COURT FILE NO.: 571/07

DATE: 20080718

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS, PITT, anD MOLLOY JJ.

B E T W E E N:

MATTHEW JOSEAL IGBINOSUN

Appellant

• and -

THE LAW SOCIETY OF UPPER CANADA

Respondent

Tracey Tremayne-Lloyd and Elyse Sunshine, for the Appellant

Brian Gover and Katherine Hensel, for the Respondent

HEARD at Toronto: May 23, 2008

MOLLOY J. :

REASONS FOR DECISION

A. INTRODUCTION

1Matthew Joseal Igbinosun was called to the Ontario Bar on February 26, 1998. Subsequently, he was accused of sexual assault by three individuals. Criminal charges were laid, but were later stayed on grounds of delay. The Law Society of Upper Canada (“the Society”) conducted an investigation and commenced discipline proceedings against Mr. Igbinosun. A motion by Mr. Igbinosun to dismiss those proceedings for delay was dismissed by a Hearing Panel of the Society on February 27, 2006. The discipline hearing proceeded from February 28 to March 3, 2006 during which time the Society’s evidence was heard. The hearing was then adjourned and resumed in September 2006 at which point the defence case was to start. Counsel for Mr. Igbinosun requested an adjournment, which was refused. Mr. Igbinosun elected not to participate without the assistance of counsel. The Hearing Panel proceeded in his absence and on September 19, 2006 found him guilty of professional misconduct in respect of the three sexual assaults. The next day, on short notice to Mr. Igbinosun and again proceeding in his absence, the Hearing Panel ordered that Mr. Igbinosun be disbarred effective immediately. He was also ordered to pay costs to the Society of $82,042.80. Mr. Igbinosun appealed to the Appeal Panel. By decision dated October 30, 2007, the Appeal Panel dismissed his appeal, except for reducing the cost award.

2Mr. Igbinosun now appeals to this Court from the decision of the Appeal Panel.

B. STANDARD OF REVIEW

3When the Society commences discipline proceedings against one of its members, the decision-maker of first instance is the Hearing Panel, which consists of three members appointed by Convocation of the Society, of which one must be a non-lawyer: s. 49.21(2) of the Law Society Act (“the Act”), R.S.O. 1990, c.L-8.

4A party to a proceeding before the Hearing Panel may appeal any final decision or order of the Hearing Panel to the Appeal Panel, which consists of at least five persons appointed by Convocation, including at least one non-lawyer: ss. 49.32(1) and 49.29(2). A party other than the Society can appeal to the Appeal Panel on any grounds: s. 49.33 of the Act.

5There is a further right of appeal from the Appeal Panel to the Divisional Court. Where the appellant is the member, that right of appeal is unlimited: s. 49.38 of the Act.

6Until recently, it was well-settled law that the standard of review applicable to decisions of law society discipline committees was reasonableness simpliciter: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247. The Supreme Court of Canada stated in Ryan at para 42:

Although there is a statutory appeal from decisions of the Discipline Committee, the expertise of the Committee, the purpose of its enabling statute, and the nature of the question in dispute all suggest a more deferential standard of review than correctness. These factors suggest that the legislator intended that the Discipline Committee of the self-regulating Law Society should be a specialized body with the primary responsibility to promote the objectives of the Act by overseeing professional discipline and, where necessary, selecting appropriate sanctions. In looking at all the factors as discussed in the foregoing analysis, I conclude that the appropriate standard is reasonableness simpliciter. Thus, on the question of the appropriate sanction for professional misconduct, the Court of Appeal should not substitute its own view of the “correct” answer but may intervene only if the decision is shown to be unreasonable.

7Under the previous authorities, the reasonableness standard was applicable not only to questions of mixed fact and law, but also to questions of legal interpretation involving the Society’s constituent statute: Law Society of Upper Canada v. Neinstein, 2007 8001 (ON SCDC), [2007] O.J. No. 958 (Div.Ct.) at para 45; Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982. However, for other questions of law, the Appeal Panel decisions were reviewable on a standard of correctness: Neinstein at para 43.

8In Dunsmuir v. New Brunswick , 2008 SCC 9, the Supreme Court of Canada revisited the appropriate standards of review for administrative tribunals and determined that the two previous standards of patent unreasonableness and reasonableness simpliciter should be merged into “reasonableness”, such that all decisions would henceforth be reviewed on either a correctness or reasonableness standard. In doing so, the Court stipulated that its intent was merely to bring greater simplicity and logic to the exercise and not to change the traditional deference afforded to administrative tribunals by the courts: Dunsmuir at para 48. The Court also held that courts should be guided by existing law as to the appropriate standards of review and specifically noted that a standard of reasonableness was appropriate where an expert tribunal is interpreting the provisions of its home statute: Dunsmuir at para 54.

