CITATION: Riddell v. The Law Society of Upper Canada, 2016 ONSC 6631
DIVISIONAL COURT FILE NO.: 453/14 DATE: 20161017
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
DAMBROT, BALTMAN and THORBURN JJ.
BETWEEN:
MATTHEW RIDDELL
Applicant
– and –
THE LAW SOCIETY OF UPPER CANADA
Respondent
Self-represented
Suzanne Jarvie, for the Respondent
Lisa Mallia, for The Law Society Tribunal
HEARD at Toronto: October 17, 2016
DAMBROT J. (Orally)
[1] This is an application for judicial review of the decision of the Appeal Panel of the Law Society of Upper Canada upholding the Law Society Hearing Panel’s decision to award costs in the amount of $17,500.00 against the Applicant following his abandonment of an application for a Class P1 license.
Request for Adjournment
[2] At 5:00 p.m. on Friday October 14, 2016, the Applicant filed a notice of motion seeking an order adjourning this hearing for several months. The grounds for the motion were that he had filed certain records, particularly a psychological report, that he said could be used against him maliciously in other proceedings, and he wanted to bring a motion before a single judge of this Court prior to the hearing of the judicial review application for an order sealing these documents and anonymizing the title of proceedings.
[3] The psychological report in issue was filed in this Court as part of the Record in December 2015, and has been part of the public record ever since. Despite this, the Applicant has never brought a motion to seal these records or anonymize the title of proceedings to date. We have nothing before us about a motion to a single judge except his statement of intent. Even if the Applicant had filed a notice of motion, there is no reason that it could not have been heard by us this morning, obviating the need for an adjournment.
[4] In all of the circumstances, we refused the request for an adjournment. We are not insensitive to the concern that the Applicant has about privacy. With the concurrence of counsel for the Law Society, who argues that the report is irrelevant, and notes that in any event the report should not have been included in the record without the bringing of a motion, we will order the report removed from the record, sealed, and maintained in the Court file, not to be opened without a further order of this Court.
[5] We wish to be clear that we are not suggesting that the filing of a psychological report in a Law Society proceeding should ordinarily be sealed. But since the report ought not to have been filed in the record without the permission of the Court, we are prepared, exceptionally, to make such an order in this case.
Background
[6] Between 2007 and 2012 the Applicant brought and subsequently abandoned three applications for a Class P1 paralegal license with the Law Society. Each of the applications was abandoned after the commencement of proceedings and after the Applicant failed to obtain an adjournment of the hearing date. Following each abandonment, the Applicant immediately reinstated his application.
[7] The Applicant submitted a Notice of Abandonment for the third application on September 7, 2012, three days prior to the scheduled good character hearing, and after the Law Society had completed its investigation and hearing preparation. Upon delivery of the Notice, the Applicant was informed by the Law Society’s counsel that the Society would be seeking costs.
[8] On September 9, 2012, the Law Society sent an email to the Applicant notifying him that the Society took issue with the form of his Notice of Abandonment and confirming that the Respondent would be making submissions on costs. The Applicant responded by forwarding written submissions arguing that the Hearing Panel lacked jurisdiction to order costs. The Applicant took the position that the proceeding was terminated at the moment when he filed the Notice of Abandonment, and as a result, the Hearing Panel did not have jurisdiction to deal with costs.
[9] On September 10, 2012, the Law Society Hearing Panel proceeded with the scheduled hearing. Neither the Applicant nor his counsel was present at the hearing despite being notified of it, but the Hearing Panel had the Applicant’s written submissions before it. The Hearing Panel accepted the Notice of Abandonment despite its improper form. The Panel then went on to consider the issue of costs. The Law Society submitted that its costs in relation to the Applicant’s third application amounted to $26,414.50.
The decision by the Hearing Panel
[10] The Hearing Panel rejected the Applicant’s argument that it lacked jurisdiction to order costs. In its decision, the Hearing Panel stated:
A proceeding does not necessarily end with the filing of a notice of abandonment. There were two parties to this proceeding. While one party may abandon a proceeding, that does not by itself extinguish all rights of the other party. Overhanging all proceedings is the ever-present but sometimes forgotten or ignored or discounted spectre of costs.
[11] The Hearing Panel held that the Applicant’s interpretation of the Law Society Act, R.S.O. 1990, c. L.8 and its Rules of Practice and Procedure (the “Rules”) would lead to an absurd result if a person were be permitted to:
… apply for a license, put the Society and various witnesses to considerable expense and inconvenience, but then to file a notice of abandonment of the application, and then to reinstate the application even as soon as the next day, and to do that any number of times for any number of years, all without incurring the slightest cost consequences.
[12] The Hearing Panel ordered costs against the Applicant on the basis of his abuse of the Society’s Rules. However, it reduced the amount sought by the Law Society by about a third to $17,500.00 on account of the Applicant raising “a novel or somewhat novel point.”
The decision by the Appeal Panel
[13] The Applicant appealed the decision of the Hearing Panel to the Appeal Panel, and raised two grounds for his appeal:
(i) The Hearing Panel did not have jurisdiction to award costs because the Applicant ceased to be the “subject of proceedings” once he submitted a Notice of Abandonment thereby ending the proceeding; and
(ii) The Hearing Panel erred when it considered the Applicant’s previous licensing applications in assessing costs.
[14] The Appeal Panel upheld the Hearing’s Panel determination that it had jurisdiction to order costs. It held that once an Applicant commences a proceeding, he or she becomes “the subject of a proceeding”, and the Rules apply, including Rule 25 relating to costs. In addition, s. 49.28(1) of the Law Society Act gives the Hearing Panel the discretion to order costs of and incidental to a proceeding or a step in a proceeding before it. As a result, the Appeal Panel held that the Hearing Panel had broad authority to order costs incidental to a proceeding, even if the issue of costs was considered once the proceeding had otherwise concluded. Adopting the Applicant’s argument, it said, would lead to an absurd result where a hearing panel would never be in a position to assess costs after the conclusion of a proceeding because at that point the person would no longer be the “subject of a proceeding.” This would not be in keeping with plain reading of Rule 25 or s. 49.28 of the Law Society Act, and would permit parties to immunize themselves from adverse costs implications through abuse of the hearing panel’s processes.
[15] The Appeal Panel further held that the Hearing Panel did not improperly consider the Applicant’s previous proceedings in its determination of costs. The Hearing Panel properly limited itself to considering only those costs incurred in the third proceeding. It was appropriate to take into consideration the earlier conduct by the Applicant, which involved multiple abandonments and reinstatements of licensing applications, failing to comply with obligations and failing to attend various proceedings. This information provided the necessary context, especially since the costs were awarded on the basis of Rule 25.01(2)(b) of the Rules, which states that costs can be awarded “where the subject of the proceeding caused costs to be incurred without reasonable cause or to be wasted by undue delay, negligence or other default.”
[16] Finally, the Appeal Panel upheld the Hearing Panel’s decision to order costs against the Applicant in the amount of $17,500.00.
The Arguments on Judicial Review
[17] The Applicant raises the following issues:
(1) Did the Hearing Panel have jurisdiction to award costs against the Applicant?
(2) Could the Hearing Panel consider the Applicant’s previous applications in assessing costs?
(3) Was the Applicant denied procedural fairness?
(4) Were the costs disproportionate?
The Standard of Review
[18] The parties agree that the issue of the jurisdiction of the Hearing Panel to make a costs order against the Applicant is a question of law and should be reviewed on the standard of correctness. Costs awards should be set aside only if the adjudicator has made an error in principle or if the costs award is plainly wrong.
[19] When considering a procedural fairness argument, the Court does not engage in a standard of review analysis. Rather, it determines whether the requisite level of procedural fairness has been accorded, taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817. See also London (City of) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859 (C.A.) at para. 10.
Analysis
Did the Hearing Panel have Jurisdiction to Award Costs against the Applicant?
[20] The Applicant argues that anyone who submits a licencing application to the Law Society is entitled to abandon that application at any time with no possible cost consequences. He points to the fact that Rule 9.03(3), which permits an Applicant to abandon his or her licensing application process at any time, does not stipulate that there are any cost consequences for abandoning a licensing application prior to a good character hearing commencing. He says that the silence of Rule 9 on this point indicates a conscious choice not to allow cost awards to be made in these circumstances.
[21] I do not agree. The power to award costs in proceedings resides in Rule 25.01(2), together with s. 49.28 of the Law Society Act, which authorize the award of costs against the subject of a proceeding. A licencing proceeding is recognized as a proceeding in Rules 1.01 and 9.01 and elsewhere in the Rules. Having regard to the presence of Rule 25.01(2), there is no need to separately make reference to costs in individual Rules, such as Rule 9.03, and no inference can be drawn from the failure to do so. The abandonment of a licencing application does not deprive a licencing hearing of its status as a proceeding, even if the abandonment takes place before the panel convenes for the first time. To hold otherwise would lead to absurd results.
[22] As a result, I conclude that the Hearing Panel and the Appeal Panel did not err in law in assuming and affirming the jurisdiction to award costs against the Applicant.
Was the Hearing Panel Entitled to Consider the Applicant’s Previous Applications in Assessing Costs?
[23] It is important to note that the Hearing Panel did not award costs against the Applicant in relation to earlier proceedings. It simply considered the Applicant’s history in determining whether his conduct was abusive. The Hearing Panel made it clear that the order of costs was specifically limited to the third application only. The Panel recognized that the actual costs incurred by the Society since the Applicant first submitted his application in 2007 were significantly higher.
