Citation and Court Information
DIVISIONAL COURT FILE NO.: 604/11
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEROLD, ASTON AND WILTON-SIEGEL JJ.
Parties
BETWEEN:
THE LAW SOCIETY OF UPPER CANADA
Applicant
(Respondent)
– and –
ALIAMISSE OMAR MUNDULAI
Respondent
(Appellant)
Counsel and Hearing
Deborah McPhadden, for the Applicant (Respondent)
In Person
HEARD at Toronto: May 1, 2012
Oral Reasons for Judgment
HEROLD J. (orally)
1The appellant, Mr. Mundulai, is licenced by the respondent, the Law Society of Upper Canada to practice law in the Province of Ontario. His practice is mainly in the area of criminal defence work. Arising out of his work he found himself charged with a serious criminal offence, an allegation of obstructing justice and subsequent to his arrest he sought and was granted bail. One of the terms of his recognizance of bail was that he was "not to practice criminal law (i.e. deal in any way with any criminal case) except while under the immediate supervision of a member in good standing of the Law Society of Upper Canada".
2The matter before us today arises out of his alleged failure to comply with his recognizance of bail. There was an allegation that on more than one occasion he breached his recognizance with respect to the term described above, and the Law Society of Upper Canada commenced an investigation which resulted in allegations of professional misconduct, the conduct alleged being the allegations of breach of recognizance.
3A two day hearing was held and some three months thereafter the Hearing Panel released its comprehensive reasons for finding the allegation of professional misconduct proven and some time thereafter they released their reasons with respect to penalty and costs.
4Mr. Mundulai appealed the finding of professional misconduct made by the Hearing Panel, and their ruling with respect to penalty and costs. The Appeal Panel released its decision on November 21, 2011 upholding the Hearing Panel's finding of professional misconduct, the penalty imposed, and the original costs award. It is this decision by the Appeal Panel which the appellant now seeks to overturn in his appeal to the Divisional Court.
5Counsel for the Law Society, in her factum at para. 24 sets out the grounds of appeal considered by the Appeal Panel, which list I find to be accurate and complete. It reads as follows:
- The Appeal Panel considered the following grounds of appeal:
a. the Law Society has no jurisdiction because the enforcement of bail conditions are (sic) within the exclusive jurisdiction of the Parliament of Canada;
b. the Hearing Panel erred in applying the civil standard of proof;
c. the Hearing Panel erred in its assessment of credibility;
d. the proceedings were an abuse of process; and
e. the criminal charges alleging failure to comply with the bail condition were withdrawn by the Crown therefore the issue of whether he breached the bail condition was res judicata.
6The Notice of Appeal to the Divisional Court reads as follows:
"The Appellant asks that the Decision rendered by the Law Society Appeal Panel and dated November 21, 2011 is set aside and judgment be granted as follows:
A. An Order of the Court quashing the Notice of Application No. LCN 66/88 dated November 28, 2008.
B. An Order staying the proceedings commenced by way of the Notice of Application No. LCN 66/88 dated November 28, 2008.
C. An Order setting aside the decision rendered by the Law Society Hearing Panel and dated June 30, 2010 with regard to a finding of professional misconduct, and the Law Society Hearing Panel Order dated February 25, 2011 imposing a penalty of six months (6) suspension and costs, for want of jurisdiction and reasonable apprehension of bias.
D. An Order of the Court setting aside the decision rendered by the Law Society Appeal Panel and dated November 21, 2011.
E. Any such further and other relief as the Court deems just."
7The appellant then sets out in 15 (fifteen) numbered paragraphs his grounds of appeal. Having reviewed the facta filed, and considered submissions made today, we can conveniently deal with the grounds of appeal under the following headings: (although the issues were framed with the Hearing Panel as the named target, in fact the question for us to answer is whether the Appeal Panel erred in confirming the Hearing Panel's decision on these issues):
Are the Law Society proceedings ultra vires the Law Society, raising issues that are within the exclusive jurisdiction of the Parliament of Canada, namely criminal law?
Did the Hearing Panel err in applying the civil standard of proof to allegations of a criminal nature?
Did the Hearing Panel err in its assessment of the credibility of witnesses?