9As this Court has recently held in Law Society of Upper Canada v. Evans (2008), No. 34276 (Ont.Div.Ct.), the decision in Dunsmuir does not have any effect on the well-established standard for review of decisions from the Society’s Appeal Panel. The Appeal Panel is entitled to deference on its findings of mixed fact and law, determination of penalty and its interpretation of the Act and this Court should only intervene if the Appeal Panel’s decision is unreasonable. However, on questions of law outside that area of expertise, the Appeal Panel is required to be correct. Similarly, the Appeal Panel is required to accord deference to decisions of the Hearing Panel on questions of fact and questions of mixed fact and law. The Appeal Panel is only entitled to intervene if the decision of the Hearing Panel is unreasonable or incorrect in law. The standard of review to be applied by the Appeal Panel in its consideration of the Hearing Panel decision is a question of law and is required to be correct: The Law Society of Upper Canada v. Neinstein at paras 43-44.

10Some of the issues raised in the appeal before the Appeal Panel and in the appeal to this Court relate to the denial of procedural fairness and breach of principles of natural justice. On those issues, the standard of review does not arise. A tribunal is required to conduct its proceedings fairly. A party that is denied procedural fairness or natural justice has not had a fair hearing, and the decision flowing from that hearing must be set aside: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193; Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419, 169 O.A.C. 62 (Div.Ct); Kalin v. College of Teachers (Ontario) 2005 18286 (ON SCDC), 254 D.L.R. (4th) 503; 75 O.R. (3d) 523 (Div.Ct.). at para 9.

C. FACTUAL BACKGROUND

11The relevant facts are well-summarized in the decision of the Appeal Panel and I will essentially reproduce those here, with minor additions and variations.

12The appellant was called to the bar in February 1998. Three charges of sexual assault under the Criminal Code, R.S.C, c. C-34, were made against the appellant by A.F. (July 1999), L.L. and A.M. (July 2001). Neither of the complainants was a client of the appellant but all came in contact with him in his role as a lawyer.

13The appellant was notified on July 17, 1999 that a monitoring file was opened by the Law Society in respect of the 1999 charge. The Law Society launched an investigation under the Law Society Act, R.S.O. 1990, c. L.8, after a complaint of sexual misconduct was filed by A.F. on March 21, 2001. Subsequent complaints were filed with the Society by A.M. (July 4, 2001) and L.L. (October 4, 2001).

14The Proceedings Authorization Committee (PAC) of the Law Society authorized an investigation to proceed on February 13, 2002. At the request of the Crown Attorney, the Society deferred its investigation pending the outcome of the criminal process, as authorized by decisions of PAC on May 22, 2002.

15All criminal charges against the appellant were stayed on December 12, 2003, on the basis of a violation of his s. 11(b) right to trial within a reasonable time pursuant to the Canadian Charter of Rights and Freedoms (Constitution Act, 1982, Schedule B, Part I).

16PAC authorized the closure of the monitoring file shortly after February 2, 2004.

17In March, 2004, the Society was advised by the complainants that they wished to proceed with the complaints.

18The appellant was notified of the investigations on October 15, 2004. No explanation has been provided for this delay in notifying Mr. Igbinosun that the investigation had been re-opened.

19PAC authorized the Notice of Application against the appellant on February 23, 2005.

20Some time after March 2005, the appellant consulted with Mr. Kapoor, who agreed to represent him once there was full and complete disclosure.

21The appellant was granted an adjournment of the proceedings to May of 2005. Due to some miscommunication, the appellant did not appear at the May 6 HMT when a hearing date was set for the week of August 22, 2005. Accordingly, that date was later vacated on consent and the hearing was rescheduled at the June 20, 2005 HMT for the week of October 24, 2005. It was ordered to proceed peremptorily.

22At the HMT on August 29, 2005, the appellant’s counsel, Mr. Kapoor, sought an adjournment of the October hearing date, which was refused. That request was renewed on September 12, 2005, based on fresh affidavit evidence. Mr. Kapoor could not proceed on October 24, 2005 because of a pre-existing commitment (a murder trial). He offered dates in December 2005 and January and February 2006, which were rejected. The hearing date continued to be set for October 24, peremptory to Mr. Igbinosun. As a result, Mr. Kapoor could not act for Mr. Igbinosun.

23Mr. Lawlor was retained to represent the appellant on October 12, 2005.

24On October 24, 2005, the appellant requested and was granted a further adjournment until February 27, 2006, when the matter was to proceed peremptorily. The appellant consented to waive the period between June 22, 2005, and February 27, 2006, in his application for a stay of proceedings for delay. The stay application was heard on February 27, 2006 and dismissed. Written reasons for that decision, with the chair dissenting, were delivered on April 27, 2006.

25Following the dismissal of the stay application, the appellant sought a further adjournment, which was refused. The hearing proceeded on February 28, 2006, and continued until March 3, 2006. The Society completed all of its evidence in support of its case, specifically, the testimony of the three complainants and a psychiatrist with special expertise in dealing with issues of violence against women and sexual assault by persons in positions of power. At the conclusion of the Society’s case, the defence indicated it intended to call evidence. However, the Panel was unable to continue because of other commitments and the case was adjourned.

26A teleconference hearing was set for June 19, 2006, to schedule the continuation date for the hearing of the matter on its merits.

