Coady v. Law Society of Upper Canada, 2014 ONSC 5711

Coady v. Law Society of Upper Canada, 2014 ONSC 5711

CITATION: Coady v. Law Society of Upper Canada, 2014 ONSC 5711

DIVISIONAL COURT FILE NO.: 249/12

DATE: 20140930

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SWINTON, NORDHEIMER AND RAMSAY JJ.

BETWEEN:

MARY MARTHA COADY

Appellant

– and –

THE LAW SOCIETY OF UPPER CANADA

Respondent

In Person

James Thomas Curry and Jaan Erick Lilles, for the Respondent

HEARD at Toronto: September 30, 2014

ORAL REASONS FOR JUDGMENT

NORDHEIMER J. (orally)

1Ms. Coady appeals the decision of the Law Society Appeal Panel dated April 11, 2012 that dismissed her appeal from the decision of a Hearing Panel dated June 3, 2009 and the penalty determination dated December 11, 2009. Ms. Coady was found to have committed a number of acts of professional misconduct including engaging in frivolous litigation, failing to respond to communications from the Law Society, failing to account to clients and uttering a false document. As a consequence, her licence to practice was revoked.

2This matter has had a long history. Indeed, the acts of professional misconduct themselves spanned a period from 1992 to 2006. The matter is sufficiently dated that the complaint itself arose before the current Law Society discipline procedure came into being on February 1, 1999 as a result of the passage of the Law Society Amendment Act, 1998, S.O. 1998, c. 21. That history sparks the first, and seemingly most important, complaint advanced by Ms. Coady which is that the Hearing Panel did not have any jurisdiction to hear the matter.

3When the current discipline regime came into being, the legislation provided for a transition of existing matters from the old regime to the new regime. The Hearing Panel concluded that s. 35(2) of the Law Society Amendment Act applied to Ms. Coady’s situation because a proceeding had been commenced prior to the changes. Section 35(2) reads:

If, before the day this Act comes into force, no hearing was commenced in a proceeding referred to in subsection (1), the proceeding shall, with necessary modifications, be continued under the provisions of the Act, as amended by this Act.

4On appeal, the Appeal Panel disagreed with that conclusion and found that neither of the transition provisions in s. 35 applied in this situation because of its conclusion that no proceeding had been commenced prior to the effective date of the regime change. Consequently, the Appeal Panel determined that the matter was to be governed by the general provisions of the Interpretation Act, R.S.O. 1990, c. I.11, particularly s. 14. That section essentially provides that the matter should be governed by the new regime with any necessary adaptations.

5The Appeal Panel then reviewed the various steps that had been taken in this matter prior to the formal commencement of the hearing and concluded that, allowing for any necessary adaptations, all requisite steps had been taken to validate the procedure under the new regime.

6There are two prongs to Ms. Coady’s argument in this regard. One is that the Appeal Panel erred in relying on the Interpretation Act as the operative legislation directing the transition of her matter between the old discipline regime and the new one. The other is that there was no evidence before either the Hearing Panel or the Appeal Panel that the requisite preliminary steps had been properly undertaken by the Law Society in initiating the complaint.

7On the first point, I am more inclined to the analysis that the Hearing Panel undertook and its conclusion that the transition was governed by s. 35(2) than I am by the Appeal Panel’s reliance on the Interpretation Act. However, regardless of which analysis is the correct one, the result is the same. The clear intention of the Legislature was to ensure that in moving from the old regime to the new regime all existing proceedings would be continued with such adaptations as might be necessary. It was not in the public interest to have existing matters have to go back to square one and be recommenced but that would be the effect if Ms. Coady’s position was accepted.

8In terms of the second point, Ms. Coady places great reliance on the decision in Codina v. Law Society [2000] L.S.D.D. 77 where the discipline process was held to be invalid because there was no evidence that the Secretary had authorized the commencement of the process. The situation here is different, however. In Codina, Convocation found that the Law Society could have led evidence on this point, in some fashion (see para. 50) but had not done so. In this case, the agreed facts are that the complaint involving Ms. Coady would not have proceeded to the Discipline Authorization Committee without the Secretary first having formed the opinion “that such a referral was required”.