In allegedly ignoring breaches of the Law Society Act with respect to disclosure by the investigator, did the Hearing Panel unfairly create a reasonable apprehension of bias?
Did the Hearing Panel err in failing to correctly apply doctrines of issue estoppel, res judicata, abuse of process, cause of action (sic) and collateral attack?
8The appellant, Mr. Mundulai made no submissions in his factum nor in oral argument with respect to the applicable standard or standards of review. Counsel for the Law Society has set out in chart form her position on this issue as follows:
Jurisdiction - correctness
Civil or criminal standard of proof – correctness
Assessment of credibility – reasonableness
Failure to stay proceedings – reasonableness
Res judicata, issue estoppel, etc. – reasonableness
9The appellant taking no position with the Law Society placing the higher burden on itself in items 1 and 2, we have no reason to disagree, nor do we. Item 3 is clearly one in which to apply at least a reasonableness standard if not even palpable and overriding error since the assessment of the credibility of witnesses is almost always the responsibility of the triers of fact.
10Some might argue that the issues in items 4 and 5 attract a standard of review of correctness, but the appellant does not. These are questions of mixed fact and law. The Hearing Panel and the Appeal Panel are made up, in part at least, of lawyers. The reasons for decision at each level appear to be have been authored by lawyers. As a result, some deference might be justified. In the final analysis however, based on the particular facts of this case, it does not matter whether the standard of review applied is one of correctness or of reasonableness. Had we found it to be established that there was a reasonable apprehension of bias in either panel, one need not identify any standard of review. We have found no such reasonable apprehension of bias and will deal with this issue very briefly below.
11Without over-generalizing, or on the other hand, putting too fine a point on it, it is fair to say that with one exception the Hearing Panel, and the Appeal Panel, dealt with every issue which was also raised by the appellant in this Court. We agree with the decisions of both. In particular, with respect to the 5 issues outlined earlier, we find that the Appeal Panel dealt with issues 1, 2, 4 and 5 correctly, and issue #3 reasonably. Having said that, one might simply conclude by saying that there is no error disclosed in the order appealed from and the appeal is dismissed.
12The appellant made it very clear to us, and to the panel below, just how important this matter is to him, and that is no surprise to any of us, and I therefore very briefly make the following observations.
13The one issue that was new in the appeal before us was the allegation of reasonable apprehension of bias. The appellant was unable to focus his submissions very well but what we take from his submissions are the following:
The Hearing Panel was biased because it is their Society, the Law Society of Upper Canada, prosecuting the matter before them.
The Appeal Panel was biased for similar reasons.
It is noteworthy that #1 was not addressed at the Appeal Panel Hearing, and #2 was not raised with the Appeal Panel before, nor during submissions and we find absolutely no support for this new allegation. We agree with those portions of para. 40 of the Appeal Panel decision dealing with this question.
- The main investigator Ms. Ward was biased against Mr. Mundulai personally and this coloured her evidence against him. This is really part and parcel of the credibility isuse, #3. Looking at the other issues raised and why we find that they were decided correctly and/or reasonably, we simply note the following:
Issue #1 – Jurisdiction
14In para. 29, the Appeal Panel very carefully and accurately dealt with this question. We simply note, in addition, that the Hearing Panel was not convened until after the criminal charges of breach of recognizance had run the course that they eventually did.
Issue #2 – The Civil Standard Employed by the Hearing Panel
15The appellant argues that the panel should have employed a criminal standard of proof – proof beyond a reasonable doubt, rather than the civil standard of proof on a balance of probability.
16The Supreme Court of Canada in F.H. v. McDougall 2008 SCC 53, [2008] 3 S.C.R. 41, finally put to rest the question of whether there is some sort of sliding scale in civil proceedings involving allegations of criminal or quasi-criminal conduct. The simple answer is no – there is only one standard – proof on a balance of probabilities in civil matters, recognizing that the trier or triers of fact should look for clear, compelling and cogent evidence to get the trier or triers to that threshold. That is what the Hearing Panel did and what the Appeal Panel found it did correctly.
