Court File and Parties
DIVISIONAL COURT FILE NO.: 619/23 DATE: 2024-04-02 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT
RE: DAVID GRANT ISAAC, Appellant AND: LAW SOCIETY OF ONTARIO, Respondent
BEFORE: Matheson J.
COUNSEL: Self-represented Appellant Adrienne Lei, for the Law Society of Ontario
HEARD: In writing.
Endorsement
[1]
Introduction
By notice from the Registrar dated March 14, 2024, Mr. Isaac was given notice that the Court is considering making an order staying or dismissing this proceeding under r. 2.1.01 of the Rules of Civil Procedure.
[2]
Background
Mr. Isaac filed a notice of appeal in October 2023 that seeks to appeal what is described as a decision of the Law Society Tribunal, Appeal Division dated September 18, 2023, by Malcom M. Mercer, Chair (the “Endorsement”) arising from a motion brought by Mr. Isaac.
3The Endorsement concluded as follows:
I conclude that I do not have the authority to set aside the vexatious litigant order. In any event, I would not do so based on Mr. Isaac’s submissions.
I conclude that I do not have the authority to set side [sic] and reverse the decisions made in appeals 18A-007, 19A-003 and 20A-009. In any event, I would not do so based on Mr. Isaac’s submissions.
I conclude that appeal 22A-017 should not be reinstated. In my view, Mr. Isaac has not shown sufficient merits. He has not sought to explain his delays. The justice of the case is not such that this appeal should be reinstated.
4Mr. Isaac’s notice of appeal of the Endorsement does not set out any statutory provision giving him a right of appeal.
5After a case conference before me on March 1, 2024, I gave the following directions regarding this proposed appeal:
Mr. Isaac submitted a notice of appeal in October 2023, seeking to appeal a decision of the Law Society Tribunal - Appeal Division dated September 18, 2023. The LSO did not take a position at the time and now objects. Mr. Isaac submits that there is a statutory right of appeal under s. 49.32(1)(2) of the Law Society Act. However, those provisions relate to appeals from the Hearing Division to the Appeal Division, not to the Divisional Court. There are other provisions in the Act that do provide a right of appeal to the Divisional Court in certain circumstances. Since it was not done before, the LSO shall reply all to this email by March 7, 2024, setting out, in two paragraphs, why it takes the position that there is no right of appeal, after which there will be further directions.
6The Law Society responded as follows:
The Law Society submits that there is no right of appeal for the following reasons:
Mr. Isaac seeks to appeal an endorsement of the Law Society Tribunal Appeal Division made at a Proceedings Management Conference hearing before Chair Malcolm Mercer dated September 18, 2023. The proceeding before Chair Mercer was a motion brought by Mr. Isaac for an order: (a) to reinstate his appeal in 22A-017, (b) to set aside a vexatious litigant order made by the Law Society Tribunal Hearing Panel, (c) to grant appeals in 18A-007, 19A-003 and 20A-009, (d) to reinstate his LSO licence, and (e) costs. Chair Mercer dismissed all of Mr. Isaac’s requests.
Section 49.38 of the Law Society Act does not provide a statutory right of appeal to the Divisional Court from the endorsement. The endorsement is not a final decision or order made on an appeal from a decision or order of the Hearing Division under s. 31(3), which governs the restoration of the licence of a person following an appointment to judicial office. The motion before Chair Mercer is not a proceeding commenced under s. 34 (misconduct application) or s. 38 (capacity application) of the Act. The endorsement of Chair Mercer is not a “final” determination of professional misconduct or conduct unbecoming (see: Law Society of Upper Canada v. Kivisto, 2016 ONSC 1400 (Div. Ct.), ¶12).
7A notice under r. 2.1 was sent out on March 14, 2024, further to my directions of that date, as follows:
Mr. Isaac has submitted that he has a statutory right of appeal under s. 49.32(1)(2) of the Law Society Act. However, those provisions relate to appeals from the Hearing Division to the Appeal Division, not to the Divisional Court. The LSO submits that there is no right of appeal. Mr. Isaac now submits that this jurisdiction issue has not been properly challenged under the Rules of Civil Procedure and the LSO cannot now do so because it failed to object to his appeal in a timely manner. He has not put forward another statutory provision that gives him a right of appeal.
The Registrar is directed to give notice under r. 2.1 of the Rules of Civil Procedure that the Court is considering dismissing his appeal for want of jurisdiction under r. 2.1.
[8]
Analysis
Mr. Isaac has provided submissions both in response to the Law Society’s position and the Court’s r. 2.1 notice. He submits that there was a misconduct decision under. s. 34 of the Act and that the Endorsement finally ended the appeal process from that misconduct decision. He therefore submits that his right of appeal arises under s. 49.38, rather than s. 49.32, of the Law Society Act.
9The Endorsement addressed requests by Mr. Isaac to reopen or reinstate appeals to the Appeal Division from the Hearing Division. The denial of that relief was not a final order giving rise to a right of appeal. Otherwise, a party need only bring an unsuccessful motion to reopen or reinstate an appeal to have a perpetual opportunity to appeal to the Court. Section 49.38 expressly provides a right of appeal from a “final” order or decision of the Appeal Division only.
10Subrule 2.1.01(1) authorizes the Court to dismiss an appeal as frivolous or vexatious or otherwise an abuse of the process of the court. However, r. 2.1 should only be used for “the clearest of cases”: Scaduto v. The Law Society of Upper Canada, 2015 ONCA 733, at para. 8. This is such a case. There is no right of appeal from the Endorsement to this Court. The proposed appeal is an abuse of process.
11Mr. Isaac submits that this issue has not been properly challenged under the Rules of Civil Procedure. On the contrary, this Court has invoked the procedure that is available under r. 2.1.
12Mr. Isaac submits that if r. 2.1 was appropriate it would have been raised by the judge who directed that there be the above case conference. This submission does not create a barrier to this Court proceeding under r. 2.1 as described above. Proper notice was given under r. 2.1 after the case conference.
13Mr. Isaac relies heavily on the delay by the Law Society, in failing to object to his appeal in a timely manner after it was brought last October. However, that delay does not give this Court jurisdiction to hear the proposed appeal where there is no statutory right of appeal.
[14]
Disposition
This proceeding is therefore dismissed under r. 2.1 of the Rules of Civil Procedure.
Matheson J.
Date: April 2, 2024