27On June 5, 2006, the appellant’s then counsel, Mr. Lawlor, notified the Tribunals Office of the Law Society that he would be bringing a motion to remove himself as counsel of record. Although Mr. Lawlor had advised Mr. Igbinosun by letter dated May 23, 2006 that he intended to resign as counsel, and urged Mr. Igbinosun to participate personally in the June 19, 2006 teleconference, Mr. Igbinosun did not do so. Mr. Lawlor agreed to represent Mr. Igbinosun on the conference call. The teleconference hearing proceeded on June 19, 2006 and the matter was set down for September 18, 2006 to continue the hearing, peremptory on all parties.

28On July 21, 2006, following a teleconference, the Hearing Panel ordered that Mr. Lawlor be removed from the record. Mr. Igbinosun joined the call late, and was unsuccessful in persuading the Panel to revisit its decision to remove Mr. Lawlor from the record. Mr. Igbinosun also sought to revisit the September 18, 2006 continuation date, but was not permitted to do so at that time. He was required to bring a motion.

29On July 28, 2006, Mr. Igbinosun tried to bring a motion for an adjournment. He was advised that the earliest date available was September 14, 2006. The appellant brought a motion for a four-month adjournment on September 14, 2006, which was heard and dismissed.

30The appellant retained Mr. Miguna on September 15, 2006. At that time, Mr. Miguna’s agreement to act was predicated on obtaining an adjournment as he had previously scheduled matters in the Superior Court for September 18 and 19.

31On Monday, September 18, 2006, at the onset of the hearing, Mr. Miguna attended with Mr. Igbinosun, before the Hearing Panel and made a series of requests for adjournment, all of which were opposed by the Society. His first request was for an adjournment of the hearing to either of the weeks of October 9, 2006 or November 1, 2006. That request was denied. Mr. Miguna then made a request for an adjournment of 48 hours, until the morning of Wednesday September 20, 2006. That request was denied. Mr. Miguna then indicated his willingness to proceed immediately but asked for a recess of the matter at 14:00 to attend a previously scheduled pre-trial and for a continuation the following day. That was also denied. Mr. Miguna then removed himself from the record and left. Mr. Igbinosun was directed to proceed.

32At this point, Mr. Igbinosun did not have any of the files with him. He advised the Panel that he had intended to give evidence himself and to call other viva voce evidence. The Hearing Panel recessed until 14:00 to permit the appellant time to obtain materials from his lawyer’s office. When the appellant returned, he stated he did not feel competent to represent himself and would not be participating further in the hearing. He indicated that he would be seeking judicial review of the matter. The appellant was telephoned and faxed that the matter would be proceeding the next morning.

33The Hearing Panel reconvened at 10:00 on September 19, 2006. Mr. Igbinosun did not attend. After hearing submissions from the Society, the Hearing Panel made its decision, with oral reasons, finding Mr. Igbinosun guilty of professional misconduct for having sexually assaulted all three complainants.

34The Hearing Panel decided to proceed immediately to the determination of penalty. Counsel for the Society had not anticipated reaching the penalty hearing at this point and advised the Panel that the Society had intended to rely upon victim impact statements from the complainants and had not provided Mr. Igbinosun with the required 10-day notice, nor had the Society provided Mr. Igbinosun with its bill of costs. The Hearing Panel instructed counsel for the Society to give as much notice as possible to Mr. Igbinosun.

35A fax was sent to the appellant at 17:12 pm on September 19, 2006 containing notification of the finding against him, the Society’s intention to call victim impact statements which were enclosed and that the matter would be proceeding to penalty the next day. A bill of costs was not provided. A second notice was faxed to the appellant at 12:03 on the morning of September 20, 2006, enclosing a third statement that had not been finalized the night before and notice that the Society would be seeking costs, although no bill of costs was included. At 12:54 that same day all of these materials were also personally served on Mr. Igbinosun.

36The Hearing Panel reconvened at 13:20. The appellant did not attend. The Panel recessed until 14:00 to permit the appellant to attend. He did not appear. Counsel for the Society advised the Panel that Mr. Igbinosun told her he could not get to the hearing by 14:00, without providing reasons. The Hearing Panel again proceeded in his absence.

37The Hearing Panel accepted the submission of the Society that the content of the victim impact statements had been disclosed to Mr. Igbinosun previously. The Hearing Panel held that it was in the interest of justice to dispense with the notice provisions and accepted the victim witness statements into evidence. Based on that evidence and the submissions of the Society, the Hearing Panel ordered that the appellant be disbarred and pay costs in the amount of $82,042.80.

38On October 13, 2006, the appellant was granted a stay of the Order of the Hearing Panel pending the hearing of the appeal by the Appeal Panel. This was subsequently extended by the Appeal Panel to the earlier of the delivery of its decision or October 31, 2007.

39One of the issues raised by Mr. Igbinosun at the Appeal Panel stage was inadequate representation by counsel before the Hearing Panel. Because of that allegation, the Society obtained an order that the appellant’s former counsel, Mr. Lawlor, attend an examination with respect to the advice and representation he had provided to the appellant in the disciplinary proceedings. The examination and cross-examination took place on June 21 and 22, 2007 and was before the Appeal Panel, along with the evidence that was before the Hearing Panel.

