Peters v. The Law Society of Upper Canada
CITATION: Peters v. The Law Society of Upper Canada, 2017 ONSC 7142
DIVISIONAL COURT FILE NO.: 161/17
DATE: 2017/11/28
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, SACHS and LeMAY JJ.
BETWEEN:
ELSIE EUGINA PETERS
Applicant
– and –
THE LAW SOCIETY OF UPPER CANADA
Respondent
Elsie Eugina Peters, acting in person
Susan Heakes, for the Respondent
HEARD at Toronto: November 28, 2017
SACHS J. (Orally)
[1] Ms. Peters sought to judicially review a decision of the Law Society Appeal Division (the “Appeal Panel”) dated August 10, 2016 that dismissed her appeal of a decision of the Law Society Hearing Division (the “Hearing Panel”) dated August 28, 2014. With the Law Society’s consent, this matter was dealt with as an appeal.
[2] After a 17 day hearing, followed by written closing submissions, the Hearing Panel found that Ms. Peters had committed professional misconduct in relation to nine family law files and one criminal matter. As put by the Hearing Panel in its decision as para. 174:
Since August 27, 2007, a little over one year after her call to the bar, the Lawyer has engaged in a very serious pattern of misconduct involving: the failure to attend court dates or arrange for an agent, thereby failing to treat the Court with candour, courtesy or respect; failure to respond to opposing counsel; failure to serve clients; and failure to respond to Court orders for costs, in addition to practicing while administratively suspended. This pattern has continued up to March 2011, when the Lawyer was suspended and came to the Law Society’s attention through the complaints of other lawyers, clients, agencies and the judiciary, who were dealing with the Lawyer.
[3] In a subsequent decision dated April 21, 2015, the Hearing Panel ordered that Ms. Peters be suspended for a period of three months, commencing immediately. Given the fact that Ms. Peters was the subject of an interim suspension, this brought the total period of suspension to over four years. The Hearing Panel also imposed a number of practice restrictions on Ms. Peters, including that she only practice law as an employee, not as a sole practitioner or as a partner.
[4] Ms. Peters appealed the Hearing Panel’s decision to the Appeal Panel on two grounds:
(a) The Hearing Panel erred in dismissing her motion for disclosure of two of the Society’s investigation files. These files concerned complaints in relation to two of the matters that were the subject of the proceedings against Ms. Peters – the R matter and the C matter.
(b) The Hearing Panel ignored evidence and failed to properly assess the evidence that she led in relation to both the R and the C matters.
[5] As already indicated, the Appeal Panel dismissed Ms. Peters’ appeal concluding that the Hearing Panel’s findings in relation to the R and C matters were reasonable and that the Hearing Panel exercised its discretion in a reasonable manner in dismissing Ms. Peters’ motion for disclosure.
[6] Before us, Ms. Peters argues that the Appeal Panel erred in its treatment of both aspects of her appeal. In addition, she submits that the delay in the proceedings violated her rights under the Charter and caused her severe prejudice and that the penalty she received was unreasonable.
[7] The standard of review that applies to the Appeal Panel’s findings on the two issues it dealt with it is reasonableness (Igbinosun v. Law Society of Upper Canada (2008), 2008 36158 (ON SCDC), 239 O.A.C. 178, 83 Admin L.R. (4th) 106 (Div. Ct.) at para. 9, aff’d 2009 ONCA 484, 96 O.R. (3d) 138).
[8] In our view, the Appeal Panel reasonably concluded that the Hearing Panel’s decision to dismiss Ms. Peters’ disclosure motion was reasonable. The disclosure motion related to two complaints that the Law Society had received against Ms. Peters’ opposing counsel in the R matter and against a paralegal who was retained by Ms. Peters’ client in the C matter. As the Appeal Panel found, the Hearing Panel applied the correct legal principles to the motion before it and decided that the material requested had no potential relevance to the issues it was confronted with. Given that the conduct at issue in the R matter concerned Ms. Peters’ failure to attend court on three occasions and her failure to pay a costs order, it was reasonable for the Hearing Panel to conclude that a complaint against the opposing lawyer in the same proceeding had no relevance. It was Ms. Peters’ conduct that was at issue, not the opposing lawyer’s. In the C matter, the complaint was against a paralegal that Ms. Peters’ client had retained before she retained Ms. Peters. Again, it was not unreasonable to find that this complaint had no relevance to the allegations against Ms. Peters, which concerned her conduct, not that of the paralegal.
[9] We also find that the Appeal Panel reasonably concluded that the appeal against the Hearing Panel’s factual findings in the R and C matters should be dismissed. As the Appeal Panel noted, the factual findings of the Hearing Panel were entitled to considerable deference. In this case, while the decision of the Hearing Panel did not refer to every aspect of the evidence that Ms. Peters called, it is clear that it did not ignore this evidence; it heard it and either rejected it or found that it did not impact on the issues that it had to decide. Given the record before it, there is no basis for saying that their conclusions in this regard were unreasonable.
[10] With respect to the issue of delay, while this issue was dealt with in Ms. Peters’ factum before the Appeal Panel, her counsel agreed to abandon the issue, except as related to costs at an Appeal Management Conference. Thus, it was not argued at the appeal or before the Hearing Panel.
[11] As the Divisional Court noted in Byrnes v. Law Society of Upper Canada, 2015 ONSC 2939 at para. 34: “Courts are typically reluctant to allow a party to raise new issues on appeal for a number of reasons.” However, they may do so if three conditions are met. One of those conditions is that there must be a sufficient evidentiary record to resolve the issue (see para. 35 of Byrne). In this case, because the issue was not raised before the previous panels, there is no record that satisfactorily explores the reasons for the delay and the severity of any prejudice that may have been experienced by Ms. Peters as a result of that delay. Thus, we decline to allow Ms. Peters to raise this issue at this time.
[12] With respect to penalty, while this issue was not raised before the Appeal Panel, we are prepared to consider it. The penalty decisions of administrative tribunals are entitled to considerable deference. In this case, the Society’s position before the Hearing Panel was that Ms. Peters’ licence should be revoked. The Hearing Panel chose to give her a second chance. In doing so, they considered the time that she had already been suspended and devised a plan for Ms. Peters to re-enter practice that would fulfill its primary mandate, protecting the public. In our view, its decision was reaonsable.
[13] For these reasons, Ms. Peters’ appeal is dismissed.
KITELEY J.
[14] I have endorsed the Applicant Application Record Volume 1 as follows: “This Appeal is dismissed for oral reasons given. The appellant shall pay the Law Society costs of the appeal in the amount of $5,000.”
SACHS J.
I agree
KITELEY J.
I agree
LeMAY J.
Date of Reasons for Judgment: November 28, 2017
Date of Release: November 30, 2017
CITATION: Peters v. The Law Society of Upper Canada, 2017 ONSC 7142
DIVISIONAL COURT FILE NO.: 161/17
DATE: 2017/11/28
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, SACHS and LeMAY JJ.
BETWEEN:
ELSIE EUGINA PETERS
Applicant
– and –
THE LAW SOCIETY OF UPPER CANADA
Respondent
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: November 28, 2017
Date of Release: November 30, 2017