The Law Society of Upper Canada v. Cengarle, 2018 ONSC 1033
CITATION: The Law Society of Upper Canada v. Cengarle 2018 ONSC 1033
DIVISIONAL COURT FILE NO.: 429/17
DATE: 2018 02 12
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Lederer, Matheson and Bale JJ.
BETWEEN:
THE LAW SOCIETY OF UPPER CANADA
Applicant
– and –
LICIO EDWARD CENGARLE and THE LAW SOCIETY TRIBUNAL HEARING DIVISION
Respondents
Andrew Faith and Jeffrey Haylock, for the Applicant
Matthew Wilton for the Respondent, Licio Edward Cengarle
Owen Rees for the Respondent, The Law Society Tribunal Hearing Division
HEARD at Toronto: February 12, 2018
ORAL REASONS FOR JUDGMENT
Lederer J. (Orally)
[1] The Applicant, the Law Society of Upper Canada (since re-named the Law Society of Ontario) is responsible for supervising and where necessary, disciplining lawyers and paralegals, licenced to practice in Ontario. The Law Society Act sets in place the administrative scheme governing the disciplining of lawyers. It provides for a Law Society Tribunal with two divisions: the Law Society Hearing Division and the Law Society Appeal Division. In turn, Convocation, (meetings of benchers which transact the business of the Society) is permitted to make rules of practice and procedure applicable to the proceeding of both divisions.
[2] In this case the Hearing Division, with the requisite authorization of the Proceeding Authorization Committee having been obtained, proceeded to consider whether the personal respondent, a member of the Society, had engaged in professional misconduct or conduct unbecoming a licensee. As a result of its investigation, the applicant, the Law Society, determined to seek an interlocutory suspension of the licence of the personal respondent. He sought disclosure of all the material obtained by the Law Society that was potentially relevant to the motion for an interlocutory suspension. For its part, the Law Society proposed that the appropriate disclosure was of the material that it proposed to rely on and anything that might be exculpatory.
[3] The hearing of the interlocutory suspension was adjourned pending determination of this preliminary issue. Ultimately, some months later, the motion which was originally to have been heard on December 22,2016 was adjourned. This motion for disclosure was heard on March 10, 2017 and the decision released on June 26, 2017. It ordered disclosure as requested by the personal respondent. Rather than wait for an appeal, the Law Society made the disclosure as ordered.
[4] The hearing of the motion proceeded and an order made imposing the interlocutory suspension. Thus, the matter has been dealt with and a ruling made. Nonetheless, the parties see in this a test case, a matter of continuing importance which the court should deal with. The Law Society and the personal respondent argue that the court should consider the question of disclosure in order that the matter be determined for future circumstances that will, they submit, undoubtedly arise. The Tribunal submits that the issue is moot and the court should not exercise its discretion to hear a judicial review.
[5] After carefully considering the submissions of counsel, we are not prepared to hear this matter. It may, or may not be, that the issue of appropriate disclosure will arise again.
[6] Convocation has promulgated rules for both the Hearing Division and the Appeal Division. The rules for the latter include:
2.1 (1) Subject to this rule, there is no appeal from an interlocutory order of the Hearing Division.
(2) A party to a motion for an interlocutory order of the Hearing Division suspending a licensee’s licence or restricting the manner in which a licensee may practice law or provide legal services may appeal the Hearing Division’s disposition of the motion to the Appeal Division.
[7] It follows that there could be no appeal of the disclosure order that was made. Rather, the process required that the matter proceed, as it did, to a full hearing of the motion for an interlocutory suspension. Any disposition of such a proceeding is subject to an appeal “on any grounds”. To proceed as the Law Society has, denies the court the assistance of the Appeal Division in dealing with these issues. It is commonly understood that judicial review should only be permitted after all other avenues have been exhausted. That is not the case here (see Foster v. The Law Society Tribunal, 2017 ONSC 3430, at para. 5).
[8] We make this determination cognizant of the Law Society’s expressed concern for delay and the assistance that would be provided by a precedent. In the end, each case is different and dependent on its own facts. There is no certainty that any decision made here would be one of wide application. Moreover, the Law Society Tribunal, in both its manifestations, is an expert Tribunal. The experience and guidance of the Tribunal should be fully before the court on this, if not any, application for judicial review.
[9] Interlocutory suspensions have been proceeding for years without this issue standing in the way. This is the first decision of the Law Society Tribunal dealing with this question.
[10] The proposition on which this request relies, is that the decision of the Hearing Tribunal is immutable, of general application and will be binding. The situation is more uncertain than that.
[11] The reliance on a four week time frame as one within which a motion for an interlocutory suspension should be held is not a rule forthcoming from Convocation but only an observation made in the context of this case. Another Hearing Tribunal on another day could see this differently. Similarly, the foregone conclusion on which the Society relies, that in the absence of proceeding to an interlocutory suspension within four weeks, there would necessarily be an attempt to secure an interim interlocutory suspension is not necessarily correct. It fails to recognize the other options available as in this case, a supervision order. In our view, the issue has not matured.
[12] The Tribunal should be allowed some time for its jurisprudence to evolve. We have considered the factors in Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342 and refuse to exercise our discretion to hear this matter. There are no special circumstances to justify the resort to the courts on this issue at this time.
[13] We appreciate the fact that counsel for the member was present and ready to contribute to the deliberations of the Court. We appreciate that his client took an interest in this matter by seeing it through to the end but, as we see it, this is not a matter of personal interest, so much as it is a duty to the profession. In the end, the issue was moot.
[14] I have endorsed the record as follows: “For oral reasons read today, the request for judicial review is dismissed. No costs.”
___________________________ LEDERER J.
I agree
MATHESON J.
I agree
BALE J.
Date of Reasons for Judgment: February 12, 2018
Date of Release: March 20, 2018
CITATION: The Law Society of Upper Canada v. Cengarle, 2018 ONSC 1033
DIVISIONAL COURT FILE NO.: 17/429 DATE: 2018 02 12
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lederer, Matheson and Bale JJ.
BETWEEN:
THE LAW SOCIETY OF UPPER CANADA
Applicant
– and –
LICIO EDWARD CENGARLE and THE LAW SOCIETY TRIBUNAL HEARING DIVISION
Respondents
ORAL REASONS FOR JUDGMENT
Lederer J.
Date of Reasons for Judgment: February 12, 2018
Date of Release: March 20, 2018