40The appeal proceeded on June 26 and 27 and August 31, 2007. Mr. Igbinosun was represented by Mr. Miguna on the appeal. The decision of the Appeal Panel was released on October 30, 2007. The Appeal Panel upheld the decision of the Hearing Panel, except that it reduced the quantum of costs. The issues before the Appeal Panel were: inadequacy of notice at various stages; failure to make timely disclosure; denial of the right to be heard and the right to counsel; ineffective assistance of counsel; excessive nature of the costs award; and bias on the part of the Hearing Panel. The Appeal Panel noted that Mr. Igbinosun had not sought to directly appeal the decision of the Hearing Panel dismissing his motion for a stay based on delay, but rather had sought to rely upon that decision as support for his argument that the Hearing Panel was biased. The Appeal Panel found that the appellant had failed to establish bias. Although, strictly speaking, the merits of the delay motion was not before the Appeal Panel, the Panel did deal with it and found that a stay was not warranted in the circumstances.

D. ISSUES

41This appeal raises three main issues:

(i) whether the Appeal Panel erred in upholding the Hearing Panel’s decision that the discipline proceedings should proceed not withstanding the delay in getting to the hearing;

(ii) whether the findings of professional misconduct made by the Hearing Panel on September 19, 2006 are tainted by breaches of procedural fairness and natural justice;

(iii) whether the penalty imposed by the Hearing Panel must be set aside, either because of procedural unfairness or because it is harsh and unreasonable.

42I will deal with these issues in reverse order.

E. PENALTY

43The content and extent of a tribunal’s obligation to act fairly will vary depending on the circumstances. However, it is well recognized that where the livelihood of an individual is at stake, there is a requirement for heightened procedural safeguards. As was stated by the Supreme Court of Canada in Kane v. University of British Columbia, 1980 10 (SCC), [1980] 1 S.C.R. 1105 at 1113:

A high standard of justice is required when the right to continue in one’s profession or employment is at stake . . . A disciplinary suspension can have grave and permanent consequences upon a professional career.

44The Appeal Panel made two inconsistent rulings on the issue of whether the Hearing Panel breached principles of natural justice at the penalty stage. At para 46 of its Reasons, under the heading “Notice”, the Appeal Panel held:

The Hearing Panel proceeded to the penalty phase in the absence of the appellant. It is clear on the record that the elapsed time between the end of the finding of misconduct with notification to the appellant and the onset of the penalty phase was less than half a working day. The Society noted that the rapid progression led to its not meeting the notice requirements for provision of the victim impact statements or the bill of costs to the appellant. As noted below in the discussion of the right to be heard in the penalty phase, there was a clear breach of the principles of natural justice. See Sussman Mortgage Funding Inc. v. Ontario (Superintendent of Financial Services), [2005] O.J. No. 4806 (ON.C.A.)

Emphasis added.

45Later, as part of its analysis of the “right to be heard” issue as it related to the penalty stage, the Appeal Panel correctly set out the applicable law, stating at para 77 of its Reasons:

The duty of fairness has recently been expanded by the Ontario Court of Appeal to consider the implications of the denial of the right to speak to penalty. In the case of Sussman Mortgage Funding Inc. v. Ontario (Superintendent of Financial Services), [2005] O.J. No. 4806 (C.A.), the Court of Appeal in a remarkably brief decision upheld the Divisional Court’s decision holding that an individual should be provided with the opportunity to present evidence and make submissions on penalty, particularly when the implication is the possibility of the revocation of a licence. The error in law was based upon a failure to: (a) give the appellant an opportunity to make submissions as to penalty; (b) consider alternatives that could have been imposed; and (c) review or consider the penalties imposed in similar cases.

46Inexplicably, the Appeal Panel then went on to hold that the appellant had received adequate notice of the penalty hearing, stating at para 78 of its Reasons:

The appellant in this case was provided with notice of the Hearing Panel’s intention to proceed to a full disposition of the matter prior to his abandonment of the case on September 18, 2006. The two-day notice was in contrast to the Sussman context where no notice was provided. Finally, consideration must be given to the fact that the date was set peremptory on the appellant meaning that he should have been prepared to lead all components of his case, including the penalty portion, on September 18, 2006.

47I find it impossible to reconcile paragraphs 44 and 78 of the Appeal Panel’s Reasons. At para 44, the Panel noted that the elapsed time from the notification to the applicant of the findings against him and the onset of the penalty phase “was less than half a working day” and held this to be “a clear breach of the principles of natural justice”, specifically referring to the later portion of the Reasons dealing with the right to be heard and the decision in Sussman. The Appeal Panel had also found, at para 76, that on September 19, 2006, counsel for the Society was not ready to proceed with the penalty stage because she had not anticipated it would be reached by then and had not delivered, or indeed even prepared, the victim impact statements and bill of costs on which the Society intended to rely. However, at para 78, the Panel found there had been two days notice of the penalty hearing, that this was adequate notice, and that the appellant should have been prepared to proceed with all components of his case, including penalty, on September 18, 2006 in any event, because the date was peremptory to him.

