COURT FILE NO.: 369/08
DATE: 20091020
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CAPUTO, DAMBROT AND SWINTON JJ.
B E T W E E N:
MARY MARTHA COADY
Appellant
(Respondent to Motion)
- and -
THE LAW SOCIETY OF UPPER CANADA
Respondent
(Moving Party)
In Person
J. Thomas Curry and Jaan Lilles, for the Respondent
HEARD at Toronto: October 20, 2009
DAMBROT J.: (Orally)
[1] The appellant appeals from a decision of the Law Society Appeal Panel dated June 16, 2008 quashing an appeal from the decision of the Law Society Hearing Panel dated February 26, 2008, in which a motion brought by the appellant was dismissed.
[2] In that motion the appellant sought a ruling from the Hearing Panel that the applications initiated against her were nullities because the Law Society had failed to meet the statutory preconditions to issuing the proceedings.
[3] The respondent takes the position that the order appealed from was not a final decision or order for the purposes of s.49.38 of the Law Society Act. We will consider this argument before turning to consider the merits of this appeal.
Background
[4] Only a short recitation of the history of this matter is needed to consider the preliminary issue raised by the respondent.
[5] On November 26, 2007, a Hearing Panel commenced the hearing of evidence in the disciplinary proceedings against the appellant. On November 27, 2007, the appellant served a notice of motion seeking a ruling that the applications initiated against her were nullities because the Law Society had failed to meet the statutory pre-conditions to issuing the proceedings. On February 26, 2008, an order and reasons for dismissing this motion were released by the Hearing Panel.
[6] The appellant brought an appeal from this decision to the Law Society Appeal Panel. The Law Society in turn brought a motion to quash the appeal. The motion to quash was granted on June 16, 2008. The Appeal Panel concluded that the appeal was not from a final order within the meaning of s.49.32 of the Law Society Act and had to be quashed. It also concluded that it remained open to the appellant to raise the issue of jurisdiction before the Appeal Panel should the Hearing Panel complete the proceedings against the appellant and make findings of professional misconduct against her.
Analysis
[7] Section 49.38 of the Law Society Act provides:
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.
[8] The appellant argues that the Appeal Panel erred in law in finding that the Hearing Panel’s decision was not a final order. She relies on cases decided under the Courts of Justice Act that have held that a decision on jurisdiction is a final order. See, for example, Abbott v. Collins (2002), 62 O.R. (3d) 99 (C.A.) at paras. 5-6.
[9] An appeal right is a statutory right. In this case, the determination of the jurisdiction of this Court turns on the language of s.49.38 of the Law Society Act. That section provides a right of appeal only from the final disposition of the disciplinary proceeding. Manifestly, the decision of the Appeal Panel under review was not a final decision.
[10] As I have noted, the Appeal Panel concluded that it remained open to the appellant to raise the issue of jurisdiction before the Appeal Panel should the Hearing Panel complete the proceedings against the appellant and make findings of professional misconduct against her. It quashed her appeal on grounds of prematurity.
[11] The appellant has been repeatedly warned that this Court will not entertain her efforts to fragment the proceedings against her. Neither her persistence nor the circumstances of this appeal merits any departure from the pattern to date. It is unnecessary to hear argument on the motion to adduce fresh evidence or on the merits of the appeal.
Disposition
[12] The appeal is quashed for want of jurisdiction.
Costs
[13] Costs to the respondent in the amount of $2,000.00, payable forthwith.
DAMBROT J.
CAPUTO J.
SWINTON J.
Date of Reasons for Judgment: October 20, 2009
Date of Release: October 30, 2009
COURT FILE NO.: 369/08
DATE: 20091020
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
caputo, DAMBROT AND SWINTON JJ.
B E T W E E N:
MARY MARTHA COADY
Appellant
(Respondent to Motion)
- and -
THE LAW SOCIETY OF UPPER CANADA
Respondent
(Moving Party)
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: October 20, 2009
Date of Release: October 30, 2009