Opara v. Law Society of Upper Canada, 2015 ONSC 3348

CITATION: Opara v. Law Society of Upper Canada, 2015 ONSC 3348

DIVISIONAL COURT FILE NO.: 471/14

DATE: 2015/10/04

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

R. J. SMITH, CORBETT AND HARVISON YOUNG JJ.

BETWEEN:

VICTOR NNAMDI OPARA Appellant (Respondent)

– and –

LAW SOCIETY OF UPPER CANADA Respondent (Applicant)

COUNSEL: Neil J. Perrier, for the Appellant (Respondent) J. Thomas Curry and Andrew M. Porter, for the Respondent (Applicant)

HEARD at Toronto: May 25, 2015

REASONS FOR DECISION

THE COURT:

Overview

[1] Mr. Opara appeals from the decision of a majority of the Appeal Division of the Law Society Tribunal (the “Appeal Panel”) overturning the Law Society Hearing Panel’s unanimous decision dismissing all five particulars of professional misconduct against him.

[2] The complaints arose from two separate and unrelated proceedings in which Mr. Opara had acted. The first, Ubochi v. Lebeanya (“the Ubochi proceeding”), was a proceeding in the Superior Court. In the second matter, A.M. v. The Michener Institute for Applied Health Sciences (“the HRTO proceeding”) Mr. Opara’s client was a complainant before the Human Rights Tribunal of Ontario (“HRTO”).

[3] The Respondent Law Society of Upper Canada (“Law Society”) issued a Notice of Application setting out the five particulars of professional misconduct as follows:

The Ubochi Proceeding

a) Mr. Opara breached Rules 4.01(1) and (2)(e) of the Rules of Professional Conduct (the "Rules") while advocating for his client on a motion for default judgment without notice to the opposing party by failing to advise the presiding judge that:

• the opposing party, Lebeanya, had retained counsel;
• opposing counsel was preparing materials to set aside the noting in default; and
• opposing counsel had not been given notice of the return date for the motion for default judgment:

thereby failing to ensure that the presiding judge was not misled.

b) Mr. Opara breached Rule 6.03(1) and (5) of the Rules by communicating with opposing counsel in a manner that was discourteous, uncivil, offensive, and otherwise inconsistent with the proper tone of a professional communication.

c) Mr. Opara engaged in sharp practice in breach of Rule 6.03(3) of the Rules by proceeding with the motion for default judgment without notice to the opposing party when:

• Mr. Opara knew that Lebeanya was represented and bringing a motion to set aside the noting in default;
• Mr. Opara refused to assist opposing counsel by providing necessary and available documentation for the motion to set aside the noting in default;
• Mr. Opara delayed in responding to opposing counsel such as to interfere with opposing counsel's efforts to serve and file the motion to set aside the noting in default prior to the Respondent's motion for default judgment;
• Mr. Opara had provided opposing counsel with an available date for the motion to set aside the noting in default; and
• Mr. Opara failed to notify opposing counsel of the date for the return of the motion for default judgment.

d) The Respondent breached Rule 6.03(2) of the Rules by unreasonably failing to approve two draft orders.

The HRTO Proceeding

e) Mr. Opara breached Rule 4.01(1) and (6) of the Rules by failing to treat the HRTO Vice-Chair with fairness, civility, courtesy and respect.

[4] The Hearing Panel concluded that all five particulars were unfounded and dismissed the Application. The Appeal Panel restored four of the five particulars ((a), (c), (d) & (e)) and remitted them to a new Hearing Panel. With respect to particular (b) alleging incivility with opposing counsel in the Ubochi proceeding, the Appeal Panel concluded that:

We cannot say that the hearing panel’s finding was unreasonable or tainted by the other errors identified in our reasons. (Appeal Panel Reasons for Decision, para. 150)

[5] Mr. Opara submits that the Appeal Panel erred both with respect to the standard of review applied and in failing to defer to the Hearing Panel’s findings of fact, its credibility findings and its weighing of the evidence, which he submits are questions of fact alone. Mr. Opara asks this Court to set aside the Appeal Decision and restore the Hearing Decision dismissing the complaints.