48In my opinion, the Appeal Panel was right the first time. There was a clear breach of natural justice in proceeding to the penalty phase without adequate notice to Mr. Igbinosun.

49It was not reasonable to expect that the penalty phase would be proceeding at the September 18 hearing, immediately following the completion of the defence case. Not even counsel for the Society expected that to occur. The September 18 date was peremptory to both parties, not just to Mr. Igbinosun, and yet counsel for the Society was not ready to proceed with the penalty phase on September 19. Indeed, without an indulgence from the Panel waiving the 10-day notice requirement with respect to the victim impact statements, the earliest the Society could have been ready to proceed was September 29.

50There was no urgency requiring the penalty phase to proceed less than 24 hours after the misconduct findings. The Appeal Panel itself must have recognized that when it stayed the penalty imposed pending the appeal hearing. The type of evidence required at the penalty phase is completely different from the evidence the defence would be expected to call to address the merits of the accusations of misconduct. Usually, such evidence consists of character witnesses both from the profession and from the general community, and often includes expert witnesses such as doctors or psychiatrists. Typically, months (not hours) are required to adequately prepare for a penalty hearing with the kind of serious consequences Mr. Igbinosun was facing. The notice provided in this case was so woefully inadequate as to constitute no notice at all.

51Mr. Igbinosun was denied any meaningful opportunity to be heard on the penalty to be imposed against him. This was a very serious matter, with potentially dire consequences for Mr. Igbinosun. There was no demonstrated prejudice to the Society if the penalty phase were to proceed at its normal pace with full notice to Mr. Igbinosun and a meaningful opportunity to prepare, present evidence and make submissions. Proceeding with the imposition of penalty in this manner was a clear breach of natural justice and the penalty imposed cannot stand.

F. SEPTEMBER 18, 2006 : REFUSAL OF ADJOURNMENT

52The Appeal Panel’s Reasons with respect to procedural fairness at the September 18, 2006 hearing are also perplexing. Nowhere in its decision does the Appeal Panel ever analyze whether the refusal of an adjournment on September 18, 2006 constituted a breach of natural justice or set out its conclusion in that regard.

53The closest the Panel comes to making a finding on this point is at para 79 of its Reasons. In that paragraph, the Appeal Panel dealt with the appellant’s arguments that he had been denied the right to counsel. The Appeal Panel noted that, “On more than one occasion, the appellant found himself in the unenviable position of having located counsel who could not accommodate the mandatory date set by the HMT or the Hearings Panel.” The Appeal Panel then considered the applicable law and stated that the appellant had failed to demonstrate that reasonable efforts to retain counsel had been stymied by the peremptory nature of the hearing dates. The Appeal Panel then held (at the end of para 79):

The Appeal Panel finds that the denials of adjournments identified by the appellant, save for the instance of September 18, 2006, do not demonstrate a breach of natural justice.

(Emphasis added)

54The only logical inference from the exception made in para 79 for the September 18, 2006 denial of an adjournment is that the Appeal Panel was of the view that in that one instance the denial of an adjournment request constituted a denial of natural justice. Some support for that conclusion can also be found at para 60 in which the Appeal Panel, dealing with whether Mr. Igbinosun could be deemed to have “abandoned” his case on September 18, referred to the fact that the Hearing Panel was faced with a party it viewed as having requested multiple adjournments, but then stated:

However, on this specific date, the appellant demonstrated a clear intention to proceed. His counsel was flexible and attempted to find various ways to accommodate the exigencies of the schedule. The appellant was prepared to go ahead but did not wish to do so in the absence of counsel.

55The above quoted sentences, however, are immediately followed by the statement, “At the risk of being repetitive, there is no merit to the implicit position of the appellant that he was compelled to abandon the matter in the circumstances.” With respect, in my view, that statement is a complete non sequitor given what preceded it.

56The Appeal Panel also examined the issue of the denial of adjournment requests under the heading “Right to be Heard” at paras 49 to 56 of its Reasons. The Panel stated (at para 49) that it had “chosen to focus on the September 18, 2006 request and [would] discuss the cumulative impact of the denial of the other adjournment requests in a separate section on the right to counsel” (i.e. para 79 of the Reasons). The Appeal Panel then proceeded to accurately set out the legal principles with respect to adjournments and natural justice (paras 50 to 52) and to summarize (at para 53) the oral reasons given by the Hearing Panel for refusing the adjournment.

57At para 54, the Appeal Panel noted that the appellant’s own conduct “did contribute to the denial of some of the adjournment requests”. Then, at para 55, it summarized the appellant’s argument that the September 18, 2006 was very significant because the result was the summary recusal of Mr. Igbinosun’s counsel and the appellant’s decision not to proceed in the absence of legal advice.

58The Appeal Panel then concluded this section of its analysis by stating that matters of scheduling and adjournment requests involve an exercise of discretion and cited this Court’s decision in Kalin for the proposition that the test is whether the Hearing Panel took into account any legally impermissible considerations or otherwise acted arbitrarily.

