CITATION: Amiri v. The Law Society of Upper Canada, 2015 ONSC 5253

DIVISIONAL COURT FILE NO.: 64/15

DATE: 20150828

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ALI AMIRI, Applicant/Appellant

AND:

THE LAW SOCIETY OF UPPER CANADA, Respondent

BEFORE: Kruzick, Perell and Dunphy JJ.

COUNSEL: Ali Amiri, acting in person

Leslie Maunder, for the Respondent

HEARD at Toronto: August 21, 2015

ENDORSEMENT

Nature of the Application

[1] The applicant, Mr. Amiri, asks this court to review and set aside an order of the Law Society appeal panel dated January 7, 2015. The appeal panel directed a new hearing before the Law Society hearing panel. That order, which Mr. Amiri seeks reviewed, was made when Mr. Amiri appealed an earlier order that was made by the Law Society hearing panel on February 13, 2014. The earlier order made a finding of professional misconduct and imposed a penalty and costs together with a six-month suspension.

[2] Mr. Amiri was successful at the appeal hearing so that the findings of professional misconduct against him were set aside. Mr. Amiri was not entirely happy with the result because he also asked the appeal panel to stay the professional misconduct allegations, which the appeal panel refused to do. He now seeks a judicial review of the appeal decision and asks this court to order a stay of prosecution. As an alternative, in his oral argument, he asks that the matter be returned to the appeal panel for rehearing on the issue of stay.

[3] For the reasons, that follow, we dismiss Mr. Amiri’s application for judicial review.

Background

[4] Mr. Amiri is a paralegal practicing in the province of Ontario. He is a member of the Law Society of Upper Canada (“LSUC”).

[5] The LSUC governs and regulates Ontario lawyers and paralegals in the public interest. The Law Society ensures that all lawyers and licensed paralegals in Ontario meet standards of learning, professional competence and professional conduct that are appropriate for the legal services provided to the public.

[6] As part of this mandate, the Law Society has established a hearing and appeal process responsible for determining the appropriate disposition of cases where there are allegations of incompetence and/or professional misconduct.

[7] In the case involving Mr. Amiri it is alleged he engaged in four particulars of misconduct: (1) practising beyond the scope of his paralegal licence; (2) failing to conduct himself in a way that maintains the integrity of the profession when he created a backdated letter to the LSUC; (3) marketing his legal services in a misleading way; and (4) failing to maintain proper books and records. The issues were brought before a hearing panel. In the course of that hearing Mr. Amiri sought an adjournment. The hearing panel denied the request and proceeded to make its decision.

[8] Mr. Amiri contended before the appeal panel that the hearing panel committed reversible error by refusing to grant his request for an adjournment. The appeal panel agreed that the hearing before the lower panel was conducted largely in the absence of Mr. Amiri and found a denial of procedural fairness or natural justice. As a result, the findings of professional misconduct and the penalty and costs orders of the lower panel were set aside. A new hearing was directed on all the particulars of professional misconduct in the event that the LSUC wishes to re-prosecute. Mr. Amiri is of the view that the appeal panel should have stayed the proceedings. That is the sole issue before this court.

Analysis

The Applicant’s request for a stay order

[9] Mr. Amiri contends that the appeal tribunal did not properly consider the evidence in support of his request for a stay. He submits that the tribunal should have considered his s. 24(1) Canadian Charter of Rights and Freedoms (“Charter”) argument that he would suffer substantial prejudice by a new hearing, as the suspension order was for six months but two years later the matter remains unresolved.

[10] Mr. Amiri made this argument with respect to the stay before the appeal panel. The panel, however, found that his submissions about staying the misconduct proceedings would be more appropriately addressed with the benefit of a full evidentiary record by a new hearing panel, if the LSUC chooses to re-prosecute. As a result, the hearing panel’s orders were set aside and a new hearing was directed.

The standard of review

[11] Mr. Amiri submits there was a breach of natural justice in the disposition of the appeal panel. He relies on London (City) v. Ayerswood Development Corp. (2002), 2002 3225 (ON CA), 167 O.A.C. 120, where the Court of Appeal directs that, where a breach of natural justice or procedural fairness is alleged, the reviewing court’s task is to evaluate whether the decision-maker adhered to the duty of procedural fairness. That duty entails (a) assessing the specific circumstances giving rise to the allegation and (b) determining what procedures and safeguards were required to comply with the duty.

[12] The LSUC argues that the granting of stay is discretionary and as such the appeal panel’s decision to refer the matter to the panel hearing the misconduct complaints is entitled to deference. It submits that if a decision is made that relies on inappropriate factors or misconstrues the test an appellate court is entitled to intervene but that did not occur in this case and thus the appeal panel made no reviewable order.

