CITATION: Kopyto v. The Law Society of Upper Canada, 2016 ONSC 7545
DIVISIONAL COURT FILE NO.: 122/16 DATE: 20161202
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
NORDHEIMER, C. HORKINS and EMERY JJ.
BETWEEN:
HERSCH HARRY KOPYTO
Applicant
– and –
THE LAW SOCIETY OF UPPER CANADA
Respondent
Harry Kopyto, acting in person
Susan Heakes and Anne-Katherine Dionne, for the Respondent
Lisa Mallia, for Law Society Tribunal
HEARD at Toronto: December 2, 2016
NORDHEIMER J. (orally)
[1] Mr. Kopyto seeks judicial review of a decision of a five-person panel of the Law Society Tribunal Appeal Division that dismissed his appeal of a decision of a three-person panel of the Law Society Tribunal Hearing Division that denied his application to be licenced as a paralegal, principally on the basis that he was ungovernable.
[2] Two issues are raised on this application. One is that the Appeal Panel erred in failing to find that the Chair of the Hearing Panel ought to have recused herself. The other is that the structure by which membership on an appeal panel is determined compromises the independence of the Appeal Panel.
[3] There is disagreement among the parties as to the appropriate standard of review. In my view, it is the standard of reasonableness: Groia v. The Law Society of Upper Canada (2016), 2016 ONCA 471, 131 O.R. (3d) 1 (C.A.). However, the selection of the standard of review does not alter the result in this case.
[4] This saga began in June 2009. It eventually reached the Hearing Panel in October 2011. After 39 days of the hearing, the applicant brought a motion that the Chair of the Hearing Panel recuse herself. This motion was based on the fact that the law firm, of which the Chair was a member, was acting for a client that had a dispute with Mr. G. who, the applicant only then advised, had become a client of his, and was also now going to be a good character witness for him at the hearing. Upon being advised of these matters, the Chair of the Panel immediately disassociated herself from any contact with Mr. G.’s matter, transferred the matter to another lawyer in the firm, and created a “firewall” within her firm to ensure the separation of her from that matter.
[5] The Hearing Panel heard but dismissed the applicant’s motion asking that the Chair of the Panel recuse herself.
[6] Ultimately, after something in the order of 60 days of hearing, the Hearing Panel concluded that the applicant’s request to be licenced as a paralegal should be denied on the basis that the applicant was not of good character, because he was ungovernable.
[7] The applicant appealed the decision of the Hearing Panel. On the appeal, the applicant essentially raised the same two issues that he repeats on this application.
[8] The Appeal Panel rejected the applicant’s submission that the Chair of the Hearing Panel ought to have recused herself. Contrary to the applicant’s submission, the Appeal Panel did apply the correct test for an appearance of bias, that is, what a reasonable outside observer would conclude. The Appeal Panel said, at para. 53:
In the context of a hearing of nearly 50 days' duration, Ms. Blight's extremely limited involvement with G, and the nature of his proposed evidence, there was simply no reasonable apprehension of bias. A reasonably informed person would not form the view that Ms. Blight's brief representation of the respondent to G's human rights application would impair her ability to fairly adjudicate the appellant's licensing proceeding.[^1]
[9] That was a reasonable decision for the Appeal Panel to reach. It falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law. There is no basis for this court to interfere with it.
[10] In terms of the independence of the Appeal Panel, I agree that this issue is determined by the decision in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781 where McLachlin, C.J.C. said, at para. 24:
While tribunals may sometimes attract Charter requirements of independence, as a general rule they do not. Thus, the degree of independence required of a particular tribunal is a matter of discerning the intention of Parliament or the legislature and, absent constitutional constraints, this choice must be respected.
[11] The Legislature has directed the manner in which the Appeal Panel members will be selected through the Law Society Act, R.S.O. 1990, c. L.8, that is, they are selected by the Tribunal Chair. The Law Society Act also provides for the appointment of the Tribunal Chair. The independence of the Tribunal Chair with respect to adjudicative matters is expressly protected through the agreement by which he is appointed. There is simply no basis to credibly suggest that the appointment of the Chair of the Tribunal, or his selection of members of an appeal panel, do not enjoy the requisite degree of independence in accordance with the principles of natural justice.
[12] The application for judicial review is dismissed.
COSTS
[13] I have endorsed the Application Records as follows: “This Application is dismissed for oral reasons given today. The applicant shall pay to the Law Society costs fixed at $5,000.00 all inclusive. The Tribunal does not seek costs.”
___________________________ NORDHEIMER J.
I agree
C. HORKINS J.
I agree
EMERY J.
Date of Reasons for Judgment: December 2, 2016
Date of Release: December 16, 2016
CITATION: Kopyto v. The Law Society of Upper Canada, 2016 ONSC 7545
DIVISIONAL COURT FILE NO.: 122/16 DATE: 20161202
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
NORDHEIMER, C. HORKINS and EMERY JJ.
BETWEEN:
HERSCH HARRY KOPYTO
Applicant
– and –
THE LAW SOCIETY OF UPPER CANADA
Respondent
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: December 2, 2016
Date of Release: December 16, 2016
[^1]: Kopyto v. Law Society of Upper Canada, [2016] L.S.D.D. No. 15