[6] The Law Society submits that the Appeal Panel applied the correct standard of review, namely that determinations of law were assessed by it on a standard of correctness and questions of mixed fact and law were assessed on a standard of reasonableness and it submits that the Appeal Panel’s decision was reasonable and is entitled to deference by this court. The Law Society asks us to dismiss the appeal and allow the remaining four particulars to be reheard on the merits.

Preliminary Issue: Is the Order of the Appeal Panel a Final Order?

[7] The court raised a preliminary concern with the parties in advance of the hearing of this appeal. Is the order of the Appeal Panel a final or interlocutory order? If it is interlocutory, on what basis does this court have jurisdiction to entertain this appeal?

[8] Both parties argued that the court should answer both questions in the affirmative.

[9] Under s.49.32(1) of the Law Society Act, a final order of the Hearing Panel may be appealed to the Appeal Panel. Under s.49.35(2), after holding a hearing on an appeal, the Appeal Panel may:

(a) make any order or decision that ought to or could have been made by the Hearing Panel or person appealed from;

(b) order a new hearing before the Hearing Panel, in the case of an appeal from a decision or order of the Hearing Panel; or

(c) dismiss the appeal.

[10] Section 49.38 of the Law Society Act provides that “[a] party to a proceeding before the Appeal Division may appeal to the Divisional Court from a final decision or order of the Appeal Division….”

[11] This court is a statutory court. Its jurisdiction on appeals from the Law Society Appeal Panel is confined to appeals from final orders.

[12] The Appeal Panel’s decision dismissing an appeal from the dismissal of particular (b) by the Hearing Panel is a final order. But it is not appealed to us.

[13] The Appeal Panel’s decision setting aside the decision of the Hearing Panel on the other four particulars and remitting those particulars to a new hearing, leaves the merits of those particulars to be tried again. Is this a final order or an interlocutory order?

[14] This question was raised before Nordheimer J. sitting alone in Divisional Court. He answered the question as follows:

The other ground advanced by Mr. Robson is his position that the order of the Appeal Division is interlocutory, not final, and therefore no appeal from it lies to this court. I do not agree with that position either. First, the distinction between interlocutory orders and final orders does not apply comfortably to decisions of appellate bodies in the same fashion that it does when one is dealing with a court or tribunal of first instance. In any event, insofar as that demarcation can be applied, in my view, the order of the Appeal Division is a final order. It has finally disposed of the appeal and the issues raised therein. Mr. Robson is correct that, if the Appeal Division’s order is sustained, there will have to be a fresh hearing held. However, what Mr. Robson does not seem to appreciate is that, if the order of the Appeal Division is in error, the decision of the first Hearing Panel will presumably be restored and the matter will then be concluded. If the latter result occurs, then the matter is finally disposed of. Law Society of Upper Canada v. Robson, 2014 ONSC 7254, para. 5 (Div. Ct.).

[15] We echo Nordheimer J.’s observation that the application of the distinction between final and interlocutory orders has a different dimension when the appeal before us is from an appellate decision rather than a decision at first instance. Most of the jurisprudence around this distinction arose at a time when administrative appeals did not exist. They are now commonplace.

[16] We conclude, as did Nordheimer J., that a final decision disposing of an appeal from a final order is, itself, a final order. It follows that we agree with the parties that this court has jurisdiction over this appeal pursuant to s.49.38 of the Law Society Act.

Appeal of Appeal Panel’s Decision

[17] We now turn to the substantive issues raised in this appeal. Mr. Opara argues first, that the standard of review is that of reasonableness and that the Appeals Tribunal failed to apply the correct standard of review, and second, that the Appeal Panel erred by improperly re-weighing the evidence and making its own findings of fact with respect to particulars (a), (c), (d), and (e).

