Savone v. Law Society of Upper Canada, 2013 ONSC 1015
CITATION: Savone v. Law Society of Upper Canada, 2013 ONSC 1015
COURT FILE NO.: 12-DC-1858
DATE: 2013-02-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LUIGI SAVONE
Applicant
– and –
THE LAW SOCIETY OF UPPER CANADA REGULATIONS DIVISION and THE HEARING PANEL OF THE LAW SOCIETY OF UPPER CANADA
Respondents
Christopher A. Moore, for the Applicant
Tim Gleason/Sean Dewart, for the Respondent The Law Society of Upper Canada Regulations Division
HEARD: February 13, 2013
T.D.RAY, J
[1] This is an application for leave to have this application heard in the Superior Court, rather than the Divisional Court on the ground that this case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.[^1] If I grant leave, I may continue to hear the application. If I refuse leave I may nonetheless transfer this application to the Divisional Court[^2]. If this application had been brought in front of the Divisional Court, leave would not have been required.
[2] The applicant seeks leave for judicial review of that part of a decision of a Law Society Hearing Panel dated July 27, 2012 which dismissed with reasons the applicant’s motion for a change of venue. The Law Society has scheduled the hearing to commence in Toronto, March 4, 2013.
[3] The applicant is a solicitor, licensed to practice law in the Province of Ontario. The Law Society’s application of September 22, 2011 notes that a conduct proceeding has been commenced for determination of whether the applicant engaged in professional misconduct. Specifically he is alleged to have breached Rule 2.012(5) of the Rules of Professional Conduct as follows:
i. He participated in or knowingly assisted in fraudulent or dishonest conduct by his vendor and purchaser clients, or associated persons, to obtain mortgage proceeds under false pretences in connection with transactions involving the properties listed in schedule A annexed hereto;
ii. Alternatively, he failed to be on guard against being duped by unscrupulous clients or associated persons in connection with the transactions.
[4] In its reasons, the panel noted the relevant Law Society Rule 17.01 with respect to the place of a hearing, accepted that as a matter of principle the convenience of witnesses is a relevant consideration, and concluded that it is implicit (but not explicit) that changing the venue from Toronto will only be granted in exceptional circumstances. After reviewing the affidavit of the applicant’s counsel’s assistant concerning possible witnesses from the Ottawa area and their relevance to the proceeding, which was disputed by the Law Society Counsel, concluded:
[40] We cannot predict at this juncture who among the 20 proposed witnesses will be excluded or who counsel may elect not to call. However, as noted above, the affidavit material filed in support of this motion is less than persuasive. Finally, in disposing of the motion tor change of venue, we note that:
a. No claim of financial or other prejudice to Mr. Savone was asserted anywhere in the affidavit evidence, nor is it claimed that any witnesses would be unavailable to testify in Toronto;
b. The Society conceded in its material that a penalty hearing could be held in Ottawa, in the event of a finding of professional misconduct.
[5] Were I to grant leave and hear this matter, the standard of review is correctness concerning matters of law, and otherwise the standard of review is reasonableness[^3]. Great deference is owed to tribunals with experience in specific areas referred to as their home statute, and deference may also be owed in matters interpreting their own statute and rules[^4]
[6] However before that consideration and analysis, I must first address the threshold for leave to proceed with the application[^5]. A two prong test must be considered. Firstly I must consider whether this case is one of urgency. If I conclude that it is, then I must consider whether the delay required for an application to the Divisional Court is likely to involve a failure of justice.
[7] Since the hearing is scheduled for March 4, 2013, I am satisfied it appears to be urgent. However, there is nothing in the material to indicate why this application could not have been heard earlier in Toronto by the Divisional Court where there are almost continuous sittings, and where the panel rendered its decision. Here in Ottawa, Divisional Court sits twice per year. If this application had been brought in the Divisional Court, the applicant would not have had to deal with these threshold issues. Under these circumstances, I have reservations as to whether the applicant has made out the requirement of urgency.