59That is where the analysis on this point ends. There are no findings as to whether the Hearing Panel acted judicially in refusing the adjournment or whether in all of the circumstances this constituted a breach of natural justice. The next reference to the issue is in para 79 (Right to Counsel) where it would seem the Appeal Panel was of the view that, while the denial of other adjournment requests had no impact on Mr. Igbinosun’s right to counsel, the refusal to adjourn on September 18, 2006 constituted a breach of natural justice. One is left with the impression that the Appeal Panel had decided this issue in Mr. Igbinosun’s favour.

60However, again inexplicably, in the final sentence of the penultimate paragraph of its reasons (para 90), the Appeal Panel stated, “In actuality, the Appeal Panel found that he [Mr. Igbinosun] was largely the author of his own misfortune and that the initial hearing was indeed fair in all respects.”

61I find the Appeal Panel’s Reasons on this point to be mystifying.

62Nevertheless, to the extent the Appeal Panel’s Reasons constitute a finding that there was no denial of natural justice by the Hearing Panel in refusing the adjournment on September 18, 2006, I find the Appeal Panel erred.

63The September 18, 2006 hearing date was set without Mr. Igbinosun’s input, at a time when the Hearing Panel knew Mr. Lawlor intended to get off the record. I accept there is some fault attributable to Mr. Igbinosun for not participating in the teleconference and/or providing dates when he would be available to continue with the hearing. However, at this point, Mr. Lawlor was still on the record and Mr. Igbinosun had not consented to his removal. He clearly had not yet retained other counsel to represent him. He had been represented by counsel throughout the process before the Society and in the criminal proceedings against him. The Hearing Panel ought to have recognized that Mr. Igbinosun would be faced with the difficult task over the summer months of finding and retaining a lawyer who was prepared to step into a hearing already half-completed with a fixed and peremptory continuation date of September 18, 2006.

64When Mr. Igbinosun did have an opportunity to address the issue with the Panel on the occasion of Mr. Lawlor’s removal from the record in July, 2006, and stated that he could not be ready to proceed for the September hearing date, he was advised he would have to bring a motion. The first date available to the Panel for that motion was only four days prior to the date set for the hearing. Again, this was not of Mr. Igbinosun’s doing. He brought his motion at the earliest opportunity. His motion was denied.

65Whatever may have been Mr. Igbinosun’s conduct on prior occasions, it is clear from the Appeal Panel’s own Reasons, as well as from the transcripts of the hearing before the Hearing Panel, that on September 18, 2006, Mr. Igbinosun was prepared to proceed and had a lawyer willing to represent him. His lawyer had two brief prior commitments, but was prepared to work around those and to proceed immediately, with short recesses to accommodate his previously scheduled court appearances. As the Appeal Panel found, on September 18, Mr. Igbinosun “demonstrated a clear intention to proceed” and his counsel was “flexible” in attempting to accommodate his previous commitments with this hearing date.

66The right to be represented by counsel is an important one, particularly where the issues are serious and the consequences may involve the loss of one’s livelihood and the ability to practice a profession: Ha v. Canada (Minister of Citizenship & Immigration), 2004 FCA 49, [2004] 3 F.C.R. 195, 236 D.L.R. (4th) 485 (F.C.A.); Wark v. Green (1985), 1985 3045 (NB CA), 23 D.L.R. (4th) 594 (N.B.C.A.); Simpson v. Chiropractors’ Assn. of Saskatchewan (2001), 2001 SKQB 535, 215 Sask.R. 40 (Q.B.). It was not reasonable to conclude that Mr. Igbinosun’s decision not to proceed without counsel constituted voluntary abandonment of his case. On the contrary, Mr. Igbinosun specifically advised the Hearing Panel that he could not proceed without counsel, and stated that he would be seeking judicial review of its decision to refuse the brief adjournment requested by his counsel.

67Neither the Reasons of the Appeal Panel, nor the reasons of the Hearing Panel, identify any prejudice that would be caused if the adjournment requested had been granted. The Society’s case had already been completed. All that was left was the case for the defence. There had been considerable delay already in the proceeding, but a good portion of that was attributable to the Society. In any event, there was no indication that the minimal delay now being requested would have had any impact whatsoever on the case. Reference was made by both Panels to the seriousness of the allegations, which cannot be denied. However, equally compelling is the seriousness of the consequences for Mr. Igbinosun of being required to address such allegations without legal counsel, including the very difficult task of testifying himself in respect of those charges.

68In my opinion, the Hearing Panel failed to act judiciously in refusing the adjournment and in particular failed to balance the public interest in having the hearing concluded expeditiously against the very serious prejudice to Mr. Igbinosun of being forced to proceed in these circumstances without counsel. To the extent the Appeal Panel found to the contrary, it erred in law by failing to complete its analysis of the issue and failing to provide any reasons for its decision dismissing this aspect of the appeal.

69Accordingly, the decision of the Hearing Panel must be quashed.

G. DELAY

70Counsel for the Society argued in this Court that Mr. Igbinosun’s only right of appeal is from the Appeal Panel and that since Mr. Igbinosun did not argue before the Appeal Panel that the Hearing Panel erred in dismissing his delay motion, in his appeal before this Court he should not be permitted to raise this issue.

