DIVISIONAL COURT FILE NO.: 164/17
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, PATTILLO AND CAVANAGH JJ.
BETWEEN:
THE LAW SOCIETY OF UPPER CANADA
Respondent/
(Respondent Party on Motion)
– and –
CHRISTIAN RONALD PIERSANTI
Appellant
(Moving Party on Motion)
Ian Godfrey, for the Respondent
V. Ross Morrison and R. Samantha Chapman, for the Appellant
Heard at Toronto: November 2, 2017
l. a. pattillo j.
Introduction
1This is a motion by the Appellant, Christian Piersanti (the “Moving Party”), for an order pursuant to s. 21(5) of the Courts of Justice Act, setting aside or varying the order of the Honorable Madam Justice Swinton (the “Motion Judge”) dated May 30, 2017 (the “Order”) which quashed the Moving Party’s appeal to the Divisional Court from the order of the Appeal Division of The Law Society of Upper Canada (the “Law Society”) dated March 17, 2017.
2For the reasons that follow, I dismiss the motion.
Background
3The Law Society alleges that the Moving Party committed professional misconduct contrary to rules 6.01 and/or 6.04 of the Rules of Professional Conduct and has commenced a conduct proceeding against him. The Law Society’s allegations against the Moving Party arose as a result of findings of fact made against him by the trial judge in Alfano (Trustee of) v. Piersanti et al., 2010 ONSC 4853, [2010] O.J. No. 3787 (S.C.J.).
4On August 5, 2016, the Hearing Division Tribunal dealing with the Moving Party’s conduct proceeding (the “Tribunal”) ordered that certain findings of fact by the trial judge in Alfano are admissible as proof of those facts in the conduct proceeding. The Tribunal further ordered that the Moving Party was precluded from relitigating the findings of fact in the conduct proceeding.
5The Moving Party appealed the Tribunal’s order to the Appeal Division. The Law Society then brought a motion to quash the appeal on the ground that it was premature and the Appeal Division did not have jurisdiction to hear it. On March 17, 2017, the Appeal Division quashed the Moving Party’s appeal, holding that it lacked jurisdiction because the Tribunal’s order was not final.
6The Moving Party then appealed the Appeal Division’s order to this Court pursuant to s. 49.38 of the Law Society Act, R.S.O. 1990, c. L.8 (the “Act”). In turn, the Law Society brought a motion to quash the appeal.
7In granting the Law Society’s motion, the Motion Judge held that the Divisional Court had no jurisdiction to hear the appeal because the Appeal Division’s order was not a final determination of the allegations of misconduct or penalty. In reaching that decision, the Motion Judge followed a number of Divisional Court cases which held that an order of the Appeal Division quashing the appeal from the order of the Hearing Division was not determinative of the conduct proceeding and could not be characterized as final. See: Coady v. Law Society of Upper Canada, 2009 60781 at para. 9; Opara v. Law Society of Upper Canada, 2015 ONSC 3348 at para. 16; Law Society of Upper Canada v. Kivisto, 2016 ONSC 1400 at paras. 23-24; and Law Society of Upper Canada v. Robson, 2014 ONSC 7254 at para. 5.
8Before us, the Moving Party submits that the Motion Judge erred in law in holding that an appeal to the Divisional Court lies only from a final disposition of the entire disciplinary proceeding.
Standard of Review
9On a motion to set aside or vary a motion judge’s order under s. 21(5) of the Courts of Justice Act, the panel should only intervene if there has been an error of law or a palpable and overriding error of fact by the motion judge: Assn. of Justices of the Peace of Ontario v. Ontario, 2016 ONSC 600, 134 O.R. (3d) 584 (Div. Ct.) at para. 77.
Analysis
10The right of appeal to this court from an order of the Law Society’s Appeal Division is set out in s. 49.38 of the Act which provides:
49.38 A party to a proceeding before the Appeal Division may appeal to the Divisional Court from a final decision or order of the Appeal Division if,
a) the Appeal Division’s final decision or order was made on an appeal from a decision or order of the Hearing Division under subsection 31 (3); or
b) the proceeding was commenced under section 34 or 38.
11As was stated by this court in Coady v. The Law Society of Upper Canada, 2009 60781 (Div. Ct.) at para. 9:
An appeal right is a statutory right. In this case, the determination of the jurisdiction of this Court turns on the language of s. 49.38 of the Law Society Act. That section provides a right of appeal only from the final disposition of the disciplinary proceeding. Manifestly, the decision of the Appeal Panel under review was not a final decision.
12In Law Society of Upper Canada v. Kivisto, 2016 ONSC 1400 (Div. Ct.), after reviewing the purpose of the Act as found from its provisions, I stated at para. 23:
- When the word “final” in both s. 49.32 and 49.38 of the Act is considered in the context of the Act as a whole and having regard to the purpose and objects of the Act, in my view, it means when there is a determination of professional misconduct or conduct unbecoming in a conduct application.
13In the Moving Party’s conduct proceeding before the Tribunal, the issue for determination is whether he is guilty of professional misconduct or conduct unbecoming. That issue has yet to be decided. The Order in issue quashed the Moving Party’s appeal from the Appeal Division’s order. The Appeal Division’s order was not determinative of the issue between the parties because there was no finding of professional misconduct or conduct unbecoming. As a result, the Appeal Division’s order was not final and no appeal lies to this court pursuant to s. 49.38 of the Act.
14In support of his submission that the Appeal Division’s order is final, the Moving Party relies on the line of cases beginning with Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675 (C.A.), and continuing in Ball v. Donais (1993), 1993 8613 (ON CA), 13 O.R. (3d) 322 (C.A.); Stoiantsis v. Spirou, 2008 ONCA 553(C.A.); Manos Foods International Inc. v. Coca Cola Limited et al., [1999] 3022 (C.A.); and Skunk v. Ketash, 2016 ONCA 841 (C.A.). Those cases considered the distinction between final and interlocutory orders in the context of determining statutory rights of appeal in civil (non-administrative) cases and are authority for the principle that where the order under appeal does not finally dispose of the rights of the parties to the litigation but does deprive the party of a substantive right which could be determinative of the entire action, the order is final.
15In my view, the Ball v. Donais line of cases are distinguishable when determining whether the Appeal Division’s decision or order is final pursuant to s. 49.38 of the Act given the context in which they were decided.
16In that regard, a civil proceeding is quite different than a regulatory proceeding and specifically a conduct proceeding under the Act. In regulatory proceedings, fragmentation and/or bifurcation of issues and piecemeal court proceedings are discouraged. Rather the preferred course is to allow matters to run their full course before the tribunal and then consider all the legal issues arising from the proceeding, following its conclusion. In conduct proceedings that involves a finding of professional misconduct or conduct unbecoming.
17The policy reasons giving rise to this distinction were clearly set out by Mark Sandler as Chair of the Appeal Panel in Law Society of Upper Canada v. Paul Alexander Robson, 2013 ONLSAP 3, 2013 ONLSAP 0003 at para. 31:
...The policy considerations that apply in the disciplinary setting are very different than in those civil cases cited above [Ball v. Donais; Stoiantsis]. As we stated in Coady 2005 at paragraph 55, and as stated by the Alberta Court of Appeal in Partington, the hearing process would soon grind to a halt if mid-hearing rulings were generally subject to immediate appeal. Seized panels would be unable to fulfill their responsibilities in a timely and effective way. This has implications for the public, members of the profession, and the Society. This is especially so when it is remembered that a full hearing on the merits may make the appeal academic, and that there is an appeal from the final decision following a disciplinary hearing.
18The Moving Party submits that the order of the Tribunal deprives him of his right to present evidence to rebut the allegations of misconduct and conduct unbecoming. He submits that if the order stands and the Law Society can rely on the findings of the trial judge in Alfano, the Tribunal will have no option but to make a finding of professional misconduct or conduct unbecoming in his conduct proceeding.
19While that result may be so, it is premature as the Tribunal has not yet made any finding of professional misconduct or conduct unbecoming in the Moving Party’s conduct proceeding.
20Further, I do not consider that the Moving Party has been deprived of his right to make full answer and defence. He is not prevented from arguing, as he raises in his factum, that the findings of the trial judge in Alfano cannot be relied upon because they are implicit as opposed to clear and unequivocal. Nor is he prevented from arguing on appeal at the conclusion of the conduct proceedings that the order of the Tribunal in issue was wrong.
Conclusion
21For the above reasons, I am satisfied that the Motion Judge was correct in her decision and made no error of law in concluding that the Appeal Division’s order was not a final order and the Divisional Court had no jurisdiction to hear the appeal.
22The Moving Party’s motion is therefore dismissed.
23The Law Society is entitled to its costs of the motion payable by the Moving Party and fixed in the amount of $2,500, as agreed to by the parties.
L.A. Pattillo J.
I agree Kiteley J.
I agree Cavanagh J.
Released: February 21, 2018
CITATION: The Law Society of Upper Canada v. Piersanti, 2018 ONSC 640
DIVISIONAL COURT FILE NO.: 164/17
DATE: 20180221
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, PATTILLO AND CAVANAGH JJ.
BETWEEN:
THE LAW SOCIETY OF UPPER CANADA
Respondent/
(Respondent Party on Motion)
– and –
CHRISTIAN RONALD PIERSANTI
Appellant
(Moving Party on Motion)
REASONS FOR JUDGMENT
PATTILLO J.
Released: February 21, 2018