Standards of Review

Before This Court

[18] The standard of review to be applied by this court in this case is reasonableness. In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] S.C.J. No. 17, the Supreme Court held that deference was owed to the decisions of specialized administrative tribunals and that their decisions were reviewable on a reasonableness standard. The Appeal Panel is a specialized tribunal that was interpreting its home statute, namely the Law Society Act and the Rules of Professional Conduct, and as a result its decision is reviewable on a standard of reasonableness: see Groia v. The Law Society of Upper Canada, 2015 ONSC 686 (Div. Ct.) at para 95.

Before the Appeal Panel

[19] It is clear from the Appeal Panel’s decision that it articulated the reasonableness standard of review as the applicable standard to be applied to the findings of fact and mixed fact and law made by the Hearing Panel. The parties agree that this was the correct standard of review. The parties also agree that the standard of review to be applied by the Appeal Panel with respect to errors of law by the Hearing Panel was correctness: Law Society of Upper Canada v. Crozier, 2005 38899 (ON SCDC), [2005] O.J. No. 4520 at para. 36 (Div. Ct.).

[20] The essence of Mr. Opara’s argument before this court is that while the Appeal Panel purported to apply the reasonableness standard to the Hearing Panel’s findings of fact and questions of mixed fact and law, it did not in fact do so, but rather reweighed evidence and substituted its own findings of facts and failed to defer to the Hearing Panel. We disagree. While the Appeal Panel identified discrete errors of law, the recurring theme in its reasons is that the Hearing Panel significantly misapprehended the evidence. As this court stated in Shooters Sports Bar v. Alcohol and Gaming Commission, 2008 25052 (ONSC) (Div.Ct.) at para. 38:

[38] There is no appeal from the Board’s decision on questions of fact. However, where a tribunal completely misapprehends the evidence or completely fails to take relevant and important evidence into account, this constitutes an error of law: Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., 1997 385 (SCC), [1997] 1 S.C.R. 748, at para 41.

Conduct Before the HRTO: Particular (e)

[21] Particular (e), arising from the HRTO proceeding, alleged that Mr. Opara breached Rule 4.01(1) and (6) by failing to treat the HRTO Vice-Chair with fairness, civility, courtesy and respect. The Hearing Panel reviewed the evidence before it. It concluded that Mr. Opara was a trustworthy witness and accepted his evidence in its entirety. It also concluded at paras. 141 to 169 of its reasons that no weight was to be given to the decision of Vice-Chair Martin in the HRTO proceedings. It declined to apply the decision in Law Society of Upper Canada v. Groia, ONLSP 94 on the basis that it was under appeal. It applied the test set out in British Columbia (Attorney General) v. Malik, 2011 SCC 18, and found that Mr. Opara had not had an opportunity to defend himself in the HRTO proceeding. The Hearing Panel stated:

The decision in Law Society of Upper Canada v. Groia, 2012 ONSLP 94 was cited in support of the issue of the opportunity to defend and whether in the former proceeding the person against whom the prior decision is being used had an opportunity to defend. The panel in Groia rejected the lawyer’s contention that he had not defended himself in the prior proceedings before the Superior Court of Justice and the Court of Appeal in R. v. Felderhof where his conduct was an issue before those courts on the question of whether the trial judge had lost jurisdiction. (Hearing Panel Reasons for Decision, para. 145)

[22] The Appeal Panel set out the largely unchallenged facts regarding Mr. Opara’s disrespectful conduct during the HRTO proceeding as follows:

[108] We are respectfully unconvinced that the hearing panel’s analysis of Mr. Opara’s conduct captured its most problematic features. In its analysis, the hearing panel focused on his lateness, his loud and angry reactions to Ms. Ross’s objections, his raised voice with the Vice-Chair, and his refusal to slow down when making submissions. However, in fairness, the Law Society relied upon the following descriptions of Mr. Opara’s conduct to support a finding of professional misconduct:

