submits that the correspondence between the appellant and his former counsel, obtained since that order, shows he made a concerted effort to delay the hearing and lied in the process. That correspondence may hurt his case but his counsel demonstrated in submissions that there is an alternative analysis possible for some of it. It is not for me to decide these issues, but only to note their existence.
[6] In the circumstances, I am unable to accept the submissions of the Society that there is no realistic possibility of success by the appellant on this appeal. I find there is a serious issue of procedural fairness to be argued on the appeal. (I do not mean to exclude other possible arguments).
[7] Nor do I accept the submission that the appellant’s continued practice of law in the interval represents a danger to the public interest. There is no question raised of incompetence, nor of misappropriation of trust funds or the like. The original issues were allegations of serious personal misconduct in relation to three female persons who came in contact with him, not as clients, but in his role as lawyer in 1999 and 2001. He was charged with criminal offences as a result, but they were stayed in December 2003 as a result of delay sufficient to constitute a breach of his Charter rights under section 11(b). There is no suggestion of any repetition of these sorts of offences since those I have referred to. Given his present precarious situation, it seems unlikely that there will be any risk of repetition. Against this must be balanced the fact that immediate enforcement of the order under appeal will shut off the flow of income to the appellant and likely destroy his practice. The balance of convenience favours a stay.
[8] It was submitted that there was no irreparable harm because the charges had already become public knowledge; indeed the appellant has disclosed his disbarment to at least some of his clients. Nevertheless, I do not agree that no further harm will come to him from his being put out of business between now and March 2008. Once dissipated to other lawyers, his clientele will be very hard to regain and his reputation inevitably further damaged. In my view, this would be irreparable harm.
[9] For these reasons, I am of the opinion that it is in the interests of justice that a stay should be granted as asked pending the decision of this court in the pending appeal. Costs reserved to the panel.
Lane, J.
DATE: December 6, 2007
[^1]: Kalin v. Ontario College of Teachers (2005) 2005 18286 (ON SCDC), 75 O.R. (3rd) 523 at 529-30
[^2]: See also: London (City) v. Ayerswood Development Corp. (2002) 2002 3225 (ON CA), 167 O.A.C. 120 (C.A.)