DIVISIONAL COURT FILE NO.: 640/15
DATE: 2016012
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: ALI AMIRI, Appellant
AND:
THE LAW SOCIETY OF UPPER CANADA, Respondent
BEFORE: J. Wilson J.
COUNSEL: Ali Amiri, Self-represented
Leslie Maunder, for the Respondent
HEARD at Toronto: January 5, 2016
ENDORSEMENT
[1] The Appellant, Ali Amiri (Amiri), is a paralegal who is subject to licencing by the Law Society of Upper Canada. He has been charged with exceeding his authority as a paralegal by representing clients on super summary offences contrary to section 802.1 of the Criminal Code, R.S.C. 1985, c. C-46.
[2] He seeks an extension of time to appeal from the interlocutory order for costs granted by Linda Rotstein on March 25, 2013 in the amount of $14,462.50 (the Interlocutory Costs Order).
[3] He also seeks an extension of time to appeal from the final order of the Law Society rendered by the panel chair, Mark Sandler, on January 7, 2015 (the Appeal Panel Decision).
Test for the Extension of Time
[4] The decision Rizzi v. Mavros (2007), 2007 ONCA 350, 85 O.R. (3d) 401 (C.A.) confirms the five factors relevant on motions to extend time limits for appeals including:
(1) whether the appellant formed an intention to appeal within the relevant period;
(2) length of, and explanation for, delay;
(3) any prejudice to respondent;
(4) merits of the appeal; and
(5) whether the “justice of the case” requires it.
The Interlocutory Costs Order
[5] I will first consider the request for the extension of time to appeal the Interlocutory Costs Order.
[6] The Appellant was ordered on May 18, 2012, in an interlocutory order pending the hearing, to refrain from acting on super summary offences. He appealed that order to an appeal panel of the Law Society. The Interlocutory Appeal Panel dismissed the appeal and ordered the Appellant to pay costs in the Interlocutory Costs Order. The suspension order is now moot as the interlocutory suspension terminated once the Hearing Panel of the Law Society rendered its decision on February 13, 2014.
[7] There is no jurisdiction for this court to hear an appeal from an interlocutory award of costs made in the context of an interlocutory suspension of the Appellant’s status as a paralegal. The jurisdiction to appeal to the Divisional Court is limited by section 49.38 of the Law Society Act, R.S.O. 1990, c. L.8 to a final order or decision from the Appeal Panel of the Law Society regarding a conduct application, capacity application or a refusal to restore a license in abeyance.
[8] There is no merit to the request to extend the time for leave to appeal the Interlocutory Costs Order as this court is without jurisdiction to hear the requested appeal.
The Appeal Panel Decision
[9] The Application proceeded to a disciplinary hearing before a Hearing Panel of the Law Society after the interlocutory suspension and cost order was made.
[10] The Hearing Panel determined on February 13, 2014 that the Appellant had contravened section 33 of the Law Society Act by engaging in professional misconduct in accordance with the facts in the Notice of Application (the Hearing Panel Decision).
[11] The Appellant successfully appealed the Hearing Panel Decision.
[12] The Appeal Panel Decision set aside the Hearing Panel Decision, and concluded that the Hearing Panel had improperly refused the Appellant’s request for an adjournment.
[13] The findings of professional misconduct against the Appellant are therefore set aside, subject to the right of the Law Society to commence a new proceeding.
[14] The Law Society is taking steps to arrange for a new hearing.
[15] The Appellant now seeks to appeal from the Appeal Panel Decision alleging that the panel improperly dismissed his request to quash one of the particulars in the Law Society’s Application.
[16] This particular is at the heart of the allegations of professional misconduct that the Appellant practiced beyond the scope of his license contrary to the Law Society rules and section 802.1 of the Criminal Code.
[17] The Appeal Panel Decision declined the Appellant’s request to determine the merits of this particular, for reasons given, and instead referred all matters back to a new disciplinary panel of the Law Society for a hearing.
Judicial Review of the Appeal Panel Decision
[18] The Appellant had requested a stay of proceedings before the Appeal Panel due to delay, prejudice and the Appellant’s argument that section 802.1 of the Criminal Code infringed the Canadian Charter of Rights and Freedoms.
[19] The Appeal Panel Decision denied the request for a stay.
[20] A panel of the Divisional Court dismissed the application for judicial review on August 21, 2015, and concluded that the reasons of the Appeal Panel were adequate, and the question of the stay should appropriately be addressed by the disciplinary panel hearing the matter with the benefit of a full evidentiary record.
[21] A request for an extension of time to appeal the Divisional Court decision was denied by Epstein, J.A. on October 26, 2015. The Appellant has appealed the decision denying the extension of time to appeal, and the matter is scheduled to be heard before a full panel of the Court of Appeal.
[22] Epstein, J. A. denied the request for an extension of time considering the question of the merits of the appeal and the justice of the case.
[23] Her Honour concluded, in paras 10 to 12, of her endorsement:
[10] First, while the case is clearly of considerable importance to the applicant, the proposed appeal raises no issue of legal significance. It is a straightforward application of settled law regarding the granting of a request for a stay. Decisions in such situations are highly discretionary and are afforded considerable deference.
[11] Second, the reasons of the appeal panel, considered in the light of the record, are sufficient in the sense that they enable appellate review.
[12] Finally, the justice of the case does not require another consideration of the applicant’s request for a stay. The applicant has been granted a new hearing. This is where the issues he has advanced in this application ought to be raised.
Conclusions on the Request to Extend Time from the Appeal Panel Decision
[24] I echo the conclusions of Epstein, J.A. above, and decline to extend the time to appeal from the Appeal Panel Decision based upon my determination of the merits of the case and the interests of justice.
[25] The Appellant suggested in argument that he never infringed the limits of his jurisdiction, as he simply sought permission to act for clients in super summary conviction appeals without actually doing work on their behalf. The Law Society disputes this allegation, and this is a factual matter that appropriately should be heard before a new Hearing Panel.
[26] The Appellant argues that the Appeal Panel should have heard and determined the argument declaring section 802.1 of the Criminal Code unconstitutional, and granted a stay.
[27] He also argues before me, that if the Law Society cannot make constitutional determinations, then this matter should proceed to an appeal before the Divisional Court, which has jurisdiction to hear the constitutional challenge. It appears that the Appellant is misinformed about the process and procedure required to make a constitutional challenge.
[28] I decline to order the extension of time to appeal from the Appeal Panel Decision.
[29] I conclude that there is no merit to the proposed appeal. Further, I conclude that the interests of justice dictate that the Appellant be entitled to raise all factual and legal issues in a new hearing before a new discipline hearing panel. The interests of justice would not be served in allowing fragmented arguments to proceed without a full evidentiary record.
[30] Each party sought costs in the amount of $500.00 if successful. As I have denied the motion to extend time for the appeal, the Appellant shall pay costs to the Law Society fixed in the amount of $500.00 inclusive of HST and disbursements.
J. Wilson J.
Date: January 12, 2016