• Continually refusing to follow the Vice-Chair’s directions or failures to treat her with courtesy and respect, although explicitly warned about the consequences of his conduct;
• Continuing to argue after rulings were made and talking over the Vice-Chair, often only addressed by a break to permit him to calm down;
• Becoming irritated at his one client to the point that he initially said he was not going to ask him any more questions and then that he was not going to represent him anymore, requiring another break after he refused to follow the direction to continue calling the evidence;
• Indicating that he decided what was “relevant”, making no submissions on why the evidence he was calling was relevant, then laughing at the Vice-Chair’s direction to move on, and then, when the complainant continued to give evidence that had been overruled, arguing the same point again;
• In response to the Vice-Chair’s ruling, indicating that he was not seeking an adjournment, but preferred to put his client on the stand unprepared; then opposing Ms. Ross’s adjournment request (given her clients’ concern about the integrity of the process) which he objected to as a waste of time;
• After his objection was overruled, continuing to argue, becoming very agitated and loud, and indicating that if he could not speak, he would “walk out right now”. This was followed by shouting, requiring yet another break;
• Shouting at the Vice-Chair, and indicating that she was applying a different standard to his conduct which was racially motivated, requiring another break to enable him to calm down;
• Very loudly complaining about his perception of being treated unfairly, to a point where yet another break had to be taken;
• Indicating that it would be a waste of time to wait for the Vice-Chair’s ruling, and indicating once it was delivered, “Thank you to the Tribunal for wasting my one hour, 45 minutes.”
• Explaining one late arrival by saying he had a bowel movement.

[23] At paragraph 183 the Appeal Panel quoted Mr. Opara’s evidence that he did not agree that the Vice-Chair’s decision was a complete summary of the relevant events. He stated, “It substantively does not give an accurate representation of the events that happened. I also noticed a lot of repetitive things in some of the paragraphs, which are not correct.” However, Mr. Opara did not identify any specific factual findings made by the Vice-Chair with which he disagreed concerning his continual lateness or his conduct during the hearing, and he did not challenge these factual findings in cross-examination or in his submissions.

Analysis

[24] The majority of the Appeal Panel concluded that the Hearing Panel had misapprehended the evidence by failing to accord any weight to the findings made by the Vice Chair of the HRTO. In particular, before the Hearing Panel, the Law Society sought to rely on the Vice-Chair’s decisions as providing an accurate and detailed description of Mr. Opara’s conduct in the HRTO proceeding. The majority described the Hearing Panel’s treatment of this as follows at paras. 95-97:

[96] In determining what weight to be given to the Vice-Chair’s Decisions, the hearing panel relied upon the factors identified by the Supreme Court of Canada in British Columbia (Attorney General) v. Malik, supra. It decided that no weight whatsoever could be given to the Vice-Chair’s Decisions, largely because Mr. Opara purportedly had no opportunity to respond to the Vice-Chair’s decision to remove him as counsel. The Law Society takes no issue with the authority of the Malik decision, but challenges its application here.

[97] There are two errors disclosed by the hearing panel's approach. First, the Vice-Chair's detailed description of Mr. Opara's conduct was, to a great extent, unchallenged by Mr. Opara in his testimony. Moreover, Ms. Ross [Mr. Opara’s opposing counsel in the HRTO proceeding] confirmed much of what the Vice-Chair described -- and her testimony was largely unchallenged by the defence in cross-examination, by Mr. Opara in his own testimony, or by his counsel in closing submissions. Indeed, his counsel conceded that Mr. Opara did not largely dispute the descriptions of his conduct, but placed a "slightly different spin" on his conduct to explain it. This concession was fully warranted by the evidence. In these circumstances, it constituted serious error for the hearing panel to accord no weight whatsoever to the Vice-Chair's descriptions of Mr. Opara's conduct, regardless of whether he had an opportunity to respond to the Vice-Chair's decision to remove him as counsel.

[25] This conclusion was reasonable. It was explained in clear, detailed and rigorous reasons by the Appeal Panel majority. We do not agree that in these circumstances the Appeal Panel was engaging in a reweighing of the evidence or that it misapprehended the evidence.

[26] It is clear from this court’s decision in Groia that opinions from a predicate tribunal are admissible before a Law Society Hearing Panel conducting a hearing into alleged professional misconduct by a lawyer appearing before that predicate tribunal. As held in Groia, the weight to be placed on the opinions expressed by the predicate tribunal about the lawyer’s conduct is a matter for the trier of fact to assess.

[27] In the case at bar, however, the issue was not so much expressions of opinion by a predicate tribunal, as findings of fact by that tribunal which are relevant to the allegations of misconduct. On the principles in Groia, these findings are admissible before a Law Society hearing: see Groia, paras. 126-131.

[28] This is a developing and important area of the law in Law Society discipline jurisprudence. Standards of professionalism must apply during court and tribunal appearances. Descriptions of events by courts and tribunals must be taken into account for the Law Society to be able to enforce professional standards in those venues: judges and other tribunals cannot be compelled to give evidence at discipline proceedings. On the other hand, lawyers must be permitted to defend themselves in discipline proceedings. Sometimes that may involve challenging things said about them by judges or other tribunals.

[29] The Appeal Tribunal concluded that the Hearing Panel erred in principle in according no weight to the factual findings of the predicate tribunals. Most of those factual findings were supported by sworn evidence from commission counsel before the Hearing Panel. Most were not denied with any particularity by Mr. Opara. While questions of fact and credibility are matters for the Hearing Panel to decide, this does not give the Hearing Panel a basis to disregard factual findings made by predicate tribunals with no good reason for doing so. One example should illustrate this point.

[30] Mr. Opara was routinely late for proceedings before the HRTO. He provided explanations to the Vice Chair, which she accepted as the factual accounts as to how Mr. Opara came to be late, but which she did not accept as excusing his lateness. She considered Mr. Opara`s routine lateness to be unprofessional and discourteous.

[31] The Vice Chair’s findings as to how often and to what extent Mr. Opara was late are matters of fact within the knowledge of the Vice Chair and ordinarily should be accepted for the purposes of a proceeding before the Hearing Panel. It would be open to a lawyer in Mr. Opara’s position to deny a particular factual finding; tribunals can make mistakes. However, a denial would have to be specific and believable, and, where possible, corroborated by transcript or other evidence to overcome the weight one would expect to be accorded to a factual finding of matters within the predicate tribunal’s knowledge.

[32] The question of whether the lawyer’s conduct, as revealed in the facts, amounts to professional misconduct, is a matter for the Hearing Panel to decide. It may consider any opinion expressed on this point by the predicate tribunal, but the weight to be accorded that opinion is a matter of discretion, and the Hearing Panel must make up its own mind on whether standards of professional conduct have been breached.

[33] There was no basis for the Hearing Panel to disregard the Vice Chair`s findings as to how often Mr. Opara was late, how late he was, and what explanations he gave for his conduct.

[34] The Hearing Panel conflated findings of fact made by the predicate tribunals with expressions of opinion by those tribunals, and thus failed to accord appropriate weight to the HRTO’s findings of fact. Indeed it accorded the Vice-Chair’s findings no weight at all. The Appeal Panel found this to be a misapprehension of the evidence. This conclusion was reasonable.

[35] The Appeal Panel considered Mr. Opara’s conduct in the context of his inexperience, his feeling of helplessness, his inability to respond, his lack of an office, any office equipment or support staff, his stated difficulties getting to the hearing on time, and the fact that he was facing a much more experienced counsel. However they decided that these factors did not justify the Hearing Panel’s decision to dismiss all of the complaints of unprofessional conduct. This was reasonable. As should be obvious from a review of this list of factors, they are more material to the issue of penalty than to whether objective standards of professional conduct have been breached.

[36] The Appeal Panel found that the Hearing Panel erred in refusing to consider the findings and rulings of the HRTO Vice-Chair. As explained above, the view that this was an error of law finds support in this court’s recent decision in Groia, and its view that the matter should be remitted back for a new hearing was reasonable on this basis. Had it properly considered the evidence which it refused to consider on the basis of its application of Malik and its failure to apply Groia, it might well have come to a different conclusion on the weight of all the evidence.

