Payne v. Law Society of Upper Canada, 2014 ONSC 1083
CITATION: Payne v. Law Society of Upper Canada, 2014 ONSC 1083
DIVISIONAL COURT FILE NO.: 13-369-JR
DATE: 20140325
ONTARIO
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT AT TORONTO
BETWEEN:
Jonathan Bruce Payne Applicant
– and –
The Law Society of Upper Canada Respondent
Self-represented
Leslie Maunder, for the Respondent
HEARD: February 10, 2014
By the court
[1] The applicant seeks judicial review of a decision of the Appeal Panel[^1] of the Law Society of Upper Canada dated July 15, 2013, dismissing an appeal from a decision of the Hearing Panel dated June 13, 2012 that dismissed his application for a paralegal licence because he had not met the good character requirement in s. 27(2) of the Law Society Act[^2].
Motion for leave to file fresh evidence
[2] Prior to the hearing of the judicial review application, we heard and dismissed the applicant’s motion to introduce fresh evidence indicating that reasons would follow. These are the reasons.
[3] The fresh evidence fell into two categories:
(a) evidence that Jason Herbert worked in the office of Susan Hare (Chair of the Hearing Panel) and for Mary Ann MacDonald (a witness called by Law Society counsel);
(b) evidence aimed at impeaching the credibility of the witness Mary Ann MacDonald.
[4] The evidence that Mr. Herbert was associated to Ms. Hare’s office and then later to Ms. MacDonald’s office is tenuous. It has no probative value in support of the applicant’s submission that there was a reasonable apprehension of bias on the part of the Hearing Panel. The applicant was aware of the evidence at the time of the Appeal Panel hearing but did not raise it or attempt to rely upon it.
[5] The fresh evidence aimed at impeaching the witness was known to the applicant prior to the hearing by the Hearing Panel. It was not used at that time. Indeed, counsel for the applicant did not cross-examine Ms. MacDonald.
[6] All of the proposed fresh evidence was available prior to the hearing of the Appeal Panel and could have been adduced then by the exercise of due diligence. The evidence has little or no probative value and does not bear upon a decisive or potentially decisive issue. The evidence could not be expected to have affected the result of the Hearing Panel, much less the Appeal Panel. The evidence tendered does not meet the test in R. v. Palmer.[^3]
Issues raised by the applicant
[7] The applicant argues that the conclusions of the Appeal Panel are not supported by the evidence and adequate reasons or are the result of a misapplication of the appropriate standard; that the Appeal Panel’s findings with respect to his breach of the undertaking are not supported by the evidence or are the result of the application of an arbitrary and unilateral standard; that the Appeal Panel’s findings with respect to the truthfulness of the witnesses called on behalf of the Law Society are not supported by the evidence and the Appeal Panel prejudged the applicant’s submissions on this issue; that the Appeal Panel discriminated against the applicant or engaged in abuse of process by permitting counsel for the Law Society to elicit false testimony from its witnesses; that there was a reasonable apprehension of bias against the applicant arising from a potential conflict of interest of the Hearing Panel Chair; that the applicant had ineffective counsel[^4] before the Hearing Panel and the Appeal Panel should have taken that into consideration; that the cumulative errors amount to an abuse of process or denial of natural justice or procedural fairness.
Standard of Review
[8] A finding of fact or of mixed fact and law cannot be reversed absent a palpable and overriding error. Questions of law and principle are reviewable for correctness.[^5]
[9] On issues of denial of procedural fairness or a breach of the principles of natural justice, there is no standard of review. A person who is denied procedural fairness or natural justice has not had a fair hearing and the decision flowing from that hearing must be set aside.[^6]
The Undertaking
[10] The applicant was called to the bar in British Columbia in 1983. His discipline history is contained in the earlier decisions. In 1995, he moved back to Ontario and in 1998 began practicing as a paralegal. In 2000, the Law Society considered prosecuting him for unauthorized practice. The matter was resolved when the applicant signed an undertaking on May 30, 2000 which included the following paragraph:
That I will cease forthwith in providing any assistance or legal advice or representation in areas not authorized by Statutes for agents and including, without restricting the generality of the foregoing, separation agreements, divorce, wills, real estate, incorporations and the provision of legal advice [generally[^7]].
