COURT FILE NO.: 191/09
DATE: 20090921
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, J. WILSON AND ASTON JJ.
B E T W E E N:
UZMA AKHTAR
Applicant
- and -
LAW SOCIETY OF UPPER CANADA
Respondent
In Person
Brendan Van Niejenhuis,
Paul Jonathan Saguil, for the Respondent
HEARD at Toronto: September 21, 2009
the court:
[1] The applicant seeks judicial review from the July 21, 2009 decision of the Professional Development & Competency Committee of the Law Society of Upper Canada (the Committee).
[2] The Committee concluded that the accommodations granted by the Registrar to the applicant for writing the required examinations for admission to the Bar in Ontario were more than adequate in the circumstances.
[3] The applicant had unsuccessfully attempted in the past to pass these examinations on multiple occasions. Accommodations had been granted to her in the past based on her medical conditions of back problems and anxiety.
[4] The application for judicial review was launched on April 28, 2009 before the decision of the Committee. That notwithstanding, the Law Society concedes that this Court has jurisdiction to hear this application.
[5] The applicant seeks to file fresh evidence with respect to her medical condition in this application. Counsel for the Law Society consented to the filing of the fresh evidence, but take the position that it is not relevant to the application for judicial review. We accept the Law Society’s submission on this question.
[6] The applicant’s chief complaint is that the Committee denied her procedural fairness and natural justice. She makes the following arguments:
- The Committee was not neutral, and the proceedings disclose a reasonable apprehension of bias due to interruptions during her submissions by the Chair of the Committee
[7] We have reviewed the transcript of the hearing before the Committee and we have also heard submissions from the applicant. We conclude that any interruptions by the Chair were to clarify issues or to avoid repetition. It is clear that the applicant had full opportunity to make her submissions before the Committee (see page 135 of transcript, lines 1-13).
- The Committee failed to adequately consider the applicant’s 65 page reply filed at the opening of the hearing.
[8] It is clear from page 39 of the transcript of the hearing that the Committee was well aware of the applicant’s reply document and considered the submissions in reaching its conclusions.
- The Applicant complained that the Chair advised her that she would have the opportunity to reply to the submissions of the Law Society, but she was not given the opportunity to do so.
[9] Counsel for the Law Society was not called upon by the Committee to make submissions and therefore the applicant was not entitled to a right of reply. There is no merit to this submission by the applicant.
- The Law Society unfairly discriminated against the applicant by rescinding on May 5, 2009 clause 3.2.6 of the Policy and Procedures for Accommodations for Candidates in the Lawyer Licensing Process which provided for “alternative methods of examination and evaluation” if the Registrar saw fit.
[10] The appeal heard in July 2009 was heard as if the May 5, 2009 amendment had not been made. Counsel for the Law Society conceded that the amendment rescinding clause 3.2.6 was not retroactive. The Committee clearly considered the applicant’s request for “alternative methods of examination and evaluation” and declined to make such an order.
- The Committee failed to adequately consider the applicant’s medical evidence
[11] The Committee was well aware of the medical problems of the applicant including her anxiety and her back problems. The Committee reasonably concluded that the accommodations granted by the Registrar were more than adequate to address the applicant’s concerns. Counsel for the Law Society confirms that the accommodations previously granted to the applicant in the past will be granted to the applicant when she writes her exams in November, 2009.
[12] For these reasons the application for judicial review is dismissed.
[13] Counsel for the Law Society confirms it is not seeking costs and therefore there is no order as to costs.
JENNINGS J.
JANET WILSON J.
ASTON J.
Date of Release: September 25, 2009
COURT FILE NO.: 191/09
DATE: 20090921
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, JANET WILSON AND
ASTON JJ.
B E T W E E N:
UZMA AKHTAR
Applicant
- and -
LAW SOCIETY OF UPPER CANADA
Respondent
REASONS FOR JUDGMENT
Date of Release: September 25, 2009