Conduct in the Ubochi Proceedings: Particulars (a), (c) and (d)

[37] The facts related to particulars (a), (c) and (d) were largely uncontested. The unchallenged facts related to particular (a) are as follows:

(a) When Mr. Opara appeared on the motion for default judgment on February 23, 2014, he did not advise Herman J. of the following facts:

• that he was aware that the opposing party had retained counsel;
• that he had been advised that opposing counsel was preparing materials to set aside the noting in default; and
• that he did not advise opposing counsel of the date of his motion for default judgment, even though he spoke with him on the day before the motion for default judgment was heard by Herman J.

[38] Mr. Opara testified before the Hearing Panel that he told Herman J. that he had received some correspondence but she stated that she was not interested. Mr. Opara did not state that he had advised or tried to advise Herman J. that the defendant had retained counsel, that he was preparing materials to set aside the noting in default, and that he had not told the opposing counsel about the default motion date. On a without notice motion, a lawyer has a duty to provide full and frank disclosure to the Court, which he failed to do in this case. The largely uncontested facts related to particular (c) are that Mr. Opara proceeded with the motion for default judgment by:

• knowing Mr. Opara was represented by counsel and was bringing a motion to set aside the noting in default;
• refusing to assist opposing counsel by failing to provide him with copies of the available documentation;
• providing opposing counsel with a date on which he was available to proceed with the defendant’s motion to set aside the noting in default; and
• failing to notify opposing counsel that his motion for default judgment was proceeding before Herman J. on the following day.

[39] The uncontested facts with regards to particular (d), are that Mr. Opara refused to approve the two draft orders, which then necessitated a motion to settle the orders and resulted in his client paying additional costs. Mr. Opara testified that he failed to approve the orders sent to him because he was unable to act for fear of making an error and so he did nothing.

Analysis

[40] First, the Hearing Panel declined to give any weight or to consider the facts found by the Superior Court judges in the Ubochi proceeding. In this regard, Corrick J. grounded her decision to set aside the default judgment obtained by Mr. Opara on the following facts which were not, in themselves, contested:

following the adjournment granted by Spence J. on February 3, counsel for the plaintiff, Mr. Opara was given notice that the defendant had retained counsel who was preparing a motion to set aside the noting in default, and further, that counsel for the plaintiff and defendant had agreed upon April 15th for the hearing of the motion to set aside the noting in default. Despite all of this, Mr. Opara proceeded with the plaintiff’s motion for default judgment, without advising Mr. Milosevic [counsel for the defendant] of the motion and without advising Herman J. [who heard the motion] of Mr. Milosevic’s retainer and the April 15th motion brought by the defendant.

[41] As discussed above in relation to the HRTO proceeding, the Appeal Tribunal reasonably found that the Hearing Panel wrongly applied the Malik decision in refusing to give Corrick J’s reasons any weight, and that it misapprehended the evidence as a result. The Hearing Tribunal’s criticism of Corrick J. does not provide a proper basis for ignoring Corrick J.’s factual findings, and the Appeal Panel majority’s conclusion to this effect is reasonable.

[42] With respect to particular (a), “failing to ensure that the judge was not misled”, the Appeal Panel also found that the Hearing Panel misapprehended the evidence bearing upon whether Mr. Opara could have known what Mr. Milosevic’s understanding was with respect to the default proceedings. It also found that the Hearing Panel had misapprehended or failed to appreciate the evidence by accepting Mr. Opara’s evidence uncritically and without taking account of evidence presented by the Law Society and other accounts given by Mr. Opara himself. It noted that the Hearing Panel was entitled to accept Mr. Opara’s credibility, despite alleged inconsistencies, but stated that “…it [the Hearing Panel] was not entitled to treat highly disputed evidence as uncontroversial or uncontradicted or to misapprehend the evidence on point” (Appeal Panel Reasons, para. 133).

