COURT FILE NO.: 335/08

DATE: 20080718

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

MARY MARTHA COADY

Mary Martha Coady, in person

Applicant

• and -

THE LAW SOCIETY OF UPPER CANADA

J. Lilles, for the Respondent

Respondent

Heard: July 16, 2008

Archibald J.

REASONS FOR DECISION – DENYING THE APPLICANT’S STAY

1This is a motion by the Applicant, Martha Coady, to stay the discipline proceedings currently before the Hearing Panel of the Law Society of Upper Canada pending the disposition of her Application for Judicial Review commenced on June 30, 2008.

2The procedural history of this case is lengthy and involved, spanning numerous hearings and motions before various adjudicators and courts over a period of almost eight years. Those portions of the proceedings relating to the present disciplinary hearing and relevant to the present application are discussed below.

3The present discipline proceedings against Ms. Coady were commenced on November 26, 2007, and have been in progress for the past eight months, over the course of some thirty hearing dates. This is the second hearing of these allegations after a previously constituted Hearing Panel recused itself in 2006.

4At the outset of the current hearing before the Panel, Ms. Coady brought motions to stay the proceedings as an abuse of process and for want of jurisdiction on the part of the Law Society. The jurisdiction motion was heard December 20, 2007 and was dismissed by the Panel on February 26, 2008.

5On March 4, 2008, Ms. Coady delivered a Supplementary Notice of Motion concerning a number of issues, including allegations of conflict of interest leading to a reasonable apprehension of bias on the part of the prosecution and Panel, and a further request to stay the proceedings. On June 10, 2008, the Hearing Panel released its reasons for decision dismissing Ms. Coady’s motion on all grounds.

6Ms. Coady delivered a Notice of Appeal in respect of the Hearing Panel’s decision dismissing her jurisdictional motion. On June 16, 2008, this appeal was quashed by the Appeal Panel on motion by the Law Society. I understand that this decision is presently also under appeal to the Divisional Court. Ms. Coady advised me that she filed her Notice of Appeal last week.

7All of the evidentiary portions of the hearing before the Panel were concluded on July 7, 2008. The Law Society filed its closing submissions on July 11, 2008. The only remaining steps in the proceeding are for Ms. Coady to file her final written submissions, due July 17, 2008, followed by the filing of any reply submissions by the Law Society, and the final deliberations and decision of the Panel.

8However, Ms. Coady seeks to stay the few remaining components of the tribunal hearing pending the outcome of her application for judicial review.

9Counsel for the Law Society has consented to an extension of time until July 21, 2008 for Ms. Coady to file her closing submissions with the Hearing Panel and has undertaken to inform the Hearing Panel of this decision, given the reality, as I informed the parties, that the delivery of this ruling would be reserved until July 18, 2008, after the original deadline for submissions had expired.

10Before me, Ms. Coady also raises a number of issues concerning the substantive and procedural handling of her case by the Panel and the Law Society prosecutors. Among her claims are: undue delay in the proceedings leading to an infringement of section 11(b) of the Charter; failures by the Law Society in its disclosure requirements; errors in the Panel's rulings concerning the relevance of proposed witnesses and evidence relating to an RCMP investigation named "Project Anecdote"; a denial of natural justice and abuse of process by the Panel through its request of her to provide a list of her proposed witnesses and other matters, leading to a breach of section 7 of the Charter; and allegations of bias and conflict of interest against the Panel and the Law Society prosecutors.

11While all of these issues, if substantiated, potentially go to the outcome of the case, they properly fall to be determined by way of appeal. Nothing prevents Ms. Coady from raising and arguing these issues before the Appeal Panel of the Law Society, and, in turn, the Divisional Court, if required. Ms. Coady also specifically alleges a further late disclosure of materials by the prosecution that has affected the preparation of her defence in the disciplinary hearing. She may address this issue in her closing submissions before the Panel and could request a reopening of the hearing, as well as pursue this matter on appeal if necessary.

12The test for granting a stay is set out in RJR-MacDonald v. Canada (Attorney General), [1994] S.C.J. No. 17 at paras. 41 – 43. The moving party must establish that: a) there is a serious question to be tried; b) there would be irreparable harm to the moving party; and c) the balance of convenience favours the moving party.

13Ms. Coady alleges that irreparable harm has been caused to her by the extended length of the proceedings and the publicity surrounding them. She refers to two articles appearing in 2002 and 2008 published in the Arnprior Chronicle Guide and the Ottawa Citizen, respectively, which outline the proceedings against her. While undoubtedly unfavourable to Ms. Coady, these articles have already been published and stem largely from the allegations and institution of proceedings by the Law Society.

14Ms. Coady refers to Gilbert v. Ontario (Provincial Police), [2000] O.J. No. 3521 (C.A.) as an example of an application for judicial review taken prior to the completion of a disciplinary proceeding. The matter under review in that case was the adjudicator's decision to admit transcripts of a criminal preliminary hearing after the complainant had refused to testify. However, the complainant had likewise refused to testify at the preliminary hearing after the presiding judge ruled that notes from her therapist relating to her recovered memories of the alleged sexual assault were admissible, a fact of which the adjudicator was unaware. The Divisional Court heard the application, overturned the decision of the adjudicator, and entered a stay of proceedings. The appellants, like the respondent in the case at bar, argued that the judicial review application was premature, and that it should have been postponed until the completion of the disciplinary hearing. The Court of Appeal agreed that the application was premature, but did not interfere with the disposition due to the unusual circumstances of the case.

15I note that in Gilbert, the application for judicial review was immediately brought after the impugned ruling was given at the outset of that proceeding, unlike, in our case, at their virtual completion. Both the Divisional Court and Court of Appeal recognized that, but for the highly unusual circumstances of the case, the application was premature.

16Justice Ground, in Coady v. Law Society of Upper Canada, [2004] O.J. No. 4576 (Div. Ct.), a decision on a motion brought by Ms. Coady to Divisional Court in the course of the original discipline proceedings, ruled as follows at paras. 7-9:

Having considered the submissions of counsel and the evidence before this Court, I find nothing to satisfy me that there are very extraordinary circumstances involved in this matter which would justify a departure from the practice of this Court not to interfere in or fragment proceedings before administrative tribunals….

In addition, it appears to me that the motion now brought by Coady is flawed in that the Law Society Act provides for an appeal from a hearing panel to the appeal panel of LSUC and Coady should exhaust her remedies before LSUC before applying for partial or full judicial review by the Divisional Court.

It is also my view that the policy underlying the practice of the Divisional Court not to intervene in or fragment proceedings before an administrative tribunal is particularly appropriate in the case at bar.

17This reasoning applies equally to the case at hand.

18I find that a stay at this stage of the proceedings would be unreasonable before the final decision of the Panel is made. Once a final decision is rendered by the Panel, Ms. Coady is entitled to appeal its decision to the Appeal Panel, and in turn to the Divisional Court, if necessary. This motion short circuits this process.

19Given that the hearing is virtually complete and that a full right of appeal from the decision of the Panel exists, Ms. Coady has failed to establish either that the balance of convenience is in her favour or that she will suffer irreparable harm should the hearing be allowed to progress to its conclusion. The test for granting a stay is thus not met, and consequently, the motion to stay the proceedings before the Hearing Panel is dismissed.

20On consent of the parties, costs are fixed at $3,500, payable to the successful party in the cause.

Archibald J.