[11] That undertaking was a key issue before the Hearing Panel, the Appeal Panel and before this court.
The Hearing Panel
[12] The Hearing Panel found that the applicant was obligated to disclose the undertaking in his application to be licensed as a paralegal and that his failure to do so was misleading. Notwithstanding that the Hearing Panel rejected much of the evidence of the witnesses called on behalf of the Law Society, the Hearing Panel made findings regarding the applicant’s conduct of the client files which findings were consistent with the applicant’s evidence that he had provided unauthorized services by negotiating separation agreements and drafting Superior Court documents, that he failed to advise of his bankruptcy in a timely manner, that he failed to serve his client (by not filing the amended Lewis Claim), failed to protect client funds, and failed to protect a client’s confidentiality. The Hearing Panel’s greatest concern was that he had failed to follow the undertaking for a period of approximately 5 years. The Hearing Panel dismissed his application.
The Appeal Panel
[13] The Appeal Panel agreed with the applicant that the Hearing Panel erred in finding that his application for a licence was misleading for not disclosing his undertaking. While agreeing that that was a fact material to the application, the Appeal Panel held that none of the questions on the application form required the applicant to disclose the undertaking. The Appeal Panel considered whether the error had mattered and held that the Hearing Panel’s conclusion as to the applicant’s good character would not have been any different because the decision to reject his application was based largely on the breach of the undertaking and his own admitted conduct of his client files. The Appeal Panel dismissed all other grounds of appeal.
Analysis
A. Inconsistent findings of fact
[14] The applicant took the position that the Hearing Panel made inconsistent findings in that it held at paragraph 84 of its decision that the Panel was “not sure” if he understood at the time of the hearing what the limitations were according to the undertaking yet went on to reject his uncontradicted evidence that he honestly but mistakenly believed that the undertaking did not prohibit the services he had performed. He argued that the decision of the Appeal Panel failed to address this apparent discrepancy.
[15] We do not accept that submission. In paragraph 54(f) the Appeal Panel did address the apparent discrepancy, at least by necessary inference where it held that the undertaking was unequivocal and the applicant had clearly breached the undertaking. In the course of its reasons, the Appeal Panel accepted the findings of the Hearing Panel that the applicant had breached the undertaking in relation to Ward by drafting Superior Court documents for her; by preparing a separation agreement for Keetch; and by representing Coombs in negotiating the terms of a separation agreement.
[16] There was evidence before the Hearing Panel that was affirmed by the Appeal Panel, that the applicant had breached his undertaking repeatedly over the course of several years. The Appeal Panel drew the reasonable inference that because the undertaking was so clear and unequivocal, that it was deceitful and dishonest for the applicant to claim an honest but mistaken belief in that regard.
[17] To accept the submission as to the apparent inconsistency would require us to analyze the reasons for decision of the Appeal Panel by focusing on specific passages. On a judicial review application, the court must not parse reasons too closely to find some error, but must look at the reasons as a whole. In the context of the other findings of fact by the Hearing Panel, the apparent discrepancy noted in paragraph 84 of its reasons can be understood to mean that the applicant may not have known all of the exact boundaries of the undertaking but that he must have known from the clear wording of the undertaking that certain activities he engaged in were prohibited.
B. Effect of the Appeal Panel overturning the finding of the Hearing Panel
[18] As indicated above, the Appeal Panel overturned the finding of the Hearing Panel that the failure of the applicant to disclose the undertaking on his application for a licence was misleading. The Appeal Panel then reviewed the impact of that finding on the decision made by the Hearing Panel that the applicant had failed to fulfill his onus of establishing the good conduct requirement. We are not persuaded that the Appeal Panel made any errors in law in its analysis of this issue or its conclusion that the finding that it overturned did not have an impact on the outcome.
