COURT FILE NO.: 630/08

DATE: 20090209

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

JONATHAN HOWARD MARLER

Applicant

• and -

THE LAW SOCIETY OF UPPER CANADA

Respondent

Robert W. Wilson, for the Applicant

Jan Parnega and Louise Hurteau, for the Respondent

HEARD at Toronto: February 9, 2009

LOW J.: (Orally)

1The applicant, Jonathan Marler, moves for an order staying the proceedings against him before the respondent, Law Society of Upper Canada.

2The proceedings were commenced in March, 2007 by Notice of Application alleging professional misconduct. A preliminary motion was brought by the Law Society and was heard by the Hearing Panel in February, 2008 and the motion by Mr. Marler for a stay on the grounds of delay was scheduled to be heard November, 2008.

3Prior to the hearing of the latter motion, the applicant brought a motion before the Hearing panel for a recusal of all three members of the Panel on grounds that there was a reasonable apprehension of bias in respect of one of the members, Mr. Rabinovitch. Mr. Marler filed an affidavit in his motion material for recusal.

4The Panel heard arguments and rendered its decision and reasons orally on November 19, 2008. Mr. Marler indicated an intention to seek judicial review of the decision and sought an adjournment of the continuation of the Discipline Hearing. The Law Society did not oppose the request for an adjournment and the Panel granted a twelve week adjournment to February 13, 2009, which in the circumstances, was a reasonable estimate of the amount of time it would reasonably take for the judicial review application to be perfected and determined by the Divisional Court.

5Mr. Marler did not launch his judicial review application until five weeks into the twelve week hiatus. Service of the Law Society was not affected until December 29, 2008. In his Notice of Application for Judicial Review, he listed a number of items of documentary evidence upon which he intended to rely. Among those items are pieces of evidence not before the Hearing Panel. Among those items is the affidavit of Mr. Marler, dated November 17, 2008, which was the evidence used on the motion for recusal before the Panel and the transcript of the Hearing on November 19, 2008. There is no mention of reliance upon the transcript of the entire proceeding.

6On January 21, 2009, the Law Society sent to Mr. Marler a copy of the formatted version of the transcription of the oral reasons. On January 15, the Law Society wrote to Mr. Marler asking that he perfect the judicial review application by filing a Certificate of Perfection. On January 23, the Law Society wrote again in the same vein.

7On January 27, Mr. Marler wrote to the Law Society alluding to the absence of filing of the record of the proceedings before the Hearing Panel. On January 29, 2009, counsel for the Tribunals Office of the Law Society wrote to Mr. Marler asking that the Tribunals Office be served and inquiring whether the Record need include only the materials regarding the motion. On February 4, Mr. Marler wrote to the Law Society to indicate that he was seeking the full record of the proceedings as opposed to the part of the record relating to the impugned decision. On January 30, 2009, Mr. Marler launched this motion for a stay of the continuation of the Discipline Hearing scheduled for February 13, 2009.

8The test for the granting or refusal of a stay is set out in R.J.R.-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at para. 43. That there is a serious question to be determined on the application is not disputed. The existence of a reasonable apprehension of bias goes to the right of the applicant to a fair hearing. That being said, it is far from obvious that the Divisional Court would, at an interlocutory stage of the tribunal proceeding, interfere with the tribunal’s determination of the issue even where the allegation is one of reasonable apprehension of bias. The applicant would need to demonstrate exceptional circumstances to warrant the kind of fragmentation of the processes of administrative tribunals that would result from court interference in an interlocutory determination and a fortiori where the statute confers a right of appeal, as it does in this statute, to an appeal tribunal (see Ontario College of Art et al. v. Ontario Human Rights Commission (1993), 11 O.R. (3d) 798).

9The second part of the test goes to irreparable harm if the stay is not granted. In my view, the applicant has not shown that there will be irreparable harm. He is continuing in the practice of law. If, at the end of the discipline hearing he is found guilty of professional misconduct, he has a right of appeal to the Appeal Tribunal. If at the end of the day he is found not guilty, there will have been no harm in any event. If it should transpire that he is found guilty and that he was denied a fair hearing, any efforts that may turn out to have been wasted may be made the subject of a costs award if the circumstances justify it.

10The applicant has shown neither that there are exceptional circumstances nor that there will be irreparable harm if the stay is refused.

11Third, the applicant has not shown that the balance of convenience favours a stay. While a stay pending the outcome of the judicial review will result in economy in the event that Mr. Marler’s judicial review application is successful, there is a legitimate countervailing argument that the Law Society has an obligation to carry out with diligence its mandate to protect the public interest under the statute by disciplining members whose conduct requires disciplinary attention.

12Taking all three elements of the R.J.R.-MacDonald test into account, I am of the view the that the applicant has not met the test.

13The disclosure of additional documents in late December in support of the Law Society’s case does not in any case warrant interference by this Court as the timing of the disclosure is a matter only properly addressed to the Tribunal and properly dealt with by the Tribunal in the control of its own process.

14The foregoing is sufficient to dispose of the motion but I will address one further point since the granting of a stay is a discretionary remedy. It appears to me that Mr. Marler has not proceeded in a reasonably prompt way to get his judicial review application heard and determined. There is no reasonable explanation for the five week delay between the rendering of a decision (and the seeking of the adjournment) and the launching of the judicial review application. That there was confusion over what the part of the Law Society ought to have been served and was not, and confusion over whether all or part of the hearing proceedings were required, was something of a red herring because in the absence of the five week delay, even with the confusion about service and the time needed to sort out what was needed by way of the record of the proceedings, it is very likely, if not a certainty, that the judicial review application could have been perfected and heard by a panel of this Court well in advance of February 13.

15The motion for a stay is dismissed with costs to the Law Society in the amount of $750.00, the quantum having been agreed to by the parties.

16I endorse the Motion Record: “For oral reasons, motion is dismissed. Costs fixed at $750.00 to the responding party.”

LOW J.

Date of Reasons for Judgment: February 9, 2009

Date of Release: February 12, 2009

COURT FILE NO.: 630/08

DATE: 20090209

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT