Citation: Kay v. LSUC, 2010 ONSC 1024
DIVISIONAL COURT FILE NO.: 323/08
DATE: 20100211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, SWINTON AND SACHS JJ.
BETWEEN:
JAMES ALEXANDER KAY Appellant
– and –
THE LAW SOCIETY OF UPPER CANADA Respondent
In Person
Suzanne Jarvie, for the Respondent
HEARD at Toronto: February 11, 2010
SWINTON J. (orally)
[1] The appellant appeals from the decision of the Appeal Panel of the Law Society of Upper Canada dated January 10, 2008, dismissing his appeal from a decision of the Hearing Panel finding that he had committed professional misconduct and ordering that he be suspended for thirty days and imposing a number of conditions.
[2] The reasons of the Appeal Panel are thorough and well-crafted. In our view, the decision was reasonable and we would not interfere with it despite the following arguments made by the appellant:
(i) The Appeal Panel found that the Hearing Panel had authority to issue a revised penalty order in September 2006 to reflect the Hearing Panel’s decision, as set out in its reasons, that the penalty would include the conditions agreed upon in the joint submission as well as a suspension. The Appeal Panel found that there was no evidence that the Hearing Panel changed its mind and altered its reasons after releasing its first order on July 24, 2006. That was a reasonable inference to be drawn by the Appeal Panel based on the evidence. It did not err in concluding that the Hearing Panel was not functus and that the Hearing Panel had the authority pursuant to s.21.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22 to correct the penalty order so that it reflected the penalty decision the Hearing Panel always intended to make.
(ii) The appellant argues that the Appeal Panel erred in law in finding that he discriminated against a client “Z”. We see no error in the way in which the Appeal Panel applied the Ontario Human Rights Code. There was ample evidence which led the Hearing Panel to conclude that there was discrimination, and the Appeal Panel reasonably concluded that there was clear and cogent evidence of discrimination and that the decision of the Hearing Panel on this particular was reasonable.
(iii) The Appeal Panel concluded that the penalty was reasonable. That, too, was a reasonable decision. The Hearing Panel found the appellant guilty of five distinct incidents of misconduct relating to incivility. The Appeal Panel considered both aggravating and mitigating factors. It acknowledged that an absence of an admission of professional misconduct is not an aggravating factor.
(iv) The Appeal Panel had the authority to impose a publication ban on parts of the costs submissions as it did.
(v) We see no merit to the arguments of bias, arguments that the appellant did not press in oral submissions.
[3] Therefore, for these reasons the appeal is dismissed.
DAMBROT J.
[4] As a result of our decision, the stay is lifted and the original amended order in respect of the suspension and its commencement is in effect. We award costs to the Law Society in the amount of $8,000.00.
SWINTON J.
DAMBROT J.
SACHS J.
Date of Reasons for Judgment: February 11, 2010
Date of Release: February 26, 2010
CITATION: Kay v. LSUC, 2010 ONSC 1024
DIVISIONAL COURT FILE NO.: 323/08
DATE: 20100211
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, SWINTON AND SACHS JJ.
BETWEEN:
JAMES ALEXANDER KAY Appellant
– and –
THE LAW SOCIETY OF UPPER CANADA Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: February 11, 2010
Date of Release: February 26, 2010