71There is considerable merit in that argument. The statutory right of appeal to this Court is only from decisions of the Appeal Panel. At para 80 of its decision, under the heading “Delay”, the Appeal Panel noted that the appellant had chosen not to raise the merits of the decision of the Hearing Panel on delay, but rather to use that decision solely as a demonstration of bias on the part of the Hearing Panel. The Appeal Panel dismissed the appellant’s arguments with respect to bias, and that aspect of the Appeal Panel’s decision is not challenged in this Court. Had the Appeal Panel ended its consideration of the delay issue there, that would be the end of the matter.

72However, the Appeal Panel, in paragraphs 81 to 83 proceeded to consider the issue of delay on its merits, concluding, based on the Supreme Court of Canada’s decision in Blencoe v. British Columbia (Human Rights Commission) (2000), 2000 SCC 44, 190 D.L.R. (4th) 513, that there was no evidence of actual prejudice from the delay such as something affecting the hearing process and the capacity to give good answer and defence. The Appeal Panel held (at para 83, “The form of impact identified by the appellant which included prejudice to his financial affairs, family and societal and professional life were considered in Blencoe to be insufficient.” The Appeal Panel recognized that these proceedings were stressful for the appellant, but ruled that a stay “is not warranted” because of “the public interest in having serious matters such as sexual misconduct addressed by regulatory bodies”.

73It seems to me that since the Appeal Panel purported to rule on the issue of delay, even though it was not required to do so, it is open to Mr. Igbinosun to appeal from the Appeal Panel’s findings in that regard.

74The Appeal Panel makes no reference to the decision of the Hearing Panel on the issue of delay, but rather merely enters into its own analysis and makes its own conclusion. It ought not to have done so. The Hearing Panel’s decision on delay was a question of mixed fact and law and ought to have been reviewed by the Appeal Panel on a standard of reasonableness, rather than correctness, as the Appeal panel appears to have done.

75However, the majority of the Hearing Panel determined that a stay was not warranted, which is the same conclusion reached by the Appeal Panel, so the result would have been the same even if the Appeal Panel had applied the appropriate standard. The Appeal Panel’s Reasons, although brief, demonstrate that the Appeal Panel was aware of the correct legal test and addressed the relevant factors to be taken into account. I see no basis for interfering with its conclusion.

76Even if I were to take the further step of considering the Hearing Panel’s Reasons on this point, in light of the Appeal Panel’s failure to do so, I would come to the same conclusion. This was a close case, as is amply demonstrated by the compelling reasons of the Hearing Panel Chair in dissent. However, I see no error in the reasoning of the majority of the Hearing Panel. It considered the correct principles, weighed the relevant factors and exercised its discretion in favour of a determination of the complaints on their merits rather than dismissing for delay. A rational case can be made for the opposite conclusion, again as is demonstrated by the dissenting Reasons. However, it is not the function of this Court to choose which of the two sets of reasons it prefers. The decision of the majority of the Hearing Panel was one of a reasonable range of options open to the Panel and, as such, is entitled to deference: Dunsmuir at para 47.

77The test to be applied by a court in determining whether criminal charges should be stayed for delay under s. 11(b) of the Charter of Rights and Freedoms is not the same as that which is applied by an administrative tribunal such as the Hearing Panel in a discipline proceeding. The Hearing Panel was not bound by the decision of the trial judge staying the criminal charges, nor was there any error by the Hearing Panel in failing to place any weight on the factual findings of the trial judge in that context. The Hearing Panel was required to make its own findings of fact with respect to the issue of delay, based on the evidence before it and the in the context of its own statutory obligations. The fact that the trial judge in the criminal proceedings reached a different conclusion is not relevant to the Hearing Panel’s deliberations, nor is it relevant to whether or not the Hearing Panel’s decision is reasonable.

78Accordingly, I would not interfere with the decision of the Appeal Panel on the delay issue.

H. CONCLUSIONS AND ORDER

79The findings of misconduct by the Hearing Panel and the penalty imposed by the Hearing Panel are set aside. The appellant is entitled to a new hearing on those issues. It might have been preferable to remit this matter to the original Hearing Panel to hear the defence evidence and submissions, so as to avoid the necessity of the complainants being required to testify again. However, counsel for the Society advises that due to the passage of time, the Hearing Panel as it existed in 2006 cannot be reconstituted.

80This is the type of case in which findings of credibility will be of pivotal importance. It is crucial, therefore, that the ultimate decision-maker have the benefit of hearing the evidence of the complainants viva voce, rather than simply reviewing the transcripts of the testimony they have already provided. Therefore, this matter must be remitted to a newly constituted Hearing Panel and that Panel must start afresh.

81Should Mr. Igbinosun choose to present to the new Panel a further application to stay these proceedings for delay, the Hearing Panel is bound by the findings of the initial Hearing Panel with respect to the effects of the delay up to, but not after, February 27, 2006.

82If costs cannot be resolved between counsel, brief written submissions may be addressed to the Court within 30 days of the release of this decision.

MOLLOY J.

JENNINGS J.

