Kopyto v. Law Society of Upper Canada, 2011 ONSC 5991

1The applicant, a paralegal candidate under the paralegal licensing regime of the Law Society of Upper Canada, seeks judicial review of a decision of the Hearing Panel of the Law Society.

2During his good character hearing, under s.27 of the Law Society Act, R.S.O. 1990, c. L. 8, the applicant delivered a Notice of Motion and Notice of Constitutional Question. The Law Society brought a motion to quash the Notice of Motion and Notice of Constitutional Question. In his motion, the applicant sought to challenge the validity of By-law 4, the Law Society’s licensing by-law.

3The Hearing Panel granted the motion to quash after it reviewed the legislative scheme authorizing By-law 4 and good character hearings, as well as the public interest component to its mandate. It ultimately held (at paragraph 29 of its Reasons):

We have carefully considered the Candidate’s argument that the issues presented in his motion arise “in a proceeding before” this hearing panel because, if the paralegal regulation scheme is unconstitutional in its entirety, this hearing panel itself is not legitimately appointed. This argument implicates the hearing panel appointed to determine whether the Candidate’s application for a license should be refused. Despite being implicated in this way, the hearing panel does not consider itself institutionally competent to conduct the broad constitutional inquiries into such matters as the governance of the Society and the restrictions on paralegal practice, which would be required to determine the questions raised in the Candidate’s Notices of Motion and Constitutional Question. The panel considers that such questions are appropriately raised before a Court of original jurisdiction.

4The applicant now seeks judicial review of the Hearing Panel’s decision. The parties agree that the standard of review of the Hearing Panel’s decision is correctness.

5The Law Society argues this application for judicial review is premature. Judicial review is a discretionary remedy. This Court is reluctant to grant judicial review in the course of proceedings before an administrative tribunal because of the fragmentation and delay caused (see Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 3430 (ON SCDC), 11 O. R. (3d) 798 (Div. Ct.) at pages 2-3 of the Quicklaw version).

6The applicant argues that the application is not premature because the Hearing Panel lacks jurisdiction, and it would be unfair to proceed with a fatally flawed process.

7In our view, the Hearing Panel correctly held that it had no jurisdiction to deal with the issues framed by the applicant challenging the validity of By-law 4.

8In the hearing before this Court today, the applicant focused on apparent bias because the Hearing Panel is appointed by the Benchers of the Law Society. He says there is a conflict of interest because of economic competition between lawyers and paralegals, and By-law 4 is flawed because it is inextricably intertwined with the absence of administrative independence of the Hearing Panel.

9We agree with the Hearing Panel that it did not have jurisdiction to deal with this broad issue of the validity of the by-law in the course of a good character hearing, and that such questions are appropriately raised before a court of original jurisdiction. The Hearing Panel’s decision is consistent, in our view, with R. v. Conway, 2010 SCC 22, 2010 S.C.J. No. 22.

10Therefore, the application for judicial review is dismissed.

COSTS

11I have endorsed the Application Record, “This application is dismissed for oral reasons given today. Costs to the Law Society fixed at $5,000.00, all inclusive.”