9The Hearing Panel was entitled to rely upon that evidence to conclude that the necessary opinion had been formed by the Secretary of the Law Society to refer the matter to the Discipline Authorization Committee. It was reasonably open to the Appeal Panel to affirm that conclusion. There was also evidence that two members of that committee had authorized the matter to proceed to a hearing. It was after that decision that the new regime came into being. After that point in time, the matter proceeded in accordance with the new regime.

10The only question that even remotely arises on the facts is that the Proceedings Authorization Committee (that replaced the Discipline Authorization Committee in the new regime) did not authorize the matter to proceed to a hearing. However, as the Appeal Panel correctly noted, two bencher members of the Discipline Authorization Committee did authorize the matter to proceed and the two members of that committee constituted a quorum for purposes of the new Proceedings Authorization Committee. The end result, therefore, was the same. Indeed, from a practical perspective, the only difference between the two is the name of the committee involved. Of more importance is the fact that Ms. Coady still received the benefit of all of the safeguards built into the discipline process and was not prejudiced in any way from the manner in which the complaints against her proceeded. To allow the technical argument that she advances to carry the day, and render this whole process invalid, would be to achieve a new height in advancing form over substance.

11The second issue that Ms. Coady raises is a claim of procedural unfairness that centres around her complaint that neither the Hearing Panel nor the Appeal Panel allowed her to obtain a file from the RCMP involving an investigation that Ms. Coady contends is relevant to the complaints against her. The problem with that contention is that Ms. Coady failed to demonstrate to the Hearing Panel, or to the Appeal Panel, that the contents of the RCMP file had any relevance to the complaints that she faced. As the Appeal Panel noted, at para. 233:

As found by the hearing panel, the materials relied upon by the appellant do not provide any support whatsoever for the appellant’s position.

12I note, on this point, that Ms. Coady has advanced the alleged relevance of this material on a number of other occasions, including in court proceedings. It has been found to be wanting on all of those other occasions.

13Ms. Coady seems to be of the view that all that is required to make this material relevant is for her to simply assert that it is relevant based solely on her belief as to what constitutes the facts in this case. That is not, however, sufficient. Ms. Coady must demonstrate something in the record that would establish a factual foundation for the conclusion that the contents of the RCMP file, whatever they may be, are of relevance to the actions that she took and that are the subject matter of the complaints against her. Ms. Coady has been unable to establish that factual foundation. Both the Hearing Panel and the Appeal Panel were therefore correct in rejecting her contention that the file was relevant to the matter before them. I would also note, in passing, that the contents of the RCMP file, even accepting what Ms. Coady asserts they would reveal, would be of no relevance to any of the complaints that she faced save for the complaints regarding participating in frivolous or vexatious litigation respecting her former spouse.

14On that latter point, Ms. Coady also complains that she was precluded from leading evidence to demonstrate that the litigation was not frivolous or vexatious. That is not a fair characterization of how the Hearing Panel or the Appeal Panel approached those complaints. The Hearing Panel did preclude Ms. Coady from re-litigating certain findings that had been made by various judges and at least once affirmed by the Court of Appeal. Without accepting the Appeal Panel’s reliance on the doctrine of issue estoppel as mandating that result, I do agree that the concept of abuse of process, also relied upon by the Appeal Panel, was a sufficient basis for precluding Ms. Coady from attempting to collaterally attack the court’s findings. The balance, of what Ms. Coady complains was a refusal to allow her to lead evidence on these complaints, relates back to the issue of the RCMP file that I have already dealt with.

15There are no other matters raised that could call into question the validity of the conclusions reached by the Hearing Panel as affirmed by the Appeal Panel.

16The appeal is dismissed.

SWINTON J.

17I have endorsed the Appeal Book, “This appeal is dismissed for oral reasons delivered by Nordheimer J. today. Costs payable to the respondent Law Society are fixed at $25,000 all inclusive.”