Court File and Parties
CITATION: Foster v. The Law Society Tribunal, 2017 ONSC 3430
DIVISIONAL COURT FILE NO.: 399/15 DATE: 20170601
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
TRACEY MARIE FOSTER Applicant
– and –
THE LAW SOCIETY TRIBUNAL, THE LAW SOCIETY OF UPPER CANADA, DR. TREENA WILKIE, DR. CAROLYN ABRAMOWITZ, WILLIAM BLAIR Respondents
Tracey Marie Foster, acting in person for the Applicant Lisa Mallia, for the Respondent, The Law Society Tribunal Jan Parnega-Welch, for the Respondent, The Law Society of Upper Canada
HEARD at Toronto: June 1, 2017
Oral Reasons for Judgment
SWINTON J. (Orally)
[1] The applicant seeks an order to stay the hearing of conduct and reinstatement proceedings by the Hearing Division of the Law Society Tribunal scheduled to commence in September, 2017. In her application for judicial review, she seeks to overturn interlocutory rulings made November 3, 2014 and June 18, 2015 regarding disclosure, the openness of the hearing, joinder, and the quashing of summonses to witnesses.
[2] The test for grant of a stay is set out in R.J.R.-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311 at para. 43.
Serious Question to be Tried
[3] The Law Society Tribunal makes no submissions on this aspect of the test, given that it raises the merits.
[4] The “serious question to be tried” factor is a low threshold. Nevertheless, the rulings that the applicant seeks to challenge are interim rulings, as set out above. Some of the issues she raised today in oral argument, such as Charter arguments, have yet to be determined by the Tribunal. Courts are reluctant to intervene in ongoing administrative tribunal proceedings because of concerns respecting fragmentation, delay, and respect for the administrative process, absent exceptional circumstances. Even a jurisdictional issue raised by an applicant is not per se an exceptional circumstance (Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541 at para. 61).
[5] Courts are particularly reluctant to intervene if the applicant has an adequate alternative remedy, as there is here in the appeal structure under The Law Society Act, which gives a right to appeal a final decision of the Hearing Division to the Appeal Division and a further right of appeal from a final decision of the Appeal Division to the Divisional Court.
Irreparable Harm
[6] I am not satisfied that the applicant will suffer irreparable harm if the stay is not granted pending the hearing of the application. With respect to her privacy concerns, the Tribunal has put in place safeguards to protect sensitive personal information. It has yet to rule on her Charter claims.
[7] If the applicant is correct with respect to her arguments on disclosure and the treatment of the reinstatement application and the treatment of earlier court findings, she has a right to appeal the final decision of the Hearing Division to the Appeal Division.
Balance of convenience
[8] The balance of convenience weighs against granting a stay. There is an important public interest in allowing administrative proceedings to run their course. As the Court of Appeal stated in Sazant v. College of Physicians and Surgeons of Ontario (quoted in Law Society of Upper Canada and Issac, 2014 ONLSTA 31 at para. 48):
Under this part of the test [the balance of convenience], the court will weigh the interests of [the appellant] against those of the public. The public interest goes beyond that of public safety and also includes public confidence in the administration of justice, and in cases such as this, confidence in the disciplinary process of the College.
[9] I agree with Low J. when she stated in Marler v. Law Society of Upper Canada, 2009 6626 (Div. Ct.) at para. 11:
Third, the applicant has not shown that the balance of convenience favours a stay. While a stay pending the outcome of the judicial review will result in economy in the event that Mr. Marler’s judicial review application is successful, there is a legitimate countervailing argument that the Law Society has an obligation to carry out with diligence its mandate to protect the public interest under the statute by disciplining members whose conduct requires disciplinary attention.
[10] Moreover, as I have already stated, courts do not intervene on judicial review where there are adequate alternative remedies, as there are in the internal appeal structure, absent exceptional circumstances, which have not been shown here.
[11] As well, this application is premature, with many issues still to be determined by the Tribunal.
[12] Finally, I am also concerned about the delay in seeking this stay. The decisions under review are from November 2014 and June 2015. Judicial review is meant to be an expeditious remedy. Had the applicant moved in a more timely way, she could have had this motion - and the application for judicial review - determined already.
[13] In the circumstances, having considered the factors in RJR-MacDonald, I find that the applicant has not met the test for a stay.
[14] I have endorsed the Motion Record as follows: “Motion seeking a stay of the Tribunal proceedings is refused. The balance of the relief sought (sealing order, in camera hearing, publication ban) is adjourned to a date to be fixed by the Registrar. The Law Society advises that it will be bringing a motion to quash. Ideally, the two motions should be heard together. The judge hearing Ms. Foster’s motion should be provided with the sealed envelope filed with the Application Record.
The Tribunal does not seek costs. Costs to the Law Society for the appearance today fixed at $500.00.”
___________________________ SWINTON J.
Date of Reasons for Judgment: June 1, 2017
Date of Release: June 2, 2017
CITATION: Foster v. The Law Society Tribunal, 2017 ONSC 3430
DIVISIONAL COURT FILE NO.: 399/15 DATE: 20170601
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
TRACEY MARIE FOSTER Applicant
– and –
THE LAW SOCIETY TRIBUNAL, THE LAW SOCIETY OF UPPER CANADA, DR. TREENA WILKIE, DR. CAROLYN ABRAMOWITZ, WILLIAM BLAIR Respondents
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: June 1, 2017
Date of Release: June 2, 2017