C. Credibility of evidence of LSUC witnesses
[19] The Hearing Panel rejected much of the evidence called by counsel for the Law Society. Before the Appeal Panel and before us, the applicant argued that the evidence was deliberately false and that counsel for the Law Society had knowingly led false evidence.
[20] The Hearing Panel carefully analyzed the evidence and was clear on that evidence which it accepted and on which it relied. On this issue, we are not persuaded that the Appeal Panel made palpable and overriding errors. Indeed there is no basis in the record before us for the allegation that the evidence was deliberately false or that counsel knowingly led false evidence.
D. Rejection of uncontradicted evidence
[21] The Applicant challenged the acceptance by the Appeal Panel of the findings made by the Hearing Panel. He pointed out that the Hearing Panel had rejected much of the evidence of witnesses called on behalf of the Law Society and that left his own evidence which was uncontradicted in many important areas.
[22] It is not an error of law to reject evidence just because that evidence is uncontradicted. Where the evidence is of one’s state of mind, it is sometimes appropriate to be skeptical of that evidence, even if the witness is found to be candid and honest on other aspects of his or her testimony. The Law Society conceded that the applicant had been candid in his application to be licensed and on many facts and issues. We agree that it was open to the Hearing Panel to reject his uncontradicted evidence in light of all of the other evidence including the evidence about breaches of the undertaking. We are not persuaded that the Appeal Panel made palpable and overriding errors in accepting those findings of fact and findings of mixed fact and law.
E. Apprehension of bias or abuse of process or denial of natural justice or procedural fairness
[23] As indicated above, we dismissed the motion for leave to file fresh evidence on which much of the applicant’s submissions on these points were based. There is no basis in the record before us for these allegations.
Conclusion
[24] We have arrived at similar conclusions to those reached by the Divisional Court in Gold v. LSUC[^8], namely that the Appeal Panel’s finding that the good character hearing was fair and its conclusion that the Hearing Panel’s findings were amply supported by the evidence is entitled to deference and was reasonable. The decision of the Appeal Panel to uphold the Hearing Panel (except in one respect which did not impact the outcome) was reasonable. No errors of law have been established. The applicant is seeking to reargue his case on the merits and have this court reweigh the evidence. This is not our role on judicial review. Furthermore, relying on natural justice submissions does not advance his position when there is no basis in the record before us for any of those allegations.
[25] The application for judicial review is dismissed. The applicant and counsel for the Law Society agreed on the amount of costs depending on which party was successful. Accordingly, the applicant shall pay costs to the respondent fixed in the amount of $2500 all inclusive.
Kiteley J.
Aston J.
Whitaker J.
Released:
CITATION: Payne v. Law Society of Upper Canada, 2014 ONSC 1083
DIVISIONAL COURT FILE NO.: 13-369-JR
DATE: 20140325
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Jonathan Bruce Payne Applicant
– and –
The Law Society of Upper Canada Respondent
Released: Kiteley J. Aston J. Whitaker J.
[^1]: The Applicant also seeks judicial review of a decision of the Hearing Panel but that is not properly the subject of this judicial review application. [^2]: R.S.O. 1990, c. L.8 [^3]: 1979 8 (SCC), [1980] 1 S.C.R. 759 at 775-777 [^4]: The applicant did not pursue the issue of ineffective counsel. [^5]: Housen v Nikolaisen 2002 SCC 33, [2002] 2 S.C.R. 235 [^6]: Igbinosun v. LSUC (2008) O.J. (Div.Ct.) at para 10 [^7]: The Applicant takes the position that the word “generally” was added after he had signed the undertaking. Whether it was added after he signed is not relevant to the words which precede it. Nor is it relevant to this judicial review application. [^8]: 2013 ONSC 1229 at para 6 and 8