CITATION: Fabrikant v. Law Society of Ontario, 2018 ONSC 7393

DIVISIONAL COURT FILE NO.: DC187/18 DATE: 20181211

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

C. HORKINS, CONWAY, LABROSSE JJ.

BETWEEN:

DR. V. I. FABRIKANT Applicant

– and –

LAW SOCIETY OF ONTARIO Respondent

Dr. V. I. Fabrikant, via teleconference

Sharon Greene, for the Respondent

HEARD at Toronto: December 6, 2018

The court

introduction

[1] The Applicant, Dr. V. I. Fabrikant, made a complaint about a lawyer to the Respondent, Law Society of Ontario (the “Law Society”). The Applicant seeks judicial review of the refusal of the Complaints Resolution Commissioner of the Law Society of Ontario (the “Commissioner”) to exercise his jurisdiction to review the Applicant’s complaint. The Applicant also challenges the jurisdiction of the Assistant Manager, Intake & Resolution (the “Assistant Manager”) to deal with his complaint.

[2] The Applicant seeks a declaration that the Commissioner improperly declined to exercise his jurisdiction and a declaration that the Assistant Manager acted without jurisdiction. The Applicant also seeks an order requiring the Law Society to conduct an investigation of his complaint.

BACKGROUND

[3] In 2014, the Applicant filed a complaint against Correctional Service Canada with the Canadian Human Rights Commission. This complaint was referred to the Human Rights Tribunal and settled in 2016.

[4] After the settlement, the Applicant requested and received a complete copy of his complaint file from the Canadian Human Rights Commission. This request was made pursuant to the Privacy Act, R.S.C., 1985, c. P-21. A number of documents in the file were excluded due to privilege in the communications between counsel for the Canadian Human Rights Commission (Mr. Giacomo Vigna) and counsel for Correctional Service Canada (Ms. Rainville).

[5] On March 11, 2017, the Applicant filed a complaint with the Law Society against Mr. Vigna, a licensee of the Law Society. As noted, Mr. Vigna had acted as counsel for the Canadian Human Rights Commission on the Applicant’s 2014 complaint.

[6] In the complaint to the Law Society, the Applicant alleged that Mr. Vigna had improperly claimed solicitor-client privilege. Many of the excluded documents were email communications between Ms. Rainville and Mr. Vigna. The Applicant was of the view that they did not have a solicitor-client relationship and so Mr. Vigna could not claim privilege. The Applicant alleged that he asked for an explanation and Mr. Vigna refused to do so.

[7] Ms. Tanya Chu, Law Society Bilingual Intake and Resolution Officer, was assigned to assess the Applicant’s complaint. She contacted Mr. Vigna and provided him with a copy of the complaint. Mr. Vigna maintained that the communications in issue were privileged. He did not claim solicitor-client privilege. He told Ms. Chu that he had referred the Applicant to Ginnette Bastien, Access to Information and Privacy Coordinator. If dissatisfied with this referral, Mr. Vigna told the Applicant that he could address his concern with the Privacy Commissioner or Information Commissioner of Canada.

[8] On November 3, 2017, Ms. Chu informed the Applicant that she had reviewed the complaint and had concluded that no further investigation was warranted. She advised the Applicant that the file was closed because the Applicant’s complaint related to a legal issue (obtaining excluded documents) and not an issue of professional conduct.

[9] Ms. Chu explained that the Law Society does not provide legal advice, legal opinions or legal services and suggested that the Applicant may wish to consult a lawyer. Finally, Ms. Chu told the Applicant that “[i]n order to conduct further investigation, s. 49.3(2) of the Law Society Act, R.S.O. 1990, c. L.8 (“the Act”) requires a reasonable suspicion that Mr. Vigna may have engaged in professional misconduct.” Based on the information, Ms. Chu concluded that the complaint did not meet this test and the file was closed.

