Court File and Parties
DIVISIONAL COURT FILE NO.: 481/24
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Michael Israel Rappaport Appellant/Moving Party
– and –
Law Society of Ontario Respondent
Counsel: Michael Rappaport, self-represented Elaine Strosberg, for the Respondent
HEARD at Toronto: October 1, 2024
BEFORE: Davies J.
REASONS FOR DECISION
A. Overview
1The Hearing Division of the Law Society Tribunal found Mr. Rappaport engaged in professional misconduct by failing to serve one of his clients in a family matter to the standard of a competent lawyer and by failing to encourage respect for the administration of justice. The Hearing Division imposed a five-month suspension and ordered Mr. Rappaport to pay $55,000 in costs.
2Mr. Rappaport appealed that decision to the Appeal Division of the Law Society Tribunal and was granted a stay of the Hearing Division’s decision pending his appeal.
3On July 25, 2024, the Appeal Division dismissed Mr. Rappaport’s appeal and ordered the five-month suspension to start on August 26, 2024. Mr. Rappaport has appealed that decision to the Divisional Court. He now seeks a stay of that decision pending his appeal.1
4The onus is on Mr. Rappaport to demonstrate that it is in the interest of justice to grant him a stay of the Appeal Division’s decision pending the outcome of his appeal in this Court: Louis v. Poitras, 2020 ONCA 815 at para. 16. When considering whether it is in the interest of justice to grant a stay, I must consider three interrelated factors: (1) whether there is a serious issue to be determined on the appeal; (2) whether Mr. Rappaport will suffer irreparable harm if the stay is not granted; and (3) whether the balance of convenience favours granting or denying the stay: RJR-MacDonald Inc. v. Canada (Attorney General, 1994 117 (SCC), [1994] 1 S.C.R. 311, at p. 334, Kitmitto et al. v. Ontario Securities Commission, 2023 ONSC 1739 at para. 5.
5For the following reasons, I grant Mr. Rappaport’s motion.
B. Serious Issue on the Appeal
6The Law Society takes the position that Mr. Rappaport’s appeal is frivolous and vexatious. The Law Society argues Mr. Rappaport has simply recycled the arguments he made before the Appeal Tribunal, all of which were dismissed.
7The threshold for establishing a serious issue on appeal is low. My task is not to engage in a thorough analysis of the merits of Mr. Rappaport’s appeal. So long as I am satisfied that some of the grounds Mr. Rappaport advanced in his Notice of Appeal are neither vexatious nor frivolous, I should consider the second and third elements of the tests, even if I think he is unlikely to succeed on his appeal.
8I agree with the Law Society that many of the grounds raised by Mr. Rappaport are unlikely to succeed. However, I am satisfied that at least one ground of appeal raises a serious issue.
9Mr. Rappaport raised a Charter argument for the first time before the Appeal Division of the Law Society Tribunal. He argued that the disciplinary proceedings and the Hearing Division’s decision violated his rights to freedom of expression under s. 2(b) of the Charter.
10The Appeal Division found that Mr. Rappaport’s right to freedom of expression was engaged by the Law Society’s disciplinary action because the Hearing Division’s finding that Mr. Rappaport failed to encourage respect for the administration of justice was, in part, based on the fact that he published his complaint to the Canadian Judicial Council on a website he created and he failed to take the website down after he was told the Canadian Judicial Council was not going to investigate his complaint. The misconduct finding was also based, in part, on the fact that Mr. Rappaport filed an affidavit containing personal attacks against the judge. The Appeal Division accepted that publishing information on a website and drafting an affidavit are forms of expression and the Law Society’s disciplinary action was an infringement on his freedom of expression. Nonetheless, the Appeal Division found that it was open to the Hearing Division to conclude that Mr. Rappaport’s expression frustrated rather than promoted “the principle of accountability that underpins both Rule 5.6-1 and the right of lawyers to free expression under s. 2(b) of the Charter.”
11In his Notice of Appeal in this Court, Mr. Rappaport argues the Appeal Division failed to consider and apply the Supreme Court of Canada’s decision in Groia v. Law Society of Upper Canada, 2018 SCC 27. In Groia, the Supreme Court adopted a three-part test for assessing whether a lawyer’s in-court behaviour constitutes misconduct. The Supreme Court ruled that law society disciplinary panels should consider (a) what the lawyer said, (b) the manner and frequency in which it was said, and (c) the response of the presiding judge.
12Mr. Rappaport is right that the Appeal Division did not apply the test articulated in Groia. Whether the Appeal Division ought to have applied that test in the circumstances of Mr. Rappaport’s case is an arguable ground of appeal that is neither frivolous nor vexatious.
C. Irreparable Harm
13Irreparable harm is a harm that cannot be quantified in monetary terms or a harm that cannot be cured: RJ-MacDonald Inc. v. Canada, 1994 117 (SCC), [1994] 1 SCR 311 at p. 341. Evidence of possible, or likely, harm is not enough to satisfy this element of the test. The evidence must show that the party will suffer irreparable harm: Kitmitto et al v. Ontario Securities Commission, 2023 ONSC 1739 (Div. Ct.) at para. 13. Similarly, something more is required to establish irreparable harm than the usual financial loss, loss of professional identity or reputational loss that results from the suspension or revocation of a licence to practise a regulated profession: Kitmitto, at para. 14.
14In his affidavit, Mr. Rappaport describes the harm he will suffer if he is required to serve the five-month suspension before his appeal is heard. First, he says he will lose all his clients because, as a sole practitioner, he will have to refer all his clients to another lawyer. Second, he argues he will suffer significant financial harm if he loses his income for five months but has to continue paying his business expenses. Mr. Rappaport was not cross-examined on his affidavit.