[24] The Hearing Panel’s consideration of the Applicant’s history in the manner that they it did was also authorized by s. 23(1) of Statutory Powers Procedure Act which permits a tribunal to take appropriate steps to prevent an abuse of its process. Looking at the context and the Applicant’s history allowed the Panel to reasonably find that the Applicant wasted the Law Society’s time without reasonable cause.
Was The Applicant Denied Procedural Fairness?
[25] The Applicant submits that once the Hearing Panel decided that it had jurisdiction to make a costs order, it had a responsibility, which it did not fulfill, to make reasonable accommodation for the Applicant to appear before it and make submissions on the quantum of costs and his ability to pay the potential costs award. The Applicant’s written submissions were limited to the issue of the Hearing Panel’s jurisdiction.
[26] This argument is also without merit. When the Applicant submitted his Notice of Abandonment, counsel for the Law Society notified him that the Society would be seeking costs. Later that same day, the Tribunal office sent an email to the parties confirming that the Respondent wished to make costs submissions. As a result, the Applicant was on notice that there was a risk of costs being awarded against him. Instead of making submissions on the quantum of the costs and his ability to pay, he chose to make written submissions only on the Hearing Panel’s lack of jurisdiction to award costs. He was not denied procedural fairness.
[27] For the same reason, we deny the Applicant’s application to adduce additional evidence. He seeks to place before us evidence about his ability to pay a costs award, and the reasons that he abandoned his application, to advance his procedural fairness argument. This is evidence that he could have, but chose not to place before the Hearing Panel. Further, he ought to have brought this application before the Appeal Panel, and not in this Court for the first time. In any event, this evidence cannot assist us in determining the procedural fairness issue. See, for example, Ontario Shores Centre for Mental Health v. Ontario Public Service Employees Union, 2011 ONSC 358 (Div. Ct.).
[28] The Applicant also argued that the Law Society was estopped from seeking costs because it had conceded after one of the Applicant’s previous abandonments that the Hearing Panel could not proceed with a good character hearing. This argument is entirely without merit.
Were the Appeal Panel’s Reasons Adequate?
[29] The Applicant complains that the Appeal Panel did not address six of the issues he raised, making the reasons inadequate and the decision unreasonable. Those issues are:
(i) admissible evidence not being adduced by the respondent pertaining to the Applicant’s previous licensing applications;
(ii) the respondent being estopped in pais and equitably estopped from seeking costs;
(iii) Rule 23 of the Rules of Civil Procedure comparison and distinction to Rule 9 of the Rules of Practice and Procedure;
(iv) the Applicant’s response to the provisions of the Statutory Powers Procedure Act not applying because of s. 2(h);
(v) the Respondent’s counsel’s previous submission that a Hearing Panel has no jurisdiction once a licensing application is abandoned; and
(vi) the application of relevant jurisprudence to the instant case, namely Persuad v. Society of Management Accountants of Ontario and Birnbaum v. The Institute of Chartered Accountants.
[30] In my view, the reasons are entirely adequate on their face. One of the six “unaddressed” issues, the failure of the Appeal Panel to consider all of the case law referred to by the Applicant, is not an issue at all. The remainder were effectively dealt with by the Appeal Panel and have already been dealt with in these reasons. However, even if the reasons do not seem wholly adequate to support the decision, this Court must first seek to supplement them before it seeks to subvert them. The notion of deference to administrative tribunal decision-making requires “a respectful attention to the reasons offered or which could be offered in support of a decision”: Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para. 12. Applying this approach, it is clear that the reasons are adequate and the decision is reasonable.
Was the Cost Award Proportionate?
[31] The Applicant argues that the Hearing Panel failed to consider proportionality and reasonableness in fixing the costs. However, he does not elaborate on what exactly the Hearing Panel should have considered and what the costs should have been.
[32] Having regard to the fact that the costs award was appropriately confined to the third proceeding, and that the Hearing Panel reduced the Law Society’s actual costs by one third on account of the novelty of the points raised by the Applicant, I see no merit to this argument.
Disposition
[33] For these reasons, the application is dismissed.
COSTS
[34] I have endorsed the Applicant’s Application Record as follows: “This Application is dismissed for reasons delivered orally in court today. Costs to LSUC fixed in the amount of $5,000.00 all inclusive.
___________________________ DAMBROT J.
I Agree ___________________________
BALTMAN J.
I Agree ___________________________
THORBURN J.
Date of Reasons for Judgment: October 17, 2016
Date of Release: October 28, 2016
CITATION: Riddell v. The Law Society of Upper Canada, 2016 ONSC 6631
DIVISIONAL COURT FILE NO.: 453/14 DATE: 20161017
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, BALTMAN and THORBURN JJ.
BETWEEN:
MATTHEW RIDDELL
Applicant
– and –
THE LAW SOCIETY OF UPPER CANADA
Respondent
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: October 17, 2016
Date of Release: October 28, 2016