[10] On November 6, 2017, the Applicant wrote to Ms. Chu and told her that he disagreed with her decision. The next day, Ms. Chu notified the Applicant that he could request a review of her decision to close the file. She told the Applicant that the review would be undertaken by the Assistant Manager. In this letter, Ms. Chu provided the Applicant with information about the review process. She also enclosed a copy of the Reasons for Request Form that the Applicant would have to complete.

[11] On November 10, 2017, the Applicant wrote to Ms. Chu and said that she had failed to describe the complete appeal procedure. Ms. Chu replied and told the Applicant that he had to complete the Reasons for Request form if he wanted to have the decision reviewed. The same day the Applicant wrote to Ms. Chu again and asked what his options were if he disagreed with the Assistant Manager’s decision. In her reply, Ms. Chu reminded him that all of the information was in her November 7, 2017 letter.

[12] On November 11, 2017, the Applicant sent his Request for Review to the Law Society. In his Request, the Applicant stated that Ms. Chu “distorted” the summary of his complaint because he said his complaint was not about excluded documents. Instead, he was accusing Mr. Vigna of professional misconduct, “namely a solicitor client relationship with the Respondent”. He stated that the “existence of exempted document[s]” was “proof of [Mr. Vigna’s] guilt”.

[13] Prior to dealing with the Request for Review, there were a series of emails exchanged between the Applicant and Lisa Osak, Manager, Intake and Resolution at the Law Society. In this communication, Ms. Osak summarized the reasons why Ms. Chu closed the Applicant’s complaint. She confirmed that the Law Society had received his Request for Review. Ms. Osak advised that reviews are conducted in the order in which they are received and that there is no appeal from the decision of the Assistant Manager. She further explained that, pursuant to the Law Society’s By-Law 11, a complaint could be reviewed by the Commissioner if the file was authorized for investigation under section 49.3 of the Act. Ms. Osak explained that because the Applicant’s complaint had been dealt with in the Intake and Resolution Department and had not been authorized for an investigation, it was not eligible for review by the Commissioner.

[14] On December 12, 2017, the Applicant sent an e-mail to the Commissioner requesting a review of his complaint. The Commissioner responded on January 4, 2018, stating that “[s]ince an investigation into the merits of your complaint was not conducted by the Law Society, I have no jurisdiction to conduct a review.”

[15] On May 16, 2018, Sharon Seenath, Assistant Manager, advised the Applicant that having reviewed his complaint and Reasons for Review, she agreed with Ms. Chu’s decision to close the file.

[16] The Applicant argues that the Commissioner illegally refused to exercise his jurisdiction to review the Applicant’s complaint under the pretext of not having jurisdiction because the Applicant’s complaint was not considered by the Law Society. The Applicant also argues that the Assistant Manager acted without jurisdiction because there is no by-law that provides the Assistant Manager with jurisdiction.

[17] The Law Society argues that the Commissioner did not have any jurisdiction to review the compliant. As a result, the Commissioner cannot refuse to exercise discretion that he does not have. Further, the jurisdiction of the Assistant Manager is derived from the Law Society’s statutory mandate set out in the Act.

analysis

[18] For the reasons set out below, we agree with the Law Society and dismiss this application for judicial review.

Did the Commissioner err in refusing to exercise his jurisdiction to review the Applicant's complaint?

[19] This raises a true question of jurisdiction: did the Commissioner have the authority to make the inquiry that the Applicant requested? In this case the standard of review is correctness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 59. However, if this is not a true question of jurisdiction, we find that the Commissioner’s response also meets a standard of reasonableness.

[20] Sections 4(1) and (2) of By-Law 11, address when a complaint may be reviewed by the Commissioner. For the purpose of this application s. 4(1) (a) is relevant. Section 4(1) states:

4. (1) A complaint may be reviewed by the Commissioner if,

(a) the merits of the complaint have been considered by the Society;

(b) the complaint has not been disposed of by the Proceedings Authorization Committee, Hearing Division or Appeal Division;

(c) the complaint has not been previously reviewed by the Commissioner; and

(d) the Society has notified the complainant that it will be taking no further action in respect of the complaint.

