Court File and Parties

COURT FILE NO.: 637/08 DATE: 20090417

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LEDERMAN, KARAKATSANIS AND TULLOCH JJ.

B E T W E E N:

MARK ELLIOT JOSEPH Appellant

• and -

THE LAW SOCIETY OF UPPER CANADA Respondent

In Person Elaine Strosberg, for the Respondent

HEARD AT TORONTO: April 17, 2009

Reasons for Judgment

LEDERMAN J.: (Orally)

1The appellant, Mark Elliot Joseph, appeals from the decision of the Appeals Management Tribunal (“AMT”) of the Law Society of Upper Canada (“LSUC”) dated November 24, 2008, in which the AMT dismissed Mr. Joseph’s motion to, inter alia, extend the time to file the appeal of the January 31, 2001 order of the LSUC Hearing Panel, finding Mr. Joseph guilty of professional misconduct.

2Mr. Joseph seeks an order setting aside the AMT decision. The AMT is a single bencher of the LSUC.

3The AMT is created under the Rules of the Law Society. In LSUC v. AB [2004] LSDD No. 71, the Appeal Panel of the LSUC stated at para. 26:

“Rule 15.05 deals with the AMT. Rule 15.05 delegates to the AMT a share of the Appeal Panel’s right to grant leave to appeal by stating in part:

The AMT shall hear motions with respect to,

(a) the abridgement or extension of any time prescribed by these Rules or by a previous order of the AMT.”

4The Appeal Panel in that decision found that it had jurisdiction to hear an appeal from the order of the AMT. It stated that “as the Law Society Act makes no mention of the AMT, perforce it does not provide for an appeal from the AMT to the Divisional Court”. The Appeal Panel is the final arbiter of the internal process and only subsequent appeals from the Appeal Panel lie to the Divisional Court (see paras. 14, 29 and 31 of the AB decision).

5An appeal of a decision of an Appeal Panel lies to the Divisional Court under s.49.38 of the Law Society Act, R.S.O. 1990, c.L.8 on certain matters:

49.38 A party to a proceeding before the Appeal Panel may appeal to the Divisional Court from a final decision or order of the Appeal Panel if,

(a) The Appeal Panel’s final decision or order was made on an appeal from a decision or order of the Hearing Panel under subsection 31(3); or

(b) the proceeding was commenced under section 34 or 38.

6Although it did not raise the issue of jurisdiction in its written material, the LSUC takes the position in argument that this matter should properly be before the Appeal Panel and that indeed, the Appeal Panel has a broader scope of review on such an appeal, than does the Divisional Court.

7Therefore, for lack of jurisdiction in this Court, the appeal is quashed. The matter should properly be before the Appeal Panel of the LSUC.

8I have endorsed the Record to read: “This appeal is quashed for oral reasons delivered. In the circumstances, there will be no costs of this appeal”.

LEDERMAN J.

KARAKATSANIS J.

TULLOCH J.

Date of Reasons for Judgment: April 17, 2009 Date of Release: May 5, 2009

COURT FILE NO.: 637/08 DATE: 20090417

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

LEDERMAN, KARAKATSANIS AND TULLOCH JJ.

B E T W E E N:

MARK ELLIOT JOSEPH Appellant

• and -

THE LAW SOCIETY OF UPPER CANADA Respondent

REASONS FOR JUDGMENT

LEDERMAN J.

Date of Reasons for Judgment: April 17, 2009