PITT J. (dissenting):

83I concur with the reasons for judgment of Justice Molloy except for those parts dealing with the issue of delay. I would have ordered a stay.

84As noted in paragraph 15 of the reasons of Molloy J:

“All criminal proceedings against the appellant were stayed on December 12, 2003 on the basis of a violation of his Section (11) right to a trial within a reasonable time pursuant to the Canadian Charter of Rights.

85In the decision of Nadeau J of the Superior Court on December 12, 2003, he calculated that “as at the trial date, four years and four months had passed from the time of the oldest charge, and two years and one month had passed from the time of the most recent charge”. The discipline hearing commenced on February 28, 2006 some two years and two months after the criminal charges were dismissed as noted above.

86Nadeau J found that the prosecutions were not complicated and the unreasonableness of the delay was not subject to dispute.

87On the issue of prejudice, Nadeau J found:

59 The fourth factor is the prejudice, if any, to the accused. This factor addresses only the prejudice that arises from the delay in the proceedings and is not the inherent prejudice that accompanies a criminal charge. Prejudice to an accused may be inferred where there is long and unreasonable delay from arrest to trial. In any case of lengthy delay, but particularly in sexual assault allegations, there exists the very real potential prejudice of memories of the witnesses fading with time, even adult complainants such as here, thus jeopardizing an accused’s rights to a fair trial. In addition to the inferred prejudice from excessive delay, there is evidence presented here of actual prejudice. The applicant is a lawyer practicing in the Toronto region. Throughout much of these proceedings against him, he has been subject to very strict conditions of bail. He has been the subject of media attention, including a new release issued by the Toronto Police Service. Mr. Igbinosun has been incarcerated on three separate occasions during these proceedings totalling at least 38 days in pre-trial detention. (my emphasis) I am also satisfied on the evidence presented that there is actual prejudice occasioned on the applicant caused by the unavailability of S.S. pertaining to Counts Nos. 4 and 5 of the Indictment.

60 When this Court considers the nature of the charges, the circumstances in which they allegedly were committed, Mr. Igbinosun’s age, family responsibilities, professional background and his lack of previous antecedents, I have no doubt that he has suffered significant prejudice. As recognized by Justice Cory in Askov, Joseal Igbinosun has felt the “exquisite agony” from July 5, 1999 and, in my view, that has been enhanced to this day more than 53 months later.”

I add to this last observation, that there has been no suggestion of criminal conduct since the last offence.

88Probably on the basis that the Law Society is not bound by the Charter, or by the findings of Nadeau J., the Tribunal appeared to have attached no particular significance to the criminal courts findings or reasons.

89While the Canadian Charter of Rights and Freedoms (Constitution Act, 1982, Schedule B, Part I) does not bind the Law Society, Charter values, which reflect fundamental societal values, must always be taken into consideration. As McIntyre J. stated in Dolphin Delivery, 1986 5 (SCC), [1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174 at para. 39:

…where no act of government is relied upon to support the action, the Charter will not apply. I should make it clear, however, that this is a distinct issue from the question whether the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution. The answer to this question must be in the affirmative.

90In considering the effect that delay has had on these proceedings, and the role that Charter values play in assessing the common law basis for a stay in this case, the Supreme Court’s admonition in Hill v. Church of Scientology, 1995 59 (SCC), [1995] 2 S.C.R. 1130, 126 D.L.R. (4th) 129, is particularly relevant. Justice Cory wrote that, “…Courts have traditionally been cautious regarding the extent to which they will amend the common law. Similarly, they must not go further than is necessary when taking Charter values into account. Far-reaching changes to the common law must be left to the legislature.”

91This is a unique case in that there does not appear to be any case in which a related charge has been brought before an administrative Tribunal so long after a Superior Court stayed the criminal charge for delay having made a finding of significant prejudice. The granting of a stay in these circumstances would not represent the sort of ‘far reaching’ modification of the common law that Cory J. referred to in Hill.

92There is some evidence that the Law Society had a change of heart about closing the files shortly after the dismissal of the criminal charges, only after a lawyer representing the complainants in a civil matter contacted the Law Society about the civil proceedings. Contact with counsel in the civil litigation clearly seemed to have mitigated the Society’s well-documented concern about the legal implications of such long delay.

93The Alberta Court of Appeal in Stinchcombe v The Law Society of Alberta 2002 ABCA 106, [2002] A.J. No. 544, stayed charges where the delay was approximately seven to eight years after the complaint was filed, and prejudice established.

94It is for all these reasons that I find the simple question posed by Justice Bastarache in Blencoe v British Columbia (Human Rights Commission), [2000] S.C.R. 307 at par 105, namely:

“Did the Tribunal on the facts of the particular case act fairly toward the person claim to be aggrieved?”

must be answered in the negative as did the chairman of the hearing panel in his dissenting reasons.

95I believe and find that the Tribunal’s exercise of discretion in denying the stay on the grounds of delay was unreasonable. I would have stayed the proceedings.

PITT J.

Released: July 18, 2008

COURT FILE NO.: 571/07

DATE: 20080718

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

jennings, pitt, AND molloy JJ.