Court File and Parties
DIVISIONAL COURT FILE NO.: 940/21
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: POLANSKI v. LAW SOCIETY OF ONTARIO
BEFORE: D.L. Corbett J.
HEARD: March 3, 2022, by ZOOM videoconference, at Toronto
COUNSEL: Charles Thomas Polanski, on his own behalf Nisha Danoa and Amanda Worley, for the Law Society of Ontario
REASONS FOR DECISION
1This is a motion by the Law Society to quash this appeal for lack of jurisdiction.
Background
2Mr Polanski applied to the Law Society to be licensed as a lawyer in Ontario. The Law Society referred this application to a Hearing Panel of the Law Society pursuant to s.27(4) of the Law Society Act.1
3The Hearing Panel dismissed Mr Polanski’s application (2020 ONLSTH 115), with costs (2020 ONLSTH 140). An appeal by Mr Polanski to the Appeal Panel was dismissed (2021 ONLSTA 26). Mr Polanski then appealed to this court.
Jurisdiction of this Court
4This court is a statutory court and has no jurisdiction other than that conferred by statute.2
5The Law Society Act provides as follows:
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.
6This proceeding was brought before the Law Society Hearing Panel under s.27(4), and not under either of ss. 34 or 38. Therefore this court does not have jurisdiction under s.49.38(b). Mr Polanski does not argue otherwise.
7The Law Society argues that this proceeding is not in respect to a decision or order of the Hearing Division under subsection 31(3). That subsection reads:
The Hearing Division may refuse to restore the licence of a person whose licence is in abeyance if the Division finds that the person was removed or resigned from an office described in subsection (1) because of,
(a) conduct that was incompatible with the due execution of the office;
(b) failure to perform the duties of the office; or
(c) conduct that, if done by a licensee, would be professional misconduct or conduct unbecoming a licensee.
“A person whose license is in abeyance” refers to a person whose license is held in abeyance while they hold judicial office, as described in s.31(1). The parties agree that the Hearing Division did not make an order in this proceeding pursuant to s.31(3).
8The Law Society argues that, since this case does not involve an order or decision under s.31(3), this court does not have jurisdiction pursuant to s.49.38(a). Mr Polanski does not agree with this argument. He says that the phrase “subsection 31(3)” means s.49.31(3) and not s.31(3).
Analysis
9On a “plain language” reading of the disputed provision, “subsection 31(3)” means s.31(3). Throughout the Law Society Act, other provisions are written in this way. Aside from the disputed provision, there is nowhere in the Law Society Act where a subsection is written by reference only to numbers appearing after a decimal point in the section number. Mr Polanski was unable to refer to any other provision in any law of Ontario or of Canada where a provision is referenced in legislation by means only of the numbers appearing after a decimal point.
10There are provisions in the Law Society Act where a subsection is referenced without reference to a section number. This occurs where one subsection refers to another subsection within the same section. An example was provided by Mr Polanski in argument: subsection 1(1.1) states that “‘Firm’, as defined in subsection (1), does not include… [various listed entities].” Subsection 1(1) contains a definition of “firm” that is expressly “subject to subsection (1.1).” Where, as in these two examples, cross-reference is made to subsections within the same section, only the subsection number may be used. Another such example is found in s.31, quoted above in paragraph 6.
11From these observations, the plain language meaning of “subsection 31(3)” is s.31(3). But might this plain language reading be in error? Might “subsection 31(3)” mean, instead, s.49.31(3)?
12Section 49.31 reads as follows:
Hearing of appeals
49.31 (1) An appeal to the Appeal Division shall be determined after a hearing by the Appeal Division.
Assignment of members
(2) The chair or, in the absence of the chair, the vice-chair shall assign members of the Appeal Division to hearings.
Composition at hearings
(3) An appeal to the Appeal Division shall be heard and determined by such number of members of the Division as is prescribed by the regulations.
Reading this section, it is clear that s.31((3) in s.49.38(3) cannot be referring to s.49.31(3). Subsection 49.31(3) prescribes the composition of Appeal Division panels by reference to the regulations. The Hearing Panel cannot make “an order or decision under [s.49.31(3)].” A “decision” made under s.49.31(3) – as to the composition of an Appeal panel – is made by the chair or vice-chair, pursuant to s.49.31(2), and not by the Hearing panel. Subsection 49.31(3) determines the number of members who shall hear and determine a matter before the Appeal Division. No decisions are made pursuant to s.49.31(3), and the effect of the provision is to prescribe one aspect of a decision made under s.49.31(2).
13Mr Polanski characterizes the provision more broadly. He argues that the reference to s.49.31(3) means that any decision made by the Appeal Panel may be appealed to the Divisional Court (since all Appeal Panels are constituted in accordance with s.49.31(3)). Simply put, that cannot be. If that reading is correct, then every final decision of the Appeal Panel would be subject to appeal to the Divisional Court. That would fly in the face of the clear words of s.49.38, which provides for an appeal to the Divisional Court from a final order of the Appeal Panel “if” the case falls under two scenarios. By necessary implication, other final decisions of the Appeal Panel are not subject to appeal to the Divisional Court. On Mr Polanski’s reading, every final decision of the Appeal Division would be subject to appeal to Divisional Court. There would be no content to s.49.38(b).
14When the interpretation argued by the Law Society is examined, it encounters none of these problems. Section 34 concerns proceedings before the Hearing Division where it is alleged that a licensee has contravened s.33. Section 38 concerns proceedings before the Hearing Division where it is alleged that a licensee is or has been incapacitated. Subsection 31(3) concerns proceedings before the Hearing Division where the Society seeks an order refusing to restore a license to a former licensee whose license has been held in abeyance while in judicial office. What these hearings have in common is that the professional involved is already a licensee of the Law Society or is a former licensee entitled to have their license restored unless the Hearing Division orders otherwise.
