Khan v. The Law Society of Ontario, 2019 ONSC 5800

Citation and Court Information

CITATION: Khan v. The Law Society of Ontario, 2019 ONSC 5800
DIVISIONAL COURT FILE NO.: DC-19-0017
DATE: 20191011

ONTARIO

SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

KITELEY, POMERANCE, and MYERS JJ.

BETWEEN:

OMAR SHABBIR KHAN

Appellant

– and –

THE LAW SOCIETY OF ONTARIO and THE LAW SOCIETY TRIBUNAL

Respondents

Self-Represented

Glenn M. Stuart, lawyer for the Respondent the Law Society of Ontario

Lisa Mallia, lawyer for the Respondent the Law Society Tribunal

HEARD at Hamilton: October 7, 2019

Reasons for Judgment

MYERS J. (Orally):

Background

1The applicant seeks judicial review of a decision of a single member of the Law Society Tribunal, Appeal Division, dated April 4, 2019. The Member granted the Law Society’s motion and struck Mr. Khan’s appeal book because it included fresh evidence without Mr. Khan having obtained leave to admit fresh evidence first as required by the Appeal Division’s Rules.

2Mr. Khan brought a cross-motion for a stay of his revocation pending the appeal and for an urgent appeal management conference to deal with fresh evidence issues. In dismissing the cross-motion, the Member specifically allowed Mr. Khan to move under Rule 14.1 to the panel that will hear the appeal to seek to admit the fresh evidence and the Member extended the time for Mr. Khan to file his new appeal book and bring his motion. The Member also dismissed the Law Society’s request to strike certain grounds of appeal raised by Mr. Khan.

Analysis

3In Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, the Court of Appeal recognized that absent exceptional circumstances, a court should not interfere in administrative proceedings until they have run their course. This is especially the case where there is an alternative remedy available under the administrative scheme.

4Mr. Khan is entitled to go to the panel of the Appeal Division and make all the arguments he made to us today. Requiring him to do so respects the administrative decision-making process and the Legislature’s intent that the internal review process be exhausted by the parties before they have recourse to the court. In addition, Mr. Khan may succeed below and obviate any need for a judicial review application. Further, if the appeal ultimately proceeds, the court will be informed by the view of the Appeal Division on the issues raised by Mr. Khan.

5Efforts to seek judicial review of interlocutory decisions fragment the administrative process. Piecemeal proceedings increase cost and delay. This case is an example where the “big picture” of Mr. Khan’s licensure could have been addressed by now by the Appeal Division had this proceeding not been brought. Mr. Khan’s argument that the interests of justice under Rule 6.5 of the Law Society Tribunal’s Rules trumps Rule 14.01 can be made at the Appeal Division. His assertion of concern for the independence of the Appeal Division is not a recognized basis for early intervention by the court absent exceptional circumstances (Obouhov v. Lunn, 2018 ONSC 772).

Disposition

6The appeal is dismissed as premature.

7We are told that an appeal management conference is scheduled for October 21, 2019. The Law Society’s counsel assures us that the Law Society is not going to argue that it is too late for Mr. Khan to bring his motion to admit fresh evidence. Mr. Khan can schedule the perfection of his appeal and the motion for fresh evidence at the appeal management conference.

8It is apparent that Mr. Khan’s motion for a stay of his revocation pending the appeal was not dealt with by the Member. We note that Mr. Khan filed no evidence to support this relief. He may raise that issue too at the appeal management conference if so advised.

KITELEY J. (Orally):

Costs

9I have endorsed the application record as follows:

The application for judicial review of the decision of the Panel Member Wardle dated April 4, 2019 is dismissed because it is premature. Mr. Khan shall pay costs of this application to the Law Society in the amount of $5,000.00 payable within 60 days of release of the decision of the appeal panel.

___________________________ Myers J.

I agree

Kiteley J.

I agree

Pomerance J.