15The Law Society argues the type of harm Mr. Rappaport describes in his affidavit does not meet the test for “irreparable harm.” The Law Society relies on the decision of this Court in Kitmitto et al v. Ontario Securities Commission, 2023 ONSC 1739 in support of its position. In that case, the three appellants were found to have committed insider trading contrary to the Securities Act, RSO 1990, c.S.5. The Capital Markets Tribunal banned each appellant from market participation for 10 years or more and ordered them to pay financial penalties ranging from $600,000 to $1,000,000. Justice Schabas was not satisfied that denying the appellants a stay of the Tribunal’s decision pending their appeals to the Divisional Court would cause them irreparable harm. Two of the appellants, Kitmitto and Vannatta, argued that they may have to declare bankruptcy if a stay was not granted. Justice Schabas found that their evidence did not establish irreparable harm because bankruptcy was only a possibility, not a certainty. The third appellant, Goss, argued that the trading ban would cause him irreparable harm because he would lose his clients and that would have a devastating impact on his own sense of identity and self-worth. Justice Schabas did not accept Goss’s evidence. Justice Schabas was not convinced that Goss would lose all, or even most, of his clients because other advisors in Goss’s firm could manage his accounts until the appeal was decided.
16In my view, Kitmitto is distinguishable on its facts from Mr. Rappaport’s case for two reasons. First, I accept Mr. Rappaport’s evidence that he will lose all or most of his clients if he is required to serve his five-month suspension now. Mr. Rappaport is a sole practitioner who practises family and estates law in Ottawa. His affidavit states that most of his clients have upcoming court appearances. Unlike in Kitmitto, Mr. Rappaport does not have partners or associates who can manage his files or appear on behalf of his clients during his suspension. Mr. Rappaport’s clients will have to be referred to other lawyers while Mr. Rappaport is serving his suspension. I accept that few, if any, of those clients will return to Mr. Rappaport five months later.
17Second, if the Appeal Division’s decision is not stayed, Mr. Rappaport will likely have served the entire five-month suspension before his appeal can be heard and decided. That was not true in Kitmitto where the appellants would only have served a fraction of their market ban while the appeal was ongoing. In my view, fully serving an administrative suspension before an appeal can be heard is the sort of harm that cannot be quantified and could be cured if Mr. Rappaport is ultimately successful on his appeal.
18I am, therefore, satisfied that Mr. Rappaport will suffer irreparable harm if the Appeal Division’s decision is not stayed.
D. Balance of Convenience
19Under the third branch of the test, I must consider which party will suffer greater harm by granting or refusing a stay: Urbancorp Toronto Management Inc, at para. 20.
20I have already found that Mr. Rappaport will suffer irreparable harm if he is denied a stay.
21On the other hand, granting a stay could damage the reputation of the legal profession and the public confidence in the Law Society’s ability to regulate its members. Mr. Rappaport has been found to have committed professional misconduct by failing to serve his clients and by failing to encourage respect for the administration of justice and ordered to serve a suspension. While Mr. Rappaport was granted a stay of the suspension pending his appeal to the Appeal Division of the Law Society Tribunal, that appeal has now been dismissed and the original finding has been upheld.
22The Law Society Act specifically states that filing an appeal does not stay the decision of the Law Society Tribunal unless this court orders otherwise: Law Society Act, s. 49.41(1). The Law Society argues that there is a public interest in Mr. Rappaport serving his suspension without delay. The Law Society also argues granting a stay will undermine the reputation of the profession and the public’s confidence in the Law Society’s ability to fulfil its regulatory role. Finally, the law society argues the public interest outweighs Mr. Rappaport’s private interest in delaying his suspension.
23In my view, the harm Mr. Rappaport will suffer if a stay is not granted is greater than the potential harm to the public confidence in the Law Society’s ability to regulate the profession. There is no evidence of any ongoing concerns about Mr. Rappaport’s competence or professionalism. The allegations all relate to one family law matter in 2018. If Mr. Rappaport is unsuccessful on his appeal, he will serve his suspension, thus satisfying the public interest in ensuring professional misconduct is properly sanctioned by the Law Society. However, if Mr. Rappaport is successful on his appeal, he could not be compensated for serving a suspension that has been overturned. I, therefore, find that the balance of convenience favours granting Mr. Rappaport a stay of the suspension pending the appeal.
E. Conclusion and Costs
24Mr. Rappaport’s motion for a stay of the Appeal Division’s decision is granted pending the release of this Court’s ruling on his appeal.
25Mr. Rappaport argued that he should be awarded $2,500 in costs if he is successful on his motion. That is the same amount the Law Society was seeking in costs if it were successful on the motion. As a self-represented litigant, Mr. Rappaport is not entitled to costs on the same basis as a litigant who retains counsel. Courts only award costs to a self-represented litigant who can demonstrate that they (a) devoted time and effort to do the work ordinarily done by a lawyer and (b) incurred an opportunity cost by forgoing remunerative activity during the time they devoted to their case: Fong v. Chan, 1999 2052 (ON CA) at para. 26. Mr. Rappaport did not file a bill of costs or any proof that he incurred an opportunity cost by representing himself. I, therefore, decline to make a costs award on this motion.
Davies J.
Released: October 29, 2024
CITATION: Rappaport v. Law Society Ontario, 2024 ONSC 5933
DIVISIONAL COURT FILE NO.: 481/24
DATE: 20241029
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Michael Israel Rappaport Appellant/Moving Party
– and –
Law Society of Ontario Respondent
REASONS FOR decision
Davies J.
Released: October 29, 2024