[43] With respect to particular (c), sharp practice was alleged to have consisted of proceeding with the default motion without advising opposing counsel of the true state of affairs. The Appeal Panel concluded that, as was the case with particular (a), the Hearing Panel’s finding was based on a misapprehension of the evidence which tainted the Hearing Panel’s assessment of whether Mr. Opara engaged in sharp practice and which therefore compelled a new hearing on this particular.

[44] Finally, with respect to particular (d), the Appeal Panel found that the Hearing Panel erred in law by dismissing the allegation that he had breached Rule 6.03(2) which states:

A lawyer shall agree to reasonable requests concerning trial dates, adjournments, the waiver of procedural formalities, and similar matters that do not prejudice the rights of the client.

[45] The Hearing Panel explained its conclusion as follows:

[227] The approval of draft court orders as to form and content is not an activity that is captured by Rule 6.03(2). Rule 6.03(2) covers scheduling matters, procedural formalities and similar matters. The approval of a court order is a substantive legal matter that could prejudice the rights of the client. […]

[229] Disputes about the approval of court orders on the facts and in the circumstances of this case should never be the subject of disciplinary proceedings by the regulator.

[46] In finding that this conclusion was wrong in law, the Appeal Panel explained at para. 146:

A party is entitled to challenge a draft order and insist that it be settled in accordance with the Rules. However, a lawyer's unreasonable refusal to approve a draft order, in circumstances where its terms are uncontentious and will inevitably be settled in accordance with the draft, may well constitute a violation of Rule 6.03(2). If a lawyer refuses to approve a draft order that could prejudice his or her client's rights, such refusal would, of course, not constitute a breach of the Rule; nor would such a refusal based on a lawyer's good faith view that the draft is inaccurate and as such, could prejudice his client. That is not what was alleged here. It was alleged that Mr. Opara acted in bad faith in failing to respond to efforts to settle the orders, and ultimately in refusing to approve them. The failure to respond to such efforts, in the absence of good faith, would also likely result in adverse costs implications for the client. Indeed, costs were awarded against Mr. Opara's client in relation to the settlement of Justice Corrick's order.

[47] This error in law required another hearing, although as the Appeal Panel noted at para. 147,

A hearing panel, on a correct understanding of the law, might still conclude that Mr. Opara's refusal did not rise to the level of misconduct, having regard to his alleged traumatization and concerns about further missteps. That will be for another hearing panel to determine.

[48] In our view, the Appeal Panel’s conclusion that the Hearing Panel erred in its interpretation of the Rule was reasonable. It clearly sets out the basis for its interpretation of the Rule and its view that refusal to approve a draft order could constitute sharp practice. It draws the distinction between recognizing that such a refusal could constitute sharp practice and recognizing that whether it does or does not will depend on the particular evidence and circumstances of such a refusal, which is a distinction that the Hearing Panel did not draw.

Conclusion

[49] In summary, the Appeal Panel carefully and thoroughly reviewed the Hearing Panel’s decision and the record before it. The Appeal Panel found that the Hearing Panel erred in law in refusing to give any weight to findings made by Vice-Chair Martin in the HRTO proceedings and Justices Corrick and Brown in the Ubochi proceedings, and that it had misapprehended the evidence as a result of this error. The decision of the Appeal Panel was reasonable and its reasons meet the standards of justification, transparency and intelligibility: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47. The appeal is therefore dismissed.

Costs

[50] Costs are awarded to the Law Society in the amount of $10,000.00 payable within thirty days.

___________________________ R. J. SMITH J.

D. L. CORBETT J.

HARVISON YOUNG J.

Released: November 4, 2015

CITATION: Opara v. Law Society of Upper Canada, 2015 ONSC 3348

DIVISIONAL COURT FILE NO.: 471/14

DATE: 2015/07/__

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

R. J. SMITH, CORBETT AND HARVISON YOUNG JJ.

BETWEEN:

VICTOR NNAMDI OPARA Appellant (Respondent)

– and –

LAW SOCIETY OF UPPER CANADA Respondent (Applicant)

REASONS FOR DECISION

R. J. SMITH J. D. L. CORBETT J. HARVISON YOUNG J.

Released: October __ 2015