Issue #3 – Assessment of Credibility
17Much time was spent in submissions pointing out the apparent and in some cases clear discrepancy between the evidence of Ms. Ward on behalf of the Law Society and Mr. Mundulai on his own behalf. It would be a rare case indeed if there were not such discrepancies – that is what triers of fact are required to sort through as they make their findings of fact. There is nothing in the substantial record before us to demonstrate any clear or obvious error. There is much for the appellant to disagree with, but that doesn't make the findings unreasonable.
Issue #4 – Apprehension of bias
18In addition to what we have already said earlier, since there was some overlap in the appellant's submission, the thrust of his submission on this issue is that the Appeal Panel eventually found evidence (as had others before in related proceedings) of a breach by Ms. Ward of her non-disclosure obligation under the Law Society Act. This was not squarely before the Appeal Panel as it had not been specifically raised at the hearing but they dealt with it and did so properly at paras. 37 through 40, and particularly para. 39 of their reasons.
19There are remedies – civil proceedings against Ms. Ward or her employer or a request for a stay in the breach of recognizance proceedings if they had not been withdrawn. There would be no justification legally or otherwise to stay these Law Society proceedings which began long before the disclosure breach – the breach had nothing whatsoever to do with the course this proceeding took.
20Finally, although far less significantly, the Appeal Panel did not ignore this breach; it was the basis upon which their ruling, very favourable to the appellant, was made with respect to the costs of the appeal.
Issue #5 – Res Judicata, issue estoppels, etc. – reasonableness
21These issues are almost inextricably intertwined in the appellant's factum and in his submissions. At the end of the day he grudgingly agreed that the sine qua non, in existing jurisprudence for finding them to exist and to potentially operate in his favour would be a final determination on the merits, and that for us to conclude otherwise would require us to ignore a long line of compelling authority. We choose not to do so. There was never a final decision on the merits – it is required and the Appeal Panel was correct in its decision in this regard.
22The Appeal Panel dealt very briefly and accurately with the issues of penalty and costs of the hearing. There is absolutely nothing about their brief reasons which the appellant could say was unreasonable nor could he point us to any similar cases with a different, more appropriate, in his view, result. His submission in a nutshell was that the finding of misconduct itself has, and will continue to cause him personal and professional hardship. We have no doubt that this is so nor do we have any doubt that the Hearing Panel and the Appeal Panel, dealing with these difficult matters every day knew this to be so. This does not make them wrong, nor their conclusions unreasonable.
23For all of these reasons the appeal is dismissed.
COSTS
24Although we are one step and much work removed from the decision of the Law Society Hearing Appeal Panel, I am impressed by and convinced by the words in paragraphs 43 and 44 of their reasons and with one exception, that there is "more water under the bridge" now, equally applicable to this present appeal and I would make no order as to costs.
ASTON J. Dissenting on Costs issue only
COSTS
25I have a different view with respect to costs. In my view, it sends the wrong message. I am of the opinion that this appeal is not just devoid of merits but that it raised wide ranging and unfocussed grounds which made it much more complicated than it needed to be. The decisions below are not only correct in law but they are supported by clear and cogent reasons and in my view, we could have simply adopted those reasons from the Appeal Panel decision. As a lawyer, the appellant knows the risks when it comes to costs and I would fix those costs in favour of the Law Society at the $7,275.00 requested.
ENDORSEMENT
26The appeal is dismissed for oral reasons given today by the Court. Aston J. dissenting on this issue only, no order as to costs. (Aston J. would have awarded costs of $7,275.00 to the respondent, Law Society of Upper Canada).
HEROLD J.
ASTON J.
WILTON-SIEGEL J.
Date of Reasons for Judgment: May 1, 2012
Date of Release: May 7, 2012
CITATION: The Law Society of Upper Canada v. Mundulai, 2012 ONSC 2661
DIVISIONAL COURT FILE NO.: 604/11
DATE: 20120501
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HEROLD, ASTON AND WILTON-SIEGEL JJ.
BETWEEN:
THE LAW SOCIETY OF UPPER CANADA
Applicant
(Respondent)
– and –
ALIAMISSE OMAR MUNDULAI
Respondent
(Appellant)
ORAL REASONS FOR JUDGMENT
HEROLD J.
Date of Reasons for Judgment: May 1, 2012
Date of Release: May 7, 2012