Hamalengwa v. Law Society of Upper Canada, 2014 ONSC 1759

ASTON J. (orally)

1Mr. Hamalengwa applies for judicial review of a decision of the Law Society Hearing Panel dated November 5, 2013. He only seeks a review of the portion of the Hearing Panel’s decision dealing with jurisdiction.

2The applicant is a lawyer accused of misconduct in relation to publicly funded legal services he provided to a client on a first degree murder charge.

3Mr. Hamalengwa brought a motion before the Hearing Panel requesting a stay of proceedings. The Hearing Panel dismissed his argument that it lacked jurisdiction.

4On his jurisdictional challenge, the applicant submits: first, that factual and legal findings of the Assessment Officer in the prior assessment of his accounts under the Solicitor’s Act falls outside the purview of the Law Society Act; second, that certain allegations can only be dealt with by Superior Court judges, not the Law Society; and third, that allegations which are criminal in nature can only be addressed by a Court of competent jurisdiction.

5In short, his position is that the Law Society will exceed its statutory and constitutional jurisdiction if it embarks upon a hearing. He characterizes the issue as a “true question of jurisdiction”. He submits that, at the very least, until there has been an adjudication in the Superior Courts resulting in clear and unambiguous findings against him that the Hearing Panel has no jurisdiction over him.

6The Law Society concedes that this Court has jurisdiction to hear the judicial review application but submits that we should not exercise our discretion to do so because the application is premature.

7The Law Society submits that the applicant has an adequate alternative remedy that ought to be pursued before applying for judicial review. Sections 49.32 and 49.35 of the Law Society Act, R.S.O. 1990, c. L.8 permit an applicant to appeal a final decision or order of the Hearing Panel to the Appeal Panel of the Law Society. Section 49.3(a) permits a party to appeal a final decision or order of the Appeal Panel to this Court.

8The Law Society also submits that the Divisional Court has traditionally avoided the fragmentation of administrative proceedings, absent exceptional circumstances. It submits that the proper approach would be for the applicant to appeal the Hearing Panel’s decision to the Appeal Panel following the hearing. Then, if necessary, there would be a right of appeal from the Appeal Panel to this Court.

9It is not necessary for us to make a finding of whether the applicant’s motion raised a true question of jurisdiction. Even if the question can be characterized in that fashion, the need to avoid fragmentation prevails.

10In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, the Court of Appeal stated that even matters involving a true question of jurisdiction do not entitle a party to automatic access to the courts. Laskin J.A. stated at para. 61 that characterizing a question as one of true jurisdiction does not determine whether early judicial intervention is warranted. He went on to expand on that at paras. 68-70 in the following language:

68. Unless exception circumstances exist, a court should not interfere in an administrative proceeding until it has run its course. The principle has particular force where adequate alternative remedies are available under the administrative scheme. Ordinarily, an affected individual must pursue these remedies before seeking relief from the court.

69. The rationales for this principle are well known. The principle respects administrative decision-making and the legislature’s intent that internal review processes should be exhausted before the court intervenes. At the same time, the principle preserves the right of the court to intervene in those exceptional circumstances where the justice of the case calls for intervention. Stratas J.A. summarized the rationales for the principle in C.B. Powell v. Canada (Border Services Agency), 2010 FCA 61 (QL) at paras. 31-32, and I can do no better than quote his words.

Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.

This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge.

11Laskin J.A. then says:

70. In my view, this principle applies even though s. 2(1) of the Judicial Review Procedure Act provides that an application for judicial review may be brought “despite any right of appeal.” The ability to bring an application for judicial review does not compel the court to undertake judicial review – exceptional circumstances are still required to justify early intervention.

12Mr. Adler submits that the jurisdictional issue is narrow and a pure question of law that this Court could decide today. The result might avoid a four week hearing and perhaps further appeals or judicial review. Costs and efficiency are certainly factors to take into account in exercising our discretion to hear an application. However, those factors are not persuasive. The same argument could routinely be made in many cases. The pragmatic justification for our hearing the matter comes at a cost. It would seriously undermine the principles just quoted from Volochay.

13We accept the submissions of counsel for the Law Society that the statutory appeal mechanism provides an adequate alternative remedy which ought to be exhausted before judicial review and that the applicant has failed to establish exceptional circumstances that would justify departure from this Court’s established practice in avoiding fragmentation of the issue.

14The application is therefore quashed.

15I have endorsed the Record on behalf of the panel, “The application is quashed for oral reasons given and recorded. The applicant is to pay costs fixed at $7,500 all inclusive.”