[8] I am not satisfied however that a delay for this application to be heard by the Divisional Court would involve a failure of justice. This was a procedural ruling in the nature of an interlocutory order, rather than a final order. While venue may affect the rights of the parties, a full record in that respect will not be available until the hearing has been concluded and a decision rendered[^6]. Judicial review at this stage would be premature in the extreme. There are no demonstrable exceptional circumstances.[^7] Furthermore, the panel that made the decision on the venue motion is not the panel that will hear the conduct matter. It will be open to the applicant (and the respondents will not oppose the bringing of the motion) to bring a motion for a change of venue on proper material before the panel.
[9] Leaving aside the issues of urgency and delay, I have serious reservations about the merits of the applicant’s case. The merits of the application are an essential component of failure to justice. Without a finding that the motion before the panel had merit, then it would be impossible to establish failure to justice.
[10] I have concerns about the panel’s application of an exceptional circumstances test for a change of venue. According to the respondents, this was the first time the matter had come up for adjudication since in all other cases agreement has been reached. They contend that deference is owed because it is procedural in nature and they are interpreting their own rules. My concerns are that there is nothing in the regulation to suggest an exceptional circumstances test is to be applied. To the contrary, we know that it is common for panels to conduct hearings outside Toronto. Once a party contends that the venue ought to be somewhere other than Toronto, and in the absence of agreement, it seems to me that the factors ought to be considered without applying such a restrictive test.
[11] The applicant’s contention that if he is not granted relief in this application, that he will be denied a remedy is simply false. He can bring this motion again before the hearing panel on March 4, 2013. At the conclusion of the proceeding he has rights of appeal set out in the Law Society Act. He also has the right to bring a judicial review application if so advised.
[12] The panel correctly noted that the affidavit material was less than persuasive. The applicant submitted unsatisfactory evidence in support of his motion to the Law Society Panel to the point of it being unsettling. Both the nature of the evidence and the contents of the affidavit are worrisome. Affidavit evidence is designed to place facts before a tribunal. The best evidence rule applies. To rely on an affidavit from an affiant who describes herself as counsel’s assistant, with no ground for asserting the evidence other than she is counsel’s assistant, and without asserting her source and ground of belief is very troubling. It smacks of trivializing an evidentiary record. The contents are vague and poorly considered with only vague assertions and reasons for intending to call various witnesses without regard for the issues on which the witnesses are intended to be called. I can well understand why the panel found the affidavit material to be less than persuasive. It is no answer to say that the contents of the affidavit were uncontradicted. As in all such cases, the burden is on the party seeking the relief. As a consequence the merits of the motion before the panel were seriously wanting.
[13] I find that the applicant has not met the burden of establishing either prong of the two prong test for leave, and I do not consider it appropriate in this case to transfer it to the Divisional Court which only sits in Ottawa twice a year, thereby guaranteeing further delay. It is open to the applicant bring his motion for a change of venue before the panel on March 4, 2013 or later during the proceeding. The application is dismissed.
[14] Both parties filed costs outlines at the conclusion of argument. If the parties cannot agree on costs, they make submissions of two pages or less within 14 days, and with a further five days for reply.
Honourable Justice Timothy Ray
Released: February 13, 2013
CITATION: Savone v. Law Society of Upper Canada, 2013 ONSC 1015
COURT FILE NO.: 12-DC-1858
DATE: 2013-02-13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
LUIGI SAVONE
Applicant
– and –
THE LAW SOCIETY OF UPPER CANADA REGULATIONS DIVISION and THE HEARING PANEL OF THE LAW SOCIETY OF UPPER CANADA
Respondents
REASONS FOR DECISION
Honourable Justice Timothy Ray
Released: February 13, 2013
[^1]: Judicial Review Procedure Act R.S.O. 1990, Chapter J. 1, section 6(2). [^2]: Supra s. 6(3) [^3]: Dunsmuir v. New Brunswick, 2008 SCC 9. [^4]: Wise v. LSUC, 2010 ONSC 1937 [^5]: Note 2. [^6]: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 paras 68-70 [^7]: Supra, para 58