The stay

[13] Before this court, Mr. Amiri contends he was not dealt with fairly by the appellate tribunal when the stay was refused. He argues that he has suffered psychologically and financially, arguments he made before the appeal tribunal. Mr. Amiri relies on the fact that he was suspended from practice for six months and argues that he would suffer substantial prejudice from a new hearing. He is of the view that he is still being prosecuted given that the stay was denied. From the facts and the submissions in this court, there appear to be no restrictions on Mr. Amiri’s licence to continue his practice as a paralegal, subject to meeting outstanding administrative stipulations. Mr. Amiri is obviously frustrated by the refusal to grant the stay and the possibility of a rehearing.

[14] The test for granting a stay order sets a high threshold and in our opinion, the appeal panel quite correctly and quite fairly concluded that the matter of the stay should be addressed with the benefit of a full evidentiary record.

[15] The decision of whether or not to grant a stay for abuse of process is a discretionary decision entitled to deference. For issues of procedural fairness, it is not necessary for the court to engage in a standard of review analysis. Instead, this court must determine the duty owed and then determine whether that duty was breached.

[16] The issue of procedural fairness and denial of natural justice was recently dealt with by this court in Senjule v. Law Society of Upper Canada, 2013 ONSC 2817, 309 O.A.C. 1. In that case the court stated at para. 22:

In this case, the determination of whether there was a denial of natural justice or procedural fairness requires us to consider the exercise of a discretionary power. Given the deference that is usually accorded discretionary determinations, the standard of review in this case is akin to one of reasonableness. The inquiry must focus on whether the panel took account of relevant considerations in balancing the competing interests, and whether it made a decision consistent with the interests of justice. Natural justice and procedural fairness were infringed only if it can be said that the panel exercised its discretion in an unreasonable or non-judicious fashion.

[17] In our review of the decision before us, we are not able to find that natural justice and procedural fairness were infringed or that the panel exercised its discretion unreasonably.

[18] We agree with the respondent that the test for the granting of a stay requires a high threshold to be satisfied. As set out in the factum of the respondent, given the high test that must be met for a stay, the issue should be determined with the benefit of a full record.

[19] The record before the appeal panel was not a complete evidentiary record. The appeal tribunal addressed the issue very clearly at paragraph 43:

Mr. Amiri contends that we should stay the proceeding given the length of time that he has not practised and the impact of these proceedings upon him. These arguments are appropriately addressed, with the benefit of a full evidentiary record, by a panel of the Hearing Division, if the Law Society chooses to re-prosecute.

[20] The appeal tribunal did not have the benefit of a full evidentiary record and therefore we find no error in the decision.

Sufficiency of reasons

[21] Mr. Amiri also contends that the reasons given by the appeal tribunal for not granting the stay are inadequate and do sufficiently address his Charter arguments.

[22] A court reviewing the reasons given by an administrative tribunal must establish whether the reasons are reasonable. In other words, that they demonstrate “justification, transparency, and intelligibility” (New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47). These criteria are satisfied when the reasons, read together with the outcome, allow a reviewing court “to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes” (Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para. 16).

[23] Regarding the content of the reasons given, “reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis” (Newfoundland Nurses at para. 16). Further, “administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons” (Construction Labour Relations Assn. (Alberta) v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405, at para. 3).

[24] These principles were recently reaffirmed by this court in Byrnes v. Law Society of Upper Canada, 2015 ONSC 2939.

[25] In this case, the appeal panel explained at paragraph 43 that it would not address the request for a stay because the issue would be best dealt with by a hearing panel that has access to a full evidentiary record. The reasons address the length of time Mr. Amiri has not practised and the impact of these proceedings upon him. In our view, the reasons given by the tribunal are adequate. Indeed, if the panel had said much more it might have been unfair to one or to the other of the parties if the matter of a stay was presented to the new panel hearing the misconduct complaints.

Costs

[26] The Law Society seeks costs in the amount of $3,300.00.

[27] Mr. Amiri submitted that no costs order should be awarded because he finds himself in a difficult financial situation since the disciplinary proceedings commenced.

[28] Mr. Amiri is not an unsophisticated litigant. When Mr. Amiri brought this application he must have been aware that there could be costs consequences of an unsuccessful application.

[29] In the circumstances of this case, the panel deems it appropriate to order costs to the Law Society as requested.

Dispostion

[30] For these reasons, the application is dismissed.

[31] Costs are to the Law Society in any event of the cause and fixed in the amount of $3,300.

Kruzick J.

Perell J.

Dunphy J.

Date: August 28, 2015