15As a matter of plain language and common sense, s.49.38 provides that a right of appeal exists for only a subset of final decisions of the Appeal Division. Were this not the case, then the provision would simply provide a right of appeal from any final decision of the Appeal Division. Provisions like this abound in Ontario law, and there is no reason the Legislature would have used such convoluted language to express an unqualified right of appeal.
16On a textual analysis, I conclude that the plain meaning of the provision is, as it reads, that subsection 31(3) means s.31(3).
17Mr Polanski argued that the “proximity principle” and “principles of logistics” favour his approach to statutory interpretation. He was unable to point to any legal authority for these propositions. He argued about his subjective experience as a reader of the statute and how it brought him to his understanding of those provisions. Statutory interpretation is not a matter of subjective understanding, but rather objective textual exegesis.
18Finally, Mr Polanski argued that the interpretation offered by the Law Society would lead to an “absurdity”. When this argument is examined more closely, it is really an appeal to an anagogic assessment of the competing interpretations: on the basis of first principles of law, justice, fairness and vindication of rights, he should have a full right of appeal, and an interpretation that leads to a contrary result should be rejected, when a competing interpretation is available. Or, put another way, when viewed within the broader lens of the values of our legal system, this court should conclude that Mr Polanski should have a right of appeal and the Legislature should not be taken to have intended otherwise.
19This argument fails on its own merits, and I do not have to consider how to resolve a conflict between the apparent plain meaning of the provision and deeper values of our legal system.
20The task of regulating the legal profession has been assigned to the Law Society by the Legislature. This is in keeping with the general approach to regulation of professions in Ontario. Doctors, lawyers, teachers, nurses, funeral directors – and many other professionals, are subject to self-regulation.
21Administrative proceedings at a governing body of a self-regulated profession are a subset of administrative proceedings that are subject to supervision by the courts. The Legislature determines the nature of that judicial oversight, which under our current administrative law regime may include rights of appeal and rights to seek judicial review. The Legislature may limit or eliminate rights of appeal. The Supreme Court of Canada has been clear in Vavilov3 that the courts must respect the choices made by the Legislature to limit or eliminate appeals.
22Mr Polanski argues, in effect, that there can be no principled distinction between the hearing in his case and the kinds of hearings for which recourse to Divisional Court may be available. All conduct hearings (including those concerning “character” as reflected in “conduct”) determine whether a person should be licensed to practice law. In the cases where appeals are available, those persons are already or have previously been licensed. In Mr Polanski’s case, he seeks initial admission as a licensee.
23Mr Polanski adds that, when it comes to the legal profession, limiting the role of the courts cannot be defended in the same way that it might be defensible for other professions: judges, being former lawyers, and being responsible to some extent for supervising the legal profession when it works before the courts, are well suited to review decisions about the suitability of potential licensees. This argument, made to buttress Mr Polanski’s main argument respecting “absurdity”, reveals the problem in his reasoning. The argument goes that judges are capable of regulating lawyers, and therefore that judges should have a greater role in reviewing decisions from the Law Society than may be accorded to the courts in respect to other professions. Simply put, that is a question for the Legislature to decide, and it is in no way absurd for the Legislature to conclude that the legal profession should be regulated by lawyers and not by judges.
24In my view, it does not offend any larger principles for the Legislature to limit appeals to this court from the Law Society. This is a choice for the Legislature to make, and a reading of the Law Society Act that construes it within the general context of professional self-regulation gives rise to no “absurdity”.
25My conclusion is supported by the jurisprudence on this issue. Numerous applications for judicial review have been brought in respect to appeals originating from hearings conducted pursuant to s.27 of the Act.4 If an appeal was available, this court would ordinarily have refused to hear an application for judicial review in these cases unless appeal rights had been exhausted. Further, there is not a single case of this court having disposed of such a matter by way of an appeal. It is true, as Mr Polanski argues, that this court has never expressly ruled on the point raised in this appeal. However, that does not change the point that all of the cases that do exist (all of which are panel decisions binding on me as a single motions judge of the Divisional Court) weigh against the interpretation urged by Mr Polanski.
26“Subsection 31(3)” in s.49.38(a) refers to s.31(3), and not to s.49.31(3). In this case the decision of the Hearing Division that was the subject of the appeal before the Appeal Division was made under s.27(4) of the Act, and not under any of ss. 31(3), 34 or 38. This court has no jurisdiction to hear this appeal.
27Mr Polanski has chosen the wrong process to seek recourse in this court. I quash his appeal for lack of jurisdiction but grant him an extension of the time in which to commence an application for judicial review to April 12, 2022.
28The Law Society has prevailed and is entitled to its costs, which I fix at $3,000, inclusive, payable within thirty days.
“D.L. Corbett J.”
March 8, 2022
Footnotes
- Law Society Act, RSO 1990, c. L.8 (the “LSA” or the “Act”).
- Grand River Enterprises v. Burnham (2005), 10 CPC (6th) 139, para. 19 (Ont. CA); Law Society of Upper Canada v. Piersanti, 2018 ONSC 640, para. 11 (Div. Ct.).
- Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
- Shore v. Law Society of Upper Canada (2009) 2009 18300 (ON SCDC), 96 OR (3d) 450 (Div. Ct.); Gold v. Law Society of Upper Canada 2013 ONSC 1229 (Div. Ct.); Payne v. Law Society of Upper Canada, 2014 ONSC 1083 (Div. Ct.); Riddell v. Law Society of Upper Canada, 2016 ONSC 6631 (Div. Ct.); Kopyto v. Law Society of Upper Canada, 2016 ONSC 7545; Mundulai v. Law Society of Upper Canada, 2018 ONSC 6965 (Div. Ct.).