[Emphasis added.]

[21] Under 6. (1) of the By-Law the Society “shall refer to the Commissioner for review every reviewable complaint in respect of which a complainant has made a request under, and in accordance with, section 5” [emphasis added].

[22] The Applicant argues that the Commissioner illegally refused to exercise his jurisdiction to review his Complaint under the pretext of not having jurisdiction.

[23] The Applicant argues that since all of the conditions in s. 4(1) have been met the Commissioner has jurisdiction to review his complaint. As a result, his failure to do so is a reviewable error. We disagree.

[24] The criterion in s. 4(1) (a) has not been met. The Law Society did not consider the “merits of the complaint”. The Applicant’s complaint was not authorized for investigation because the concerns raised in the complaint related to a legal issue and did not raise any professional conduct concerns. While the Applicant argues that he is complaining about Mr. Vigna’s professional conduct, Ms. Chu concluded that the complaint was a legal issue and the Assistant Manager agreed. We agree with this characterization of the complaint.

[25] The Law Society correctly concluded that the complaint fell outside the Society’s statutory mandate to deal with matters of professional misconduct or conduct unbecoming a licensee. As a result, the merits of the complaint were not dealt with and the file was closed. In these circumstances, the Commissioner did not improperly decline to exercise his jurisdiction. He cannot refuse to exercise discretion that he does not have.

Did the Assistant Manager act without jurisdiction?

[26] The Applicant challenges the authority of the Assistant Manager to review his complaint. He argues that the Assistant Manager acted without jurisdiction because there is no by-law that provided her with jurisdiction.

[27] We reject the Applicant’s position. The jurisdiction of the Assistant Manager is derived from the Law Society’s statutory mandate as set out in the Act and supported by common law.

[28] The Law Society is the regulator of the legal profession in Ontario. It is tasked with self-regulating in the public interest. The Law Society’s duty to protect the public interest has been held to be an “important and onerous duty”. Law societies have been found to have broad and expansive regulatory powers in the exercise of their mandates (Trinity Western University v. Law Society of Upper Canada, 2018 SCC 33, at paras. 5, 49; Wise v. Law Society of Upper Canada, [2010] O.J. No. 2158 (Div. Ct.), at paras. 19-26; Green v. Law Society of Manitoba, 2017 SCC 20 at paras. 27-32, 42)

[29] In Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 at para. 37, the court affirmed that, where the legislature has delegated aspects of professional regulation to a professional body, “that body has primary responsibility for the development of structures, processes, and policies for regulation” [emphasis added].

[30] The Law Society developed an internal process for handling complaints, including managerial review of staff decisions to close complaints in the Law Society’s Intake & Resolution Department. In doing so, it was exercising the “primary responsibility” noted in Trinity Western.

[31] On November 7, 2017, the Law Society’s internal process was made clear to the Applicant when Ms. Chu provided him with an Information Sheet entitled “Request for Review of File Closed in Intake & Resolution”.

[32] In summary, the Assistant Manager did not act without jurisdiction.

conclusion

[33] The application for judicial review is dismissed.

[34] The Respondent is entitled to costs of this application. We order the Applicant to pay the Respondent costs fixed at $5,000 all inclusive. This is a fair and reasonable amount.

___________________________ C. Horkins J.

Conway J.

Labrosse J.

Released: December 11, 2018

CITATION: Fabrikant v. Law Society of Ontario, 2018 ONSC 7393

DIVISIONAL COURT FILE NO.: DC187/18 DATE: 20181211

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

C. Horkins, Conway, Labrosse JJ.

BETWEEN:

DR. V. I. FABRIKANT Applicant

– and –

LAW SOCIETY OF ONTARIO Respondent

REASONS FOR JUDGMENT

